Is it possible to imagine a more pointed and pathetic appeal for justice and for the protection of the law against illegality and brutal treatment? This appeal for the production of legal testimony was not without its effect. Witnesses were soon forthcoming--not truthful witnesses, indeed--but witnesses nevertheless. And with the coming of these witnesses began the formal trial of the Christ, and a formal trial, under Hebrew law, could be commenced only by witnesses.

POINT III

THE INDICTMENT AGAINST JESUS WAS, IN FORM, ILLEGAL

LAW

"The entire criminal procedure of the Mosaic Code rests upon four rules: _certainty in the indictment_; publicity in the discussion; full freedom granted to the accused; and a.s.surance against all dangers or errors of testimony."--SALVADOR, "Inst.i.tutions de Mose," p. 365.

"_The Sanhedrin did not and could not originate charges_; it only investigated those brought before it."--EDERSHEIM, "Life and Times of Jesus the Messiah," vol. i. p. 309.

"_The evidence of the leading witnesses const.i.tuted the charge._ There was no other charge: no more formal indictment. Until they spoke, and spoke in the public a.s.sembly, the prisoner was scarcely an accused man. When they spoke, and the evidence of the two agreed together, it formed the legal charge, libel, or indictment, as well as the evidence for its truth."--INNES, "The Trial of Jesus Christ," p. 41.

"The only _prosecutors_ known to Talmudic criminal jurisprudence are the witnesses to the crime. Their duty is to bring the matter to the cognizance of the court, and to bear witness against the criminal. In capital cases, they are the legal executioners also.

Of an official accuser or prosecutor there is nowhere any trace in the laws of the ancient Hebrews."--MENDELSOHN, "The Criminal Jurisprudence of the Ancient Hebrews," p. 110.

FACT AND ARGUMENT

The Gospel records disclose two distinct elements of illegality in the indictment against Jesus: (1) The accusation, at the trial, was twofold, vague, and indefinite, which Mosaic law forbade; (2) it was made, in part, by Caiaphas, the high priest, who was one of the judges of Jesus; while Hebrew law forbade any but leading witnesses to present the charge.

A thorough understanding of Point III depends upon keeping clearly in mind certain well-defined elementary principles of law. In the first place, it should be remembered that in most modern jurisdictions an indictment is simply an accusation, carries with it no presumption of guilt, and has no evidentiary force. Its only function is to bring the charge against the prisoner before the court and jury, and to notify the accused of the nature of the accusation against him. But not so under the ancient Hebrew scheme of justice. Under that system there was no such body as the modern Grand Jury, and no committee of the Sanhedrin exercised similar accusatory functions. The leading witnesses, and they alone, presented charges. It follows then, of necessity, that the ancient Hebrew indictment, unlike the modern indictment, carried with it a certain presumption of guilt and had certain evidentiary force. This could not be otherwise, since the testimony of the leading witnesses was at once the indictment and the evidence offered to prove it.

Again, in the very nature of things an indictment should, and under any enlightened system of jurisprudence, does clearly advise the accused of the exact nature of the charge against him. Under no other conditions would it be possible for a prisoner to prepare his defense. Most modern codes have sought to promote clearness and certainty in indictments by requiring the charging of only one crime in one indictment, and in language so clear and simple that the nature of the offense charged may be easily understood.

Now Salvador says that "certainty in the indictment" was one of the cardinal rules upon which rested the entire criminal procedure of the Mosaic Code. Was this rule observed in framing the accusation against Jesus at the night trial before the Sanhedrin? If so, the Gospel records do not disclose the fact. It is very certain, indeed, that the learned of no age of the world since the crucifixion have been able to agree among themselves as to the exact nature of the indictment against the Christ. This subject was too exhaustively discussed in the beginning of the Brief to warrant lengthy treatment here. Suffice it to say that the record of the night trial before Caiaphas discloses two distinct charges: the charge of sedition--the threat to destroy a national inst.i.tution and to seduce the people from their ancient allegiance, in the matter of the destruction of the Temple; and the charge of blasphemy preferred by Caiaphas himself in the adjuration which he administered to Jesus. When the false witnesses failed to agree, their contradictory testimony was rejected and the charge of sedition was abandoned. And before Jesus had time to answer the question concerning sedition, another distinct charge, that of blasphemy, was made in almost the same breath.[247] Did this procedure tend to promote "certainty in the indictment"? Did it not result in the complete destruction of all clearness and certainty? Are we not justified in supposing that the silence of Jesus in the presence of His accusers was at least partially attributable to His failure to comprehend the exact nature of the charges against Him?

Again, the accusation was, in part, by Caiaphas, the high priest, who was also one of the judges of Jesus;[248] while Hebrew law forbade any but leading witnesses to present the charge. Edersheim tells us that "the Sanhedrin did not and could not originate charges; it only investigated those brought before it." If the Sanhedrin as a whole could not originate charges, because its members were judges, neither could any individual Sanhedrist do so. When the witnesses "agreed not together" in the matter of the charge of sedition, this accusation was abandoned. Caiaphas then deliberately a.s.sumed the role of accuser, in violation of the law, and charged Jesus, in the form of an adjuration, with blasphemy, in claiming to be "the Christ, the Son of G.o.d."

Confession and condemnation then followed. Only leading witnesses could prefer criminal charges under Hebrew law. Caiaphas, being a judge, could not possibly be a witness; and could not, therefore, be an accuser.

Therefore, the indictment against Jesus was illegally presented.

The writer believes that the above is a correct interpretation of the nature and number of the charges brought against the Christ, and that the legal aspects of the case are as above stated. But candor and impartiality require consideration of another view. Several excellent writers have contended that there were, in fact, not two charges preferred against Jesus but only one under different forms. These writers contend that Caiaphas and his colleagues understood that Jesus claimed supernatural power and ident.i.ty with G.o.d when He declared that He was _able_ to destroy the Temple and to build it again in three days,[249] and that the question of the high priest, "I adjure thee by the living G.o.d, that thou tell us whether thou be the Christ, the Son of G.o.d," flowed naturally from and had direct reference to the charge of being able to destroy the Temple. The advocates of this view appeal to the language of the original auditors to sustain their contention.

"Forty-and-six years was this temple in building, and wilt thou rear it again in three days?" It is insisted that these words convey the idea that those who heard Jesus understood Him to mean that He had supernatural power. There is certainly much force in the contention but it fails to meet other difficulties. In the first place, it is not clear that a threat to destroy the Temple implied a claim to supernatural power; in which case there would be no connection between the first charge and that in which it was suggested that Jesus had claimed to be the Christ, the Son of G.o.d. In the second place, the contention that the two charges are substantially the same ignores the language of Mark, "But neither so did their witness agree together,"[250] which was certainly not injected by the author of the second Gospel as a matter of mere caprice or pastime. This language, legally interpreted, means that the testimony of the false witnesses, being contradictory, was thrown aside, and that the charge concerning the destruction of the Temple was abandoned. This is the opinion of Signor Rosadi and is very weighty.

Those writers who maintain that there was only one charge, that of blasphemy, under different forms, rely upon the pa.s.sage in Matthew, "I am _able_ to destroy the temple of G.o.d and to build it again in three days," and interpret it as a claim to supernatural power in the light of the language used by those who heard it: "Forty-and-six years was this temple in building, and wilt thou rear it again in three days?" Those who hold the opposite view, that there were two distinct charges, rely upon the pa.s.sage in Mark, "I _will_ destroy this temple that is made with hands, and within three days I will build another made without hands," and interpret it in the light of a similar accusation against Stephen a few months afterwards: "For we have heard him say, that this Jesus of Nazareth _shall destroy this place_, and _shall change the customs_ which Moses delivered us."[251] This second interpretation, which we believe to be the better, establishes the existence at the trial of Christ of two distinct charges: that of sedition, based upon a threat to a.s.sault existing inst.i.tutions; and that of blasphemy, founded upon the claim of equality with G.o.d. And, in the light of this interpretation, the illegality in the form of the indictment against Jesus has been urged.

If the first construction be the true one, then the error alleged in Point III is not well founded, since the accusation was presented by witnesses, as the law required; unless it could be successfully urged that the witnesses, being _false_ witnesses, were no more competent to accuse a prisoner than to convict him upon their false testimony. In such a case the substance as well as the form of the indictment would be worthless, and the whole case would fall, through failure not only of competent testimony to convict but also of a legal indictment under which to prosecute.

Neither the Mishna nor the Gemara mentions written indictments among the ancient Hebrews. "The Jewish Encyclopedia" says that accusations were probably in writing, but that it is not certain.[252] A pa.s.sage in Salvador seems to indicate that they were in writing. "The papers in the case," he says, "were read, and the accusing witnesses were then called." "The papers" were probably none other than the indictment. But of this we are not sure, and cannot, therefore, predicate the allegation of an error upon it. From the whole context of the Scriptures, however, we are led to believe that only oral charges were preferred against Jesus.

POINT IV

THE PROCEEDINGS OF THE SANHEDRIN AGAINST JESUS WERE ILLEGAL BECAUSE THEY WERE CONDUCTED AT NIGHT

LAW

"Let a capital offence be tried during the day, but suspend it at night."--MISHNA, Sanhedrin IV. 1.

"Criminal cases can be acted upon by the various courts during day time only, by the Lesser Synhedrions from the close of the morning service till noon, and by the Great Synhedrion till evening."--MENDELSOHN, "Criminal Jurisprudence of the Ancient Hebrews," p. 112.

"The reason why the trial of a capital offense could not be held at night is because, as oral tradition says, the examination of such a charge is like the diagnosing of a wound--in either case a more thorough and searching examination can be made by daylight."--MAIMONIDES, Sanhedrin III.

FACT AND ARGUMENT

HEBREW jurisprudence positively forbade the trial of a capital case at night. The infraction of this rule involves the question of jurisdiction. A court without jurisdiction can p.r.o.nounce no valid verdict or judgment. A court has no jurisdiction if it convenes and acts at a time forbidden by law.

One is naturally disposed to deride the reason a.s.signed by Maimonides for the existence of the law against criminal proceedings at night. But it should not be forgotten that in the olden days surgery had no such aids as are at hand to-day. Modern surgical apparatus had not been invented and electric lights and the Roentgen Rays were unknown. In the light of this explanation of the great Jewish philosopher the curious inquirer after the real meaning of things naturally asks why the Areopagus of Athens always held its sessions in the night and in the dark.[253]

We have seen that Jesus was arrested in Gethsemane about midnight and that His first ecclesiastical trial took place between two and three o'clock in the morning.[254] St. Luke tells us that there was a daybreak meeting,[255] which was evidently intended to give a semblance of legality and regularity to that rule of Hebrew law that required two trials of the case.

The exact time of the beginning of the night session of the Sanhedrin is not known. It is generally supposed that the arrest took place in the garden between midnight and one o'clock. The journey to the house of Annas must have required some little time. Where this house was located n.o.body knows. According to one tradition Annas owned a house on the Mount of Olives close to the booths or bazaars under the "Two Cedars."

Stapfer believes that Jesus was taken to that place. According to another tradition the house of Annas was located on the "Hill of Evil Counsel." Barclay believes that this was the place to which Jesus was conducted. But the tradition which is most generally accepted is that which places the palace of Annas on Mount Zion near the palace of Caiaphas. It is believed by many that these two men, who were related, Annas being the father-in-law of Caiaphas, occupied different apartments in the same place. But these questions are mere matters of conjecture and have no real bearing upon the present discussion, except to show, in a general way, the length of time probably required to conduct Jesus from Gethsemane to Annas; from Annas to Caiaphas, if the latter was the one who privately examined Jesus; and thence to the meeting of the Sanhedrin. It is reasonable to suppose that at least two hours were thus consumed, which would bring Jesus to the palace of Caiaphas between two and three o'clock, if the arrest in the garden took place between twelve and one o'clock. But here, again, a difference of one or two hours would not affect the merit of the proposition stated in Point IV. For it is beyond dispute that the first trial before the Sanhedrin was had at night, which was forbidden by law.

The question has been frequently asked: Why did the Sanhedrin meet at night in violation of law? The answer to this is referable to the treachery of Judas, to the fact that he "sought opportunity to betray him unto them in the absence of the mult.i.tude," and to the thought of the Master: "But this is your hour, and the power of G.o.d." Luke tells us that the members of the Sanhedrin "feared the people."[256] Mark informs us that they had resolved not to attempt the arrest and execution of Jesus at the time of the Pa.s.sover, "lest there be an uproar of the people."[257]

Jesus had taught daily in the Temple, and had furnished ample opportunity for a legal arrest with a view to a legal trial. But His enemies did not desire this. "The chief priests and scribes sought how they might take him by craft, and put him to death."[258] The arrival of Judas from the scene of the Last Supper with a proposition of immediate betrayal of the Christ was a glad surprise to Caiaphas and his friends.

Immediate and decisive action was necessary. Not only the arrest but the trial and execution of Jesus must be accomplished with secrecy and dispatch. The greatest festival of the Jews had just commenced. Pilgrims to the feast were arriving from all parts of the Jewish kingdom. The friends and followers of Jesus were among them. His enemies had witnessed the remarkable demonstration in His honor which marked His entrance into Jerusalem only a few days before. It is not strange, then, that they "feared the people" in the matter of the summary and illegal proceedings which they had resolved to inst.i.tute against Him. They knew that the daylight trial, under proper legal forms, with the friends of Jesus as witnesses, would upset their plans by resulting in His acquittal. They resolved, therefore, to act at once, even at the expense of all forms of justice. And it will be seen that this determination to arrest and try Jesus at night, in violation of law, became the parent of nearly every legal outrage that was committed against Him. The selection of the midnight hour for such a purpose resulted not merely in a technical infraction of law, but rendered it impossible to do justice either formally or substantially under rules of Hebrew criminal procedure.

POINT V

THE PROCEEDINGS OF THE SANHEDRIN AGAINST JESUS WERE ILLEGAL BECAUSE THE COURT CONVENED BEFORE THE OFFERING OF THE MORNING SACRIFICE

LAW

"The Sanhedrin sat from the close of the morning sacrifice to the time of the evening sacrifice."--TALMUD, Jerus., Sanhedrin I. fol.

19.

"No session of the court could take place before the offering of the morning sacrifice."--MM. LeMANN, "Jesus Before the Sanhedrin," p.

109.

"Since the morning sacrifice was offered at the dawn of day, it was hardly possible for the Sanhedrin to a.s.semble until the hour after that time."--MISHNA, "Tamid, or of the Perpetual Sacrifice," C.

III.

FACT AND ARGUMENT