The Trial of Jesus from a Lawyer's Standpoint Volume II Part 2

And it was this law that inaugurated the popular jurisdiction of the _comitia_. The result was that for more than three hundred years the final determination of the question of life or death was in the hands of the people themselves. From the pa.s.sage of the Valerian law the function of the magistrates was limited to the duty of convincing the people of the guilt of an alleged criminal against whom they themselves had already p.r.o.nounced a preliminary sentence. The magistrates were, therefore, not so much judges as prosecutors; the people were the final judges in the case.

_Mode of Trial in the Comitia, or Public a.s.sembly._--On a certain day, the prosecuting magistrate, who had himself p.r.o.nounced the preliminary sentence against an accused person who had appealed to the people in their public a.s.sembly, mounted the _rostra_, and called the people together by the voice of a herald. He then made a proclamation that on a certain day he would bring an accusation against a certain person upon a given charge. At the same time, he called upon this person to come forward and hear the charges against him. The defendant then presented himself, listened to the accusation, and immediately furnished bond for his appearance, or in default of bail, was thrown into prison. Upon the day announced at the opening of the trial, the prosecuting magistrate again mounted the _rostra_, and summoned the accused by a herald, if he was at large, or had him brought forth if he was in prison. The prosecutor then produced evidence, oral and doc.u.mentary, against the prisoner. The indictment had to be in writing, and was published on three market days in the Forum. The prosecution came to an end on the third day, and the accused then began his defense by mounting the _rostra_ with his patron and presenting evidence in his own behalf. The prosecutor then announced that on a certain day he would ask the people to render judgment by their votes. In the early years of the republic, the people voted by shouting their approval or disapproval of the charges made; but later a tablet bearing one of the two letters V. (_uti rogas_) or A. (_absolvo_) was used as a ballot.

The effect of popular jurisdiction in criminal processes at Rome was in the nature of a two-edged sword that cut both ways. It was beneficial in the limitations it imposed upon the conduct of single magistrates who were too often capricious and despotic. But this benefit was purchased at the price of a kind of popular despotism not less dangerous in its way. It has always been characteristic of popular a.s.semblies that their decisions have been more the outcome of pa.s.sion and prejudice than the result of calm wisdom and absolute justice. The trouble at Rome was that the people were both legislators and judges in their public a.s.semblies; and it nearly always happened that the lawmakers rose above and trampled upon the very laws which they themselves had made. The natural offspring of this state of things is either anarchy or despotism; and it was only the marvelous vitality of the Roman Commonwealth that enabled it to survive.

The reports of the great criminal trials before the _comitia_ reveal the inherent weakness of a system of popular jurisdiction in criminal matters. Personal and political considerations foreign to the merits of the case were allowed to take the place of competent evidence; and issues of right and expediency were too frequently mixed up. The accused, at times, trusted not so much in the righteousness of his cause as in the feelings of compa.s.sion and prejudice that moved the people as popular judges. And to excite these feelings the most ludicrous and undignified steps were sometimes taken. The defendant nearly always appeared at the trial in mourning garb, frequently let his hair and beard grow long, and often exhibited the scars and wounds received in battle whilst fighting for his country. He sometimes offered prayers to the immortal G.o.ds and wept bitterly; at other times he caused his children and other relatives to appear at the trial, wailing, and tearing their clothes. Not content with presenting all the pathetic features of his own life, he left nothing undone to expose his opponents to hatred and contempt. It thus happened that many of the great criminal causes of Rome were mere farcical proceedings. A few instances may be cited.

Horatius, though tried in the time of the third Roman king, was pardoned by the people for the murder of his sister because of his heroic deed in single combat with the three Curiatii, and because his father had lost three children in the service of the state.

In the year 98, Manlius Aquillius, the pacificator of Sicily, was tried for embezzlement. Marcus Antonius, his advocate, ended his argument for the defense by tearing the tunic of Aquillius to show the breast of the veteran warrior covered with scars. The people were moved to tears and Aquillius was acquitted, although the evidence was very clear against him.

In the trial of M. Manlius, 384 B.C., new tactics were employed. The accused refused to appear in mourning. There was no weeping in his behalf. On the other hand, Manlius relied upon his services to the state for acquittal. He brought forward four hundred citizens who by his generosity he had saved from bondage for debt; he exhibited the spoils taken from thirty slain enemies, also military decorations received for bravery in battle--among them two mural and eight civic crowns; he then produced many citizens rescued by him from the hands of the enemy; he then bared his breast and exhibited the scars received by him in war; and, lastly, turning toward the Capitol, he implored Jupiter to protect him, and to infuse, at this moment, into the Roman people, his judges, the same spirit of courage and patriotism that had given him strength to save the city of Rome and his whole country from the hands of the Gauls.

He begged the people to keep their eyes fixed on the Capitol while they were p.r.o.nouncing sentence against him to whom they owed life and liberty. It is said that his prosecutors despaired of convicting him amidst such surroundings, and adjourned the trial to another place, where the Capitol could not be seen; and that thereupon the conviction of Manlius was secured and his condemnation p.r.o.nounced.

In the year 185 B.C., the tribune M. Naevius, at the instigation of Cato, accused Scipio Africa.n.u.s before the tribes of having been bribed to secure a dishonorable peace. It was clearly evident that a charge of this kind could not well be sustained by evidence; but it was believed that a conviction could be secured by an appeal to the pa.s.sion and prejudice of the mult.i.tude. But this advantage operated as greatly in favor of Scipio as it did in favor of his accusers. And he did not fail to use the advantage to the fullest extent. In seeming imitation of M.

Manlius, two hundred years before, he appealed for acquittal to the people on account of his public services. He refused to appear in mourning, offered no evidence in his own behalf, nor did he exhibit the usual humility of an accused Roman before his countrymen. With proud disdain, he spurned the unworthy imputation of bribery, and pointed the people to the magnificent achievements of his brilliant public career.

He reminded them that the day of the trial was itself the anniversary of his victory over the greatest enemy that Rome ever had, at Zama. It was degrading, he exclaimed, both to him and to the Roman nation, to bring such a charge on this day against the man to whom it was due that the Commonwealth of Rome still existed. He refused to lower himself, he said, by listening to the insolent charges of a vulgar brawler who had never done anything for the state. He declared that instead he would repair at once to the temple of Jupiter and render thanks for his victory over Hannibal to the protecting G.o.ds of his country. With these words, he left the Forum and went to the Capitol and from there to his house, accompanied by the great majority of the people, while the accusing tribune and his official staff were left alone in the market place.

The inevitable result of these cases of miscarriage of justice, in which patriotic bravado and rhetorical claptrap took the place of legal rules, was a desire and demand for the reform of criminal procedure. Besides, it had ever been found troublesome and inconvenient to summon the whole body of the Roman people to try ordinary offenses. It was only in cases of great gravity that the ponderous machinery of the _comitia centuriata_ could be set in motion. This difficulty was increased with the growth of the republic, in which crimes also grew in number and magnitude. The necessity for the reform of the criminal law resulted in the inst.i.tution of permanent tribunals (_quaestiones perpetuae_). A series of legal enactments accomplished this result. The earliest law that created a permanent _quaestio_ was the _lex Calpurnia_ of 149 B.C. And it was the proceedings in these courts, which we shall now describe, that should have guided Pilate in the trial of Jesus.

_Mode of Trial in the Permanent Tribunals._--We shall attempt to trace in the remaining pages of this chapter the successive steps in the trial of criminal cases before the permanent tribunals at Rome.

_First Stage_ (_postulatio_).--A Roman criminal trial before a _quaestio perpetua_ commenced with an application to the presiding magistrate, the praetor or the _iudex quaestionis_, for permission to bring a criminal charge against a certain person. The technical Latin expression for this request to prosecute is _postulatio_. It should be here noted that State's attorneys or public prosecutors, in a modern sense, were not known to the Romans at this time. Private citizens took upon themselves public prosecutions in behalf of the state. They were encouraged to do this from motives of personal profit as well as patriotic interest in the welfare of the community. As young men in modern times, just admitted to the bar, often accept criminal cases by a.s.signment from the court in order to make a beginning in their professional careers, so young Roman n.o.bles in ancient times sought to make reputations for themselves by accusing and prosecuting public delinquents. And not only professional reputation, but financial compensation as well could be gained in this way. The Roman laws of the time of Cicero provided that a successful prosecutor should receive one-fourth part of the property confiscated or the fine imposed. A Macedonian inscription offered a reward of 200 denarii to the prosecutor who should bring to justice the desecrators of a tomb.[19]

_Second Stage_ (_divinatio_).--It often happened that more than one accuser desired to prosecute a single offense; but more than one prosecutor was not permitted by Roman law unless there was more than one crime charged. Then, in case of a concurrence of would-be accusers, a preliminary trial was had to determine which one of these was best fitted to bring the accusation. This initial hearing was known in Roman law as the _divinatio_. It was indeed more than a mere hearing; it was a regular trial in which the question of the fitness of the different candidates for the position of _delator_ was argued before the president and the jury. This jury was in many cases distinct from the one that finally tried the case on the merits. The purpose of the whole proceeding known as the _divinatio_ was to secure a prosecutor who was at once both able and sincere; and both these qualities were generally very strenuously urged by all those who desired to a.s.sume the role of accuser. Indeed all personal qualifications involving the mental and moral attributes of the would-be prosecutors were pointedly urged. At the hearing, the different candidates frequently became animated and even bitter opponents of each other. Crimination and recrimination then followed as a natural consequence. An applicant might show that he was thoroughly familiar with the affairs of a province, as a special fitness in the prosecution of a public official for extortion in that province.

An opponent, on the other hand, might show that said applicant had been a.s.sociated with said official in the government of the province and had been, and was now, on the friendliest terms with him. After the meritorious qualifications of all the claimants had been presented, the president and jury rendered their decision. The details of the evidence affecting the merits of the charge were not considered at this preliminary trial. Only such facts were considered as affected the personal qualifications of the different candidates for the place of accuser. When these qualifications were about equally balanced in point of merit between two applicants, the abler speaker was generally chosen.

_Third Stage_ (_nominis delatio_).--It frequently happened that the _postulatio_, the request to prosecute, was not followed by the _divinatio_, the preliminary hearing on the merits of different applicants, because there was only one would-be accuser; and his qualifications were beyond dispute. In such a case, when a request to bring a criminal charge against a certain person had been presented by a citizen to the praetor, there followed, after a certain interval of time, a private hearing before the president of the court for the purpose of gaining fuller and more definite information concerning the charge. This private proceeding was styled the _nominis_ or _criminis delatio_, and took place before the president alone. Its main object was to secure a specification of the personality of the accused as well as of the charges brought against him. At this stage of the trial the presence of the accused person was necessary, unless he was absent under valid excuse. The _lex Memmia_, pa.s.sed in the year 114 B.C., permitted a delinquent to plead that he was absent from Rome on public business, as an excuse for not appearing at the _nominis delatio_. In the year 58 B.C., the tribune L. Antistius impeached Julius Caesar. But the colleagues of Antistius excused Caesar from personal attendance because he was absent in the service of the state in Gaul. But, if the accused appeared at the _nominis delatio_, the prosecutor interrogated him at length concerning the facts of the crime. The purpose of this interrogation (_interrogatio_) was to satisfy the president that there was a prima facie case to carry before the regular tribunal in open trial. The proceedings of the _nominis delatio_ were thus in the nature of a modern Grand Jury investigation, inst.i.tuted to determine if a serious prosecution should be had.

_Fourth Stage_ (_inscriptio_).--If the interrogation convinced the president that the prosecutor had a prima facie case to take before the permanent tribunal, he framed a form of indictment called the _inscriptio_. This indictment was signed by the chief prosecutor and also by a number of witnesses against the accused called _subscriptores_. The charge was now definitely fixed; and, from this moment, it was the only offense that could be prosecuted at the trial.

The drawing up of this charge by the president was similar to the framing of an indictment by a modern Grand Jury.

_Fifth Stage_ (_nominis receptio_).--After the indictment or inscription had been framed, it was formally received by the president. This act was styled the _nominis receptio_ and corresponds, in a general way, with the presentment of an indictment by a modern Grand Jury. When the _nominis receptio_ was complete, the case was said to be _in judicio_, and the accused was said to be _in reatu_. The president then fixed a day certain for the appearance of the accused and the beginning of the trial. The time fixed was usually ten days from the _nominis receptio_.

However, a longer time was allowed if evidence had to be secured from beyond the sea. Thirty days were allowed the accusers in the prosecution of Scaurus. Cicero was given one hundred and ten days to secure evidence against Verres; but he actually employed only sixty. The time granted the prosecutor was also required by the law to be utilized by the defendant in preparing his case.

The preliminary steps in the prosecution were now complete, and the accused awaited the day of trial. In the meantime, he was allowed to go at large, even when charged with a grave offense like murder.

Imprisonment to prevent escape had almost ceased at the time of which we write. If the evidence against the accused was weak, it was felt that he would certainly appear at the trial. If the evidence against him was very strong, it was thought that he would seek to escape a sentence of death in voluntary exile, a step which Romans always encouraged, as they were averse, at all times, to putting a Roman citizen to death.

_Sixth Stage_ (_citatio_).--At the expiration of the time designated by the president for the beginning of the trial, the proceedings before the judges began. All the necessary parties, including the judges or jurors, were summoned by a herald to appear. This procedure was termed the _citatio_. Strange to say, if the accused failed to appear the case could proceed without him. The reason for the requirement of his presence at the _nominis delatio_, but not at the trial is not clear; especially when viewed in the light of a modern trial in which the defendant must be present at every important step in the proceedings.

Under Roman procedure, the presence of the defendant was not necessary, whether he was in voluntary exile, or was obstinately absent. In 52 B.C., Milo was condemned in his absence; and we read in Plutarch that the a.s.sa.s.sins of Caesar were tried in their absence, 43 B.C.

Excusable absence necessitated an adjournment of the case. The chief grounds for an adjournment were: (1) Absence from the city in the public service; (2) that the accused was compelled to appear in another court on the same day; (3) illness.

The absence of the accused did not prevent the prosecution of the case, but the nonappearance of the prosecutor on the day fixed for the beginning of the trial usually terminated the proceedings at once. The fact that the case had to be dismissed if the accuser failed to appear only serves to ill.u.s.trate how dependent the state was on the sincerity of the citizen who undertook the prosecution. The obligations of the prosecutor honestly and vigorously to follow up a suit which he had set in motion were felt to be so serious a matter by the Romans that special laws were pa.s.sed to hold him in the line of duty. The _lex Remmia_ provided that if any citizen knowingly accused another citizen falsely of a crime, the accuser should be prosecuted for calumny (_calumnia_). It further provided that, in case of conviction, the letter K should be branded on the forehead of the condemned. Such laws were found necessary to protect the good name of Roman citizens against bad men who desired to use the legal machinery of the state to gratify private malevolence against their enemies. It may thus be seen that the system which permitted public prosecutions on the motion of private citizens was attended by both good and bad results. Cicero regarded such a system as a positive benefit to the state.[20] Its undoubted effect was to place a check upon corruption in public office by subjecting the acts of public officials to the scrutiny and, if need be, to the censure of every man in the nation. On the other hand, accusers in public prosecutions came finally to be identified, in the public mind, with coa.r.s.e and vulgar informers whose only motive in making public accusations was to create private gain. So thoroughly were they despised that one of the parasites of Plautus scornfully exclaims that he would not exchange his vocation, though low and groveling, with that of the man who makes a legal proceeding "his net wherein to catch another man's goods."[21]

_Seventh Stage_ (_impaneling the judges_).--But if the prosecutor appeared in due time, the trial formally began by the impaneling of the judges. This was usually done by the praetor or _iudex quaestionis_ who, at the beginning of the trial, placed the names of the complete panel of jurors, inscribed on white tablets, into an urn, and then drew out a certain number. Both prosecutor and accused had the right to challenge a limited number, as the names were being drawn. The number of challenges allowed varied from time to time.

_Eighth Stage_ (_beginning of the trial_).--When the judges had been impaneled, the regular proceedings began. The place of trial was the Forum. The curule chair of the praetor and the benches of the judges, const.i.tuting the tribunal, were here placed. On the ground in front of the raised platform upon which the praetor and judges sat, were arranged the benches of the parties, their advocates and witnesses. Like the ancient Hebrew law, Roman law required that criminal cases should be tried only by daylight, that is, between daybreak and one hour before sunset. At the opening of the trial, the prosecutor, backed by the _subscriptores_, and the accused, supported by his patrons and advocates, appeared before the tribunal.

In a modern criminal trial the case is opened by the introduction of testimony which is followed by regular speeches of counsel for the people and the defendant. In those jurisdictions where opening addresses are required before the examination of the witnesses, the purpose is to inform the jury of the facts which it is proposed to prove. Argument and characterization are not permitted in these opening speeches. The real speeches in which argument and ill.u.s.tration are permitted come after the evidence has been introduced. The purpose of these closing speeches is to a.s.sist the jury in determining matters of fact from conflicting testimony.

Under the Roman system of trial in criminal cases, the order was reversed. The regular speeches containing argument, characterization, and ill.u.s.tration, as well as a statement of the facts proposed to be proved, were made in the very beginning. Evidence was then introduced to show that the orators had told the truth in their speeches.

It is not practicable in this place to discuss the kinds and relevancy of evidence under Roman criminal procedure. Suffice it to say that slaves were always examined under torture.

The close of the evidence was followed by the judgment of the tribunal.

_Ninth Stage_ (_voting of the judges_).--The judges voted by ballot, and a majority of votes decided the verdict. The balloting was done with tablets containing the letters A. (_absolvo_), C. (_condemno_) and N. L.

(_non liquet_). When the votes had been cast, the tablets were then counted by the president of the tribunal. If the result indicated a condemnation, he p.r.o.nounced the word _fecisse_; if an acquittal, the phrase, _non fecisse videtur_; if a doubtful verdict (_non liquet_), the words _amplius esse cognoscendum_. The result of a doubtful (_non liquet_) verdict was a retrial of the case at some future time.

Such were the main features of the trial of a capital case at Rome at the date of the crucifixion. Such was the model which, according to the best authorities, Pilate was bound to follow in the trial of Jesus. Did he imitate this model? Did he observe these rules and regulations? We shall see.

CHAPTER V

ROMAN FORMS OF PUNISHMENT

According to Gibbon, the laws of the Twelve Tables, like the statutes of Draco, were written in blood. These famous decrees sanctioned the frightful principle of the _lex talionis_; and prescribed for numerous crimes many horrible forms of punishment. The hurling from the Tarpeian Rock was mild in comparison with other modes of execution. The traitor to his country had his hands tied behind his back, his head shrouded in a veil, was then scourged by a lictor, and was afterwards crucified, in the midst of the Forum by being nailed to the _arbor infelix_. A malicious incendiary, on a principle of retaliation, was delivered to the flames. He was burned to death by being wrapped in a garment covered with pitch which was then set on fire.[22] A parricide was cast into the Tiber or the sea, inclosed in a sack, to which a c.o.c.k, a viper, a dog, and a monkey had been successively added as fit companions in death.[23]

But the development of Roman jurisprudence and the growth of Roman civilization witnessed a gradual diminution in the severity of penal sanctions, in the case of free citizens, until voluntary exile was the worst punishment to which a wearer of the toga was compelled to submit.

The Porcian and Valerian laws prohibited the magistrates from putting any Roman citizen to death. The principle underlying these laws was the offspring of a proud and patriotic sentiment which exempted the masters of the world from the extreme penalties reserved for barbarians and slaves. Greenidge, interpreting Cicero, very elegantly expresses this sentiment: "It is a _facinus_ to put a Roman citizen in bonds, a _scelus_ to scourge him, _prope parricidium_ to put him to death."

The subject of this volume limits the discussion in this chapter to a single Roman punishment: Crucifixion. Around this word gather the most frightful memories and, at the same time, the sweetest and sublimest hopes of the human race. A thorough appreciation of the trial of Jesus, it is felt, renders necessary a comparatively exhaustive treatment of the punishment in which all the horrors and illegalities of the proceedings against Him culminated.

_History._--Tradition attributes the origin of crucifixion, the most frightful and inhuman form of punishment ever known, to a woman, Semiramis, Queen of a.s.syria. We are reminded by this that quartering, drawing at a horse's tail, breaking on the wheel, burning and torture with pincers, were provisions in a codex bearing the name of a woman: Maria Theresa.[24]

Crucifixion was practiced by the ancient Egyptians, Carthaginians, Persians, Germans, a.s.syrians, Greeks, and Romans. The Romans employed this form of punishment on a colossal scale. The Roman general Varus crucified 2,000 Jews in one day at the gates of Jerusalem. The close of the war with Spartacus, the gladiator, witnessed the crucifixion of 10,000 slaves between Capua and Rome.

Crucifixion, as a form of punishment, was unknown to the ancient Hebrews. The penalty of death was enforced among them by burning, strangling, decapitation, and stoning. The "hanging" of criminals "on a tree," mentioned in Deut. xxi. 22, was a posthumous indignity offered the body of the criminal after death by stoning, and struck horror to the soul of every pious Israelite who beheld it. Among the Romans also degradation was a part of the infliction, since crucifixion was peculiarly a _supplicium servile_. Only the vilest criminals, among free men, such as were guilty of robbery, piracy, a.s.sa.s.sination, perjury, sedition, treason, and desertion from the army, met death in this way.

The _jus civitatis_ protected Roman citizens against this punishment.

_Mode of Crucifixion._--A sentence of death having been p.r.o.nounced by a Roman magistrate or tribunal, scourging became a preliminary to execution. This was done with the terrible _flagellum_ into which the soldiers frequently stuck nails, pieces of bone, and other hard substances to heighten the pain which was often so intense as to produce death. The victim was generally bound to a column to be scourged. It was claimed by Jerome, Prudentius, Gregory of Tours, and others that they had seen the one to which Jesus was bound before His scourging began.

After the flagellation, the prisoner was conducted to the place of execution. This was outside the city, often in some public road, or other conspicuous place like the Campus Martius at Rome. The criminal was compelled to carry his own cross; and when he had arrived at the place of crucifixion, he was compelled to watch the preparations for his torture. Before his eyes and in his presence, the cross was driven into the ground; and, after having been stripped naked, he was lifted upon and nailed to it. It sometimes happened that he was stretched upon it first and then lifted with it from the ground. The former method was the more common, however, as it was desired to strike terror into the victim by the sight of the erection of the cross. The body was fastened to the cross by nails driven into the hands and sometimes into the feet; more frequently, however, the feet were merely bound by cords.

The pictures of crosses in works of art are misrepresentations, in that they are too large and too high. The real cross of antiquity was very little longer than the victim, whose head was near the top, and whose feet often hung only twelve or fifteen inches from the ground. Pictorial art is also false because it fails to show the projecting beam from near the center of the cross upon which the criminal sat. That there was such a beam is attested by the almost unanimous voice of antiquity.

Crucifixion was conducted, under Roman auspices, by a _carnifex_, or hangman, a.s.sisted by a band of soldiers. At Rome, execution was done under the supervision of the _Triumviri Capitales_. The duty of the soldiers was not only to erect the cross and nail the victim to it, but also to watch him until he was dead. This was a necessary precaution to prevent friends and relatives from taking the criminal down and from carrying him away, since he sometimes continued to live upon the cross during several days. If taken down in time, the suffering man might easily be resuscitated and restored to health. Josephus tells us that three victims were ordered to be taken down by t.i.tus at his request, and that one of them recovered. "In the later persecutions of the Christians, the guards remained four or six days by the dead, in order to secure them to the wild beasts and to cut off all possibility of burial and resurrection; and in Lyons the Christians were not once able by offers of much gold to obtain the privilege of showing compa.s.sion upon the victims of the pagan popular fury. Sometimes, however, particularly on festival days, e.g., the birthdays of the emperors, the corpse was given up to the friends of the deceased, either for money or without money, although even Augustus could be cruel enough to turn a deaf ear to the entreaties of the condemned for sepulture."[25]

Roman records tell us that the soldiers frequently hastened death by breaking the legs of the criminal; at other times, fires were built about the cross beneath him; and, again, wild beasts were turned loose upon him.

It was the general custom to allow the body to remain and rot upon the cross, or to be devoured by wild beasts and birds of prey. "Distracted relatives and friends saw the birds of prey attack the very faces of those whom they loved; and piety often took pains to scare away the birds by day and the beasts by night, or to outwit the guards that watched the dead."[26]

Sepulture was generally forbidden by law, though there were exceptions to the rule. At the request of Joseph of Arimathea, Pilate consented that Jesus should be taken down and buried.[27] A national exception seems also to have been made in the case of the Jews on account of the requirements of Deut. xxi. 22, 23.

_Pathology._--The following pathological phases of death by crucifixion are from a treatise by the celebrated physician, Richter (in John's "Bibl. Arch."), which have been reproduced in Strong and McClintock's "Cyclopedia":