The Trial of Jesus from a Lawyer's Standpoint Volume I Part 17

In answer to the high priest's question, Jesus, feeling that He could not afford at such an hour and in such a place to longer conceal His Messiahs.h.i.+p, answered boldly and emphatically: "I am."[274] "And they all condemned him to be guilty of death." It will thus be seen that upon His own confession and not upon the testimony of at least two competent witnesses agreeing in all essential details, as the law required, was the Nazarene condemned to death.

If it be argued, as it has been, that the two charges of threatening to destroy the Temple and of pretending to be the "Christ, the Son of G.o.d,"

were in fact but different phases of the same charge of blasphemy, and that the two witnesses were the corroborators of the confession of Jesus, then reply must be made that the witnesses were not competent, being false witnesses, nor was their testimony legally corroborated, because it was false and contradictory.

Again, it was the rule of Hebrew law that both witnesses had to testify to all the essential elements of a complete crime. One could not furnish one link, and another another link, in order to construct a chain of evidence. Each had to testify to all the essential elements necessary to const.i.tute the legal definition of a crime. But the false witnesses did not do this. Under any view of the case, then, the testimony of these witnesses was wholly worthless, and the confession of Jesus was the solitary and illegal basis of His conviction.

The failure of the Sanhedrin to secure sufficient and competent evidence to convict Jesus must not be regarded as accidental, or as attributable to the hour and to the surroundings. The popularity of the Nazarene, outside the narrow circle of the Temple authorities, was immense. The friends.h.i.+p of Nicodemus and Joseph of Arimathea is proof that He had standing even in the Sanhedrin itself. It was therefore difficult to find witnesses who were willing to testify against Him. Besides, the acts of His ministry, while in no sense cowardly or hypocritical, had been, in general, very cautious and diplomatic. He seems to have retired, at times, into the desert or the wilderness to avoid disagreeable and even dangerous complications with the civil and ecclesiastical authorities.[275] Jesus was in no sense a politician, but He was not lacking in mother wit and practical resources. He saw through the designs of Herod Antipas, who wished to get Him out of his dominions. It will be remembered that certain Pharisees, pretending friends.h.i.+p for Him, warned Him to flee from Galilee to avoid being killed by Herod. The courage and manliness of Jesus are shown by the fact that He remained in His native province, and even sent a contemptuous message to the Tetrarch, whom He styled "that fox."[276]

At other times, Christ was compelled to defend Himself against the swarm of spies that hovered over His pathway through Samaria, along the Jordan, and around the Sea of Galilee. In His discussions with His enemies who sought to entrap Him, He displayed consummate skill in debate. His pithy sayings and incomparable ill.u.s.trations usually left His questioners defenseless and chagrined. Oftentimes in these encounters He proclaimed eternal and universal truths which other nations and later ages were to develop and enjoy. When, holding in His hand a penny with Caesar's image upon it, He said, "Render therefore unto Caesar the things which are Caesar's, and unto G.o.d the things that are G.o.d's," he foretold and stamped with approval the immortal principle that was to be embodied in the American const.i.tution and to remain the cornerstone of the American Commonwealth; a truth repeated by Roger Williams when in the forests of Rhode Island he declared that the magistrate should rule in civil matters only and that man was answerable for his religious faith to G.o.d alone. This declaration of the Nazarene is the spiritual and intellectual basis of the sublime doctrine of civil liberty and religious freedom that finds its highest expression in that separation of the Church and State which enables men of different creeds and different parties to live side by side as patriots and religionists and as comrades, though antagonists.

The replies of Jesus to those who came to "entangle him in his talk"

usually left them disconcerted and defeated, and little disposed to renew their attacks upon Him.[277] The efforts of the Pharisees to entrap Him seem to have resulted in failure everywhere and at all times.

And at the trial the Sanhedrin found itself in possession of a prisoner but with no competent evidence to establish His guilt. It was least of all prepared to convict Him of the crime of blasphemy as founded upon the claim of Messiahs.h.i.+p, for Jesus had been exceedingly cautious, during His ministry, in declaring Himself to be the Messiah. Except in the presence of the woman of Samaria, who came to draw water from the well, there is no recorded instance of an avowal of His Messiahs.h.i.+p outside the immediate circle of the disciples.[278] He forbade the devils whom He had cast out, and that recognized Him, to proclaim His Messiahs.h.i.+p.[279] When the Jews said to Him, "How long dost thou make us doubt? if thou be the Christ, tell us plainly," Jesus simply referred them to His works, and made no further answer that could be used as testimony against Him.[280] He revealed Himself to His followers as the Messiah, and permitted them to confess Him as such, but forbade them to make the matter public. "Then charged he his disciples that they should tell no man that he was Jesus, the Christ."[281]

It will thus be seen that probably no two witnesses who were legally competent to testify could have been secured to condemn Jesus upon the charge preferred at the trial. In their desperation, then, the members of the Sanhedrin were compelled to employ false testimony and a confession which was equally illegal.

POINT IX

THE CONDEMNATION OF JESUS WAS ILLEGAL BECAUSE THE VERDICT OF THE SANHEDRIN WAS UNANIMOUS

LAW

"A simultaneous and unanimous verdict of guilt rendered on the day of the trial has the effect of an acquittal."--MENDELSOHN, "Criminal Jurisprudence of the Ancient Hebrews," p. 141.

"If none of the judges defend the culprit, i.e., all p.r.o.nounce him guilty, having no defender in the court, the verdict of guilty was invalid and the sentence of death could not be executed."--RABBI WISE, "Martyrdom of Jesus," p. 74.

FACT AND ARGUMENT

FEW stranger rules can be found in the jurisprudence of the world than that provision of Hebrew law which forbade a conviction to rest upon the unanimous vote of the judges. A comparison instantaneously and almost inevitably arises in the mind between the Saxon and Hebrew requirement in the matter of unanimity in the verdict. The finest form of mind of antiquity, with the possible exception of the Greek and Roman, was the Hebrew. One of the finest types of intellect of the modern world is that of the Anglo-Saxon. The Hebrew organized the Sanhedrin, and, under G.o.d, endowed it with judicial and spiritual attributes. The Anglo-Saxon, on the sh.o.r.es of the German Ocean, originated the modern jury and invested it with its distinctive legal traits. With the Anglo-Saxon jury a unanimous verdict is necessary to convict, but with the Hebrew Sanhedrin unanimity was fatal, and resulted in an acquittal. A great modern writer[282] has declared that law is the perfection of reason. But when we contemplate the differences in Hebrew and Saxon laws we are inclined to ask, in seeking the degree of perfection, whose law and whose reason?

But, after all, the Jewish rule is not so unreasonable as it first appears, when we come to consider the reason of its origin. In the first place, as we have seen in Part II, there were no lawyers or advocates, in the modern sense, among the ancient Hebrews. The judges were his defenders. Now if the verdict was unanimous in favor of condemnation it was evident that the prisoner had had no friend or defender in court. To the Jewish mind this was almost equivalent to mob violence. It argued conspiracy, at least. The element of mercy, which was required to enter into every Hebrew verdict, was absent in such a case.

Again, this rule of unanimity was only another form or statement of the requirement that the court defer final action, in case of conviction, to the next day in order that time for deliberation and reflection might intervene. In other words, Hebrew law forbade precipitancy in capital proceedings. And what could be more precipitate than an instantaneous and unanimous verdict? "But where all suddenly agree on conviction, does it not seem," asks a modern Jewish writer, "that the convict is a victim of conspiracy and that the verdict is not the result of sober reason and calm deliberation?"

But how did they convict under Hebrew law? By a majority vote of at least two. A majority of one would acquit. A majority of two, or any majority less than unanimity, would convict.[283] If the accused had one friend in court, the verdict of condemnation would stand, since the element of mercy was present and the spirit of conspiracy or mob violence was absent. Seventy-one const.i.tuted the members.h.i.+p of the Great Sanhedrin. If all the members were present and voted, at least thirty-seven were required to convict. Thirty-six would acquit. If a bare quorum, twenty-three members, was present, at least thirteen were required to convict. Twelve would acquit.

This rule seems ridiculous and absurd, when viewed in the light of a brutal and undeniable crime. If the facts const.i.tuting such a crime had been proved against a Jewish prisoner beyond any possibility of doubt, if such facts were apparent to everybody, still it seems that the rule above stated required that the defendant have at least one advocate and one vote among the judges; else, the verdict was invalid and could not stand. Such a procedure could be justified on no other ground than that exceptional cases should not be permitted to destroy a rule of action that in its general operation had been found to be both generous and just.

Now the condemnation of Jesus was illegal because the verdict of the Sanhedrin was unanimous. We learn this from Mark, who says: "Then the high priest rent his clothes and saith, What need we any further witnesses? ye have heard the blasphemy: what think ye? And they _all_ condemned him to be guilty of death."[284] If they _all_ condemned Him, the verdict was unanimous and therefore illegal. The other Evangelists do not tell us that the verdict was unanimous; neither do they deny it.

Mark's testimony stands alone and uncontradicted; therefore we must a.s.sume that it is true.

Rabbi Wise[285] and Signor Rosadi[286] call attention to the fact that the verdict was unanimous. The former seeks to ridicule Mark as an authority because a unanimous verdict was illegal under Hebrew law, and the distinguished Hebrew writer does not conceive that Hebrew judges could have made such a mistake. Such argument, reduced to ultimate a.n.a.lysis, means, according to Rabbi Wise, that there were certain rules of Hebrew law that could not be and were never violated.

In this connection, it has been frequently asked: Was the entire Sanhedrin present at the night trial of Jesus? Were Nicodemus and Joseph of Arimathea present? If they were present, did they vote against Jesus?

These questions can be answered only in the light of the authorities.

Only two of the Gospel writers, Matthew and Mark, tell us of the night trial. Both declare that "all the council" were present.[287] The "council" (concilium) is the Vulgate, the Latin New Testament designation of the Great Sanhedrin. Then, if all the "council" were present, the Great Sanhedrin were all present.

[Ill.u.s.tration: THE BETRAYING KISS (SCHEFFER)]

Concerning the number of judges at the second or daybreak meeting of the Sanhedrin, both Matthew and Mark again declare that the full members.h.i.+p was present. Matthew says: "When the morning was come, _all_ the chief priests and elders of the people took counsel against Jesus to put him to death."[288] Mark says: "And straightway in the morning the chief priests held a consultation with the elders and scribes and the _whole council_, and bound Jesus, and carried him away, and delivered him to Pilate."[289] It should be remembered that neither Luke nor John contradicts even remotely the statements of Matthew and Mark concerning the full attendance of the members of the Sanhedrin at either the night or morning trial. The first and second Gospel writers therefore corroborate each other, and the presumption of the law is that each told the truth.

And yet most commentators and writers seem to be of the opinion that all the members of the Sanhedrin were not present at the night trial of Jesus. They insist that both Matthew and Mark were employing a figure of speech, synecdoche, when they said that "all the council" were present.

But these same writers seem to think that these same Evangelists were in earnest and speaking literally when they declared that "_all_ the chief priests and elders" and the "_whole_ council" were present at the morning trial. We shall not attempt to settle the question but will leave it to the reader to draw his own inferences. Suffice it to say that as far as the rule stated in connection with Point IX is concerned, it was immaterial whether the full council was present at either meeting. The rule against unanimity applied to a bare quorum or to any number less than the full Sanhedrin. It was the unanimity itself, of however few members, that carried with it the spirit and suggestion of mob violence and conspiracy against which Hebrew law protested.

The question of the number of members that were present at the different meetings of the Sanhedrin has been discussed in the light of history, and as bearing upon the conduct of Nicodemus and Joseph of Arimathea, who were friends of Jesus. Nicodemus was certainly a member of the Great Sanhedrin. This we learn from two pa.s.sages of New Testament scripture.[290] It is also believed that Joseph of Arimathea was a member from a mere suggestion in another pa.s.sage.[291] Did these friends of the Christ vote against Him? If they were members of the court; if Matthew and Mark wrote literally when they said that "all the council"

were present; and if Mark wrote literally and truthfully when he said that "they _all_ condemned him to be guilty of death"; then it naturally and inevitably follows that both Nicodemus and Joseph voted against Jesus.

[Ill.u.s.tration: THE ARREST OF JESUS (HOFFMAN)]

A number of arguments have been offered against this contention. In the first place, it is said that at a previous meeting of the Sanhedrin Nicodemus defended Jesus by asking his fellow-judges this question: "Doth our law judge any man before it hear him and know what he doeth?"[292] It is a.s.serted that there is no good reason to believe that Nicodemus defended Jesus at this meeting and turned against Him at a subsequent one, that there is a presumption of a continuance of fidelity. But is this good reasoning? Did not Peter cut off the ear of the high priest's servant, Malchus, in defense of Jesus at midnight, in the garden, and then within three hours afterwards deny that he knew Jesus? There is no good reason to believe that Nicodemus was braver or more constant than Peter, for the former seems to have been either ashamed or afraid to express his affection for the Master during the daytime, but preferred to do it at night.[293]

Concerning the part taken by Nicodemus in the final proceedings, Rosadi says: "The verdict was unanimous. The members of the Sanhedrin who were secretly favorable to the Accused were either absent or else they voted against him. Nicodemus was amongst the absentees, or amongst those that voted against him. At all events, he did not raise his voice against the p.r.o.nouncement expressed by acclamation."

If Joseph of Arimathea was a member of the Great Sanhedrin, it seems that he "had not consented to the counsel and the deed of them."[294]

But it is impossible to tell certainly to which one of the three meetings of the Sanhedrin, held within the six months preceding the crucifixion, this language refers. The defense of Jesus offered by Nicodemus was certainly not at the final meeting which condemned Jesus.

It may be that the reference to the protest of Joseph of Arimathea also referred to a prior meeting. Its connection in Luke seems to make it refer to the last trial, but this is not certain. Neither is it certain that Joseph was a member of the Great Sanhedrin, and his failure to consent, if he were not a member, would not disturb the contention made in Point IX of the Brief. Even if he were a member, his failure to consent would not destroy the contention, since ancient Hebrew judges, like modern American jurors, could have first protested against their action and then have voted with them. The polling of the jury, under modern law, has reference, among other things, to this state of affairs.

But we may admit that both Nicodemus and Joseph of Arimathea, as well as many others, were absent, as Rosadi suggests, and still contend that the verdict against Jesus was illegal because it was unanimous, as Mark a.s.sures us, since the number of judges present was immaterial, provided there was a quorum of at least twenty-three and their verdict was unanimous against the accused. According to the second Gospel writer, there seems to be no doubt that this was the case in the judgment p.r.o.nounced against Jesus.

POINT X

THE PROCEEDINGS AGAINST JESUS WERE ILLEGAL IN THAT: (1) THE SENTENCE OF CONDEMNATION WAS p.r.o.nOUNCED IN A PLACE FORBIDDEN BY LAW; (2) THE HIGH PRIEST RENT HIS CLOTHES; (3) THE BALLOTING WAS IRREGULAR

LAW

"After leaving the hall Gazith no sentence of death can be pa.s.sed upon anyone soever."--TALMUD, Bab., Abodah Zarah, or of Idolatry, Chap. I. fol. 8.

"A sentence of death can be p.r.o.nounced only so long as the Sanhedrin holds its sessions in the appointed place."--MAIMONIDES, Sanhedrin XIV.

"And he that is the high priest among his brethren, upon whose head the anointing oil was poured, and that is consecrated to put on the garments, shall not uncover his head, nor rend his clothes."--LEVITICUS xxi. 10.

"And Moses said unto Aaron, and unto Eleazar, and unto Ithamar, his sons, Uncover not your heads, neither rend your clothes; lest ye die, and lest wrath come upon all the people."--LEVITICUS x. 6.

"Let the judges each in his turn absolve or condemn."--MISHNA, Sanhedrin XV. 5.

"The members of the Sanhedrin were seated in the form of a semicircle at the extremity of which a secretary was placed, whose business it was to record the votes. One of these secretaries recorded the votes in favor of the accused, the other those against him."--MISHNA, Sanhedrin IV. 3.

"In ordinary cases the judges voted according to seniority, the oldest commencing; in a capital trial, the reverse order was followed. That the younger members of the Sanhedrin should not be influenced by the views or arguments of their more mature, more experienced colleagues, the junior judge was in these cases always the first to p.r.o.nounce for or against a conviction."--BENNY, "Criminal Code of the Jews," pp. 73, 74.