The Trial of Jesus from a Lawyer's Standpoint Volume II Part 8

Here we have presented the indictment, the first step in a criminal proceeding; and it was presented not voluntarily, but because a Roman judge, acting judicially, demanded and forced its presentment.

2. The Examination, or _Interrogatio_.

Not content with knowing the nature of the charges against the prisoner, Pilate insisted on finding out whether they were true or not. He accordingly took Jesus inside the palace and interrogated Him. With true judicial tact, he brushed aside the first two accusations as unimportant, and came with pointed directness to the material question:

"Art thou the King of the Jews?"

This interrogation bears the impress of a judicial inquiry, touching a matter involving the question of high treason, the charge against the prisoner. It clearly indicates a legal proceeding in progress. And when Jesus made reply that seemed to indicate guilt, the practiced ear of the Roman judge caught the suggestion of a criminal confession, and he asked impatiently:

"Art thou a King then?"

This question indicates seriousness and a resolution to get at the bottom of the matter with a view to a serious judicial determination of the affair.

3. The Defense, or _Excusatio_.

In reply to the question of the judge, the prisoner answered:

"My kingdom is not of this world."

This language indicates that Jesus was conscious of the solemnity of the proceedings; and that He recognized the right of Pilate to interrogate Him judicially. His answer seemed to say: "I recognize your authority in matters of this life and this world. If my claims to kings.h.i.+p were temporal, I fully appreciate that they would be treasonable; and that, as the representative of Caesar, you would be justified in delivering me to death. But my pretensions to royalty are spiritual, and this places the matter beyond your reach."

The defense of Jesus was in the nature of what we call in modern pleading a Confession and Avoidance: "A plea which admits, in words or in effect, the truth of the matter contained in the Declaration; and alleges some new matter to avoid the effect of it, and shows that the plaintiff is, notwithstanding, not ent.i.tled to his action."

It may be a.n.a.lyzed thus:

Confession: Inside the palace, Pilate asked Jesus the question: "Art thou the King of the Jews?" According to St. Matthew, Jesus answered: "Thou sayest";[113] according to St. Mark: "Thou sayest it";[114]

according to St. Luke: "Thou sayest it";[115] according to St. John: "Thou sayest that I am a king."[116]

All these replies are identical in signification, and mean: Thou sayest it, because I am really a king. In other words, He simply confessed that He was a king. Then came His real defense.

Avoidance: "My kingdom is not of this world: if my kingdom were of this world, then would my servants fight, that I should not be delivered to the Jews: but now is my kingdom not from hence.... To this end was I born and for this cause came I into the world, that I should bear witness of the truth. Everyone that is of the truth heareth my voice."

After having confessed claims to kings.h.i.+p, and having thereby made Himself momentarily liable on the charge of high treason, He at once avoids the effect of the declaration by alleging new matter which exempted Him from the operation of the _crimen Laesae Majestatis_. He boldly declares His kings.h.i.+p, but places His kingdom beyond the skies in the realm of truth and spirit. He a.s.serts a bold ant.i.thesis between the Empire of Caesar and the Kingdom of G.o.d. He cheerfully acknowledges the procurators.h.i.+p of Pilate in the first, but fearlessly proclaims His own Messiahs.h.i.+p in the second.

4. The Acquittal, or _Absolutio_.

It is more than probable that Pilate's heathen soul mocked the heavenly claims of the lowly prisoner in his presence, but his keenly discerning Roman intellect marked at once the distinction between an earthly and a heavenly kingdom. He saw clearly that their boundaries nowhere conflicted, and that treasonable contact was impossible. He judged that Jesus was simply a gentle enthusiast whose pretensions were harmless.

Accordingly, he went out to the mob and p.r.o.nounced a verdict of "not guilty." Solemnly raising his hand, he proclaimed the sentence of acquittal:

"I find in him no fault at all."

This language is not the cla.s.sical legal phraseology of a Roman verdict of acquittal. The Latin word for a single ballot was _absolvo_; the words of a collective judgment of a bench of judges was _non fecisse videtur_. The language of St. John, though that of a layman, is equally as effectual, if not so formal and judicial.

More than any other feature of the case, the verdict of acquittal, "I find in him no fault at all," indicates the regularity and solemnity of a judicial proceeding. Standing alone, it would indicate the close of a regular trial in which a court having jurisdiction had sat in judgment upon the life or liberty of an alleged criminal.

If to these essential elements of a trial which the Gospel records affirmatively disclose be added other necessary elements of a regular Roman trial which legal presumption supplies, because these records do not deny their existence, we have then in the proceedings against Jesus all the important features of Roman criminal procedure involving the question of life or death. That several essential elements are absent is evident from a reasonable construction of the statements of the Evangelists. That which most forcibly negatives the existence of a regular trial was the precipitancy with which the proceedings were conducted before Pilate. We have seen that ten days were allowed at Rome after the _nominis receptio_ to secure testimony and prepare the case before the beginning of the trial. This rule was certainly not observed at the trial of Jesus. But several irregularities which are apparent from a perusal of the Gospel histories may be explained from the fact that Jesus was not a Roman citizen and was not, therefore, ent.i.tled to a strict observance of Roman law in the proceedings against him.

The foregoing a.n.a.lysis and summary apply only to the proceedings of the first appearance of Jesus before Pilate. It was at this time that the real Roman trial took place. All subsequent proceedings were irregular, tumultuous and absolutely illegal. The examination of Jesus by Herod cannot, strictly speaking, be called a trial. The usual explanation of the sending of the prisoner to Herod is that Pilate learned that He was a native and citizen of Galilee; and that, desiring to rid himself of an embarra.s.sing subject, he determined to transfer the accused from the _forum apprehensionis_ to the _forum originis vel domicilii_. It has frequently been a.s.serted that it was usual in Roman procedure to transfer a prisoner from the place of arrest to the place of his origin or residence. There seems to be no authority for this contention. It may or may not have been true as a general proposition. But it was certainly not true in the case of the transfer of Jesus to Herod. In the first place, when Pilate declared, "I find no fault in him at all," a verdict of acquittal was p.r.o.nounced, and the case was ended. The proceedings had taken form of _res adjudicata_, and former jeopardy could have been pleaded in bar of further prosecution. It might be differently contended if Pilate had discovered that Jesus was from Galilee before the proceedings before him were closed. But it is clear from St. Luke, who alone records the occurrence of the sending of the prisoner to Herod, that the case was closed and the verdict of acquittal had been rendered before Pilate discovered the ident.i.ty of the accused.[117] It was then too late to subject a prisoner to a second trial for the same offense.

Rosadi denies emphatically that Herod had jurisdiction of the offense charged against Jesus. In this connection, he says: "His prosecutors insisted tenaciously upon His answering to a charge of _continuous_ sedition, as lawyers call it. This offence had been begun in Galilee and ended in Jerusalem--that is to say, in Judaea. Now it was a rule of Roman law, which the procurator of Rome could neither fail to recognize nor afford to neglect, that the competence of a court territorially const.i.tuted was determined either by the place in which the arrest was made, or by the place in which the offence was committed. Jesus had been arrested at the gates of Jerusalem; His alleged offence had been committed for the most part, and as far as all the final acts were concerned, in the city itself and in other localities of Judaea. In continuous offences competence was determined by the place in which the last acts going to const.i.tute the offence had been committed. Thus no justification whatever existed for determining the court with regard to the prisoner's origin. But this investigation upon a point of Roman law is to all intents superfluous, because either Pilate, when he thought of Herod, intended to strip himself of his inalienable judicial power, and in this case he ought to have respected the jurisdiction and competence of the Grand Sanhedrin and not to have busied himself with a conflict as to cognizance which should only have been discussed and resolved by the Jewish judicial authorities; or else he had no intention of abdicating his power, and in this case he ought never to have raised the question of competence between himself, Governor of Judaea, and Herod, Regent of Galilee, but between himself and the Roman Vice-Governor of Galilee, his colleague, if there had been such an one. It is only between judges of the same judicial hierarchy that a dispute as to territorial competence can arise. Between magistrates of different States there can only exist a contrast of power and jurisdiction. The act of Pilate cannot then be interpreted as a scruple of a const.i.tutional character. It is but a miserable escape for his irresolution, a mere endeavour to temporize."

The second and final appearance of Jesus before Pilate bears little resemblance to a regular trial. The characteristic elements of an ordinary Roman criminal proceeding are almost wholly wanting. The pusillanimous cowardice of the procurator and the blind fury of the mob are the chief component parts. A sort of wild phantasmagoria sweeps through the mult.i.tude and circles round the tribunal of the governor.

Pilate struggles with his conscience, and seeks safety in subterfuge. He begins by declaring to the a.s.sembled priests and elders that neither he nor Herod has found any fault in the man; and then, as a means of compromise and conciliation, makes the monstrous proposal that he will first scourge and then release the prisoner. This infamous proposal is rejected by the mob. The cowardly procurator then adopts another mean expedient as a way of escape. He offers to deliver Jesus to them as a Pa.s.sover gift. Him they refuse and Barabbas, the robber, is demanded.

Pilate's terror is intensified by superst.i.tious dread, when the mob begins to cry: "He made himself the Son of G.o.d!" From out the anguish of his soul, the voice of Justice sends to his quivering lips the thrice-repeated question: "Why, what evil hath he done?" The mob continues to cry: "Crucify him! Crucify him!"

And as a final a.s.sault upon his conscience and his courage, the hypocritical priests warn him that he must not release a pretender to kings.h.i.+p, for such a man is an enemy to Caesar. The doom of the Nazarene is sealed by this last maneuver of the rabble. Then, as a propitiation to the great G.o.d of truth and justice, and as balm to his hurt and wounded conscience, he washes his hands in front of them and exclaims: "I am innocent of the blood of this just person: see ye to it."

The crucifixion followed Pilate's final determination; and thus ended the most famous trial in the history of the world. It began with the arrest of Jesus in Gethsemane at midnight, and ended with His crucifixion on Golgotha on the afternoon of the same day. As we have seen, it was a double trial, conducted within the jurisdictions of the two most famous systems of jurisprudence known to mankind. In both trials, substantially the right issue was raised. Before the Sanhedrin, the prisoner was charged with blasphemy and convicted. Regarding Jesus as a mere man, a plain Jewish citizen, this judgment was "substantially right in point of law", but was unjust and outrageous because forms of criminal procedure which every Jewish prisoner was ent.i.tled to have observed, were completely ignored.

The proceedings before Pilate, we have reason to believe, were conducted, in a general way, with due regard to forms of law. But the result was judicial murder, because the judge, after having acquitted Jesus, delivered Him to be crucified. "I find in him no fault at all"

was the verdict of Pilate. But this just and righteous sentence was destroyed and obliterated by the following: "And they were instant with loud voices, requiring that he might be crucified. And the voices of them and of the chief priests prevailed. And Pilate gave sentence that it should be as they required."[118]

A horrible travesty on justice, this! "_Absolvo_" and "_Ibis ad crucem_," in the same breath, were the final utterances of a Roman judge administering Roman law in the most memorable judicial transaction known to men.

The treatment of this great theme would be incomplete and unsatisfactory unless reference were made to the peculiar views of some who believe that political rather than legal considerations should govern in determining the justice or the injustice of the proceedings against Jesus before Pilate. A certain cla.s.s of critics insist on regarding the Roman governor in the light of an administrator rather than a judge, and contend that the justice of his conduct and the righteousness of his motives should be tested by principles of public policy rather than by strict legal rules. It is insisted by such persons that various considerations support this contention. It is pointed out that Pilate exercised the unlimited jurisdiction of the military _imperium_, and was not, therefore, strictly bound by legal rules; that Jesus was not a Roman citizen, and, for this reason, was not ent.i.tled to the strict observance of forms of law; and that the stubborn, rebellious and turbulent temper of the Jewish people required the strong hand of a military governor, enforcing political obedience by drastic measures, rather than the action of a judge punctiliously applying rules of law.

These peculiar views subject the conduct of Pilate to the pressure of public necessity rather than to the test of private right, and insist that sympathy rather than censure should hold the scales in which his deeds are weighed.

This view of the case was presented in the last generation by Sir James Fitz-James Stephen in a book of extraordinary strength and brilliancy ent.i.tled "Liberty, Equality, Fraternity." It was written in answer to John Stuart Mill, and is, without doubt, the most powerful a.s.sault in the English language on what men have been pleased to call in modern times "liberty of conscience." In his letters and essays, Mr. Mill, according to the interpretation of Mr. Stephen, "condemns absolutely all interference with the expression of opinion." When tried by this standard, the Athenian dicasts, who condemned Socrates; Marcus Aurelius, who persecuted the Christians; Pontius Pilate, who crucified Jesus; and Philip II, who sanctioned the tortures of the Spanish Inquisition, were simply violators of rights of personal opinion and of freedom of conscience. If you deny the right of liberty of conscience, Mr. Mill contends, you must not censure Marcus Aurelius and other persecutors of Christianity. On the contrary, you must approve such persecution; and you must go further, and find "a principle which would justify Pontius Pilate." This challenge was boldly accepted by Mr. Stephen, who says:

"Was Pilate right in crucifying Christ? I reply, Pilate's paramount duty was to preserve the peace in Palestine, to form the best judgment he could as to the means required for that purpose, and to act upon it when it was formed. Therefore, if and in so far as he believed in good faith and on reasonable grounds that what he did was necessary for the preservation of the peace of Palestine, he was right. It was his duty to run the risk of being mistaken, notwithstanding Mr. Mill's principle as to liberty. He was in the position of a judge whose duty it is to try persons duly brought before him for trial at the risk of error."[119]

This contention is founded upon the inexorable doctrine that what is, is right; that revolution, though righteous, must be nipped in the bud and destroyed; and that rights of private conscience must not be tolerated if they tend to disturb the peace of the community at large. The inevitable logic of the theory of Mr. Stephen is that the established order of things in Palestine under Roman rule was right, and that it was the duty of the Roman governor to regard all attempts at innovation or revolution in religion or government as a breach of the peace which was to be promptly suppressed by vigorous measures. There is undoubtedly a certain amount of truth in this contention, in so far as it implies that under a just and orderly plan of government, the rights of the commonwealth to peace and security are greater than the claims of the individual to liberty of conscience which conflict with and tend to destroy those rights. It is a truth, at once sovereign and fundamental, in both law and government, that the rights of the collective body are greater than those of any individual member; and that when the rights of the whole and those of a part of the body politic conflict, the rights of the part must yield and, if necessity requires it, be destroyed. Upon no other basis can the doctrine of majorities in politics and the right of Eminent Domain in law, rest. But the application of the principles involved in this theory must always be made with proper limitations, and with a due regard to the rights of minorities and individuals; else government becomes an engine of despotism instead of an expression of political freedom. A claim of privilege which every member of the community has a right to make, must be respected by the collective body; otherwise, a common right has been violated and destroyed. The complete recognition of this principle is imperative and fundamental, and is the corner stone of political freedom in free inst.i.tutions among men.

But the trouble with the contention of Mr. Stephen is that it proceeds upon a wrong hypothesis. He intimates that Pilate might have "believed in good faith that what he did was necessary for the preservation of the peace of Palestine." This is a purely gratuitous and unhistorical suggestion. The Gospel records nowhere justify such an a.s.sumption. The very opposite is taught by these sacred writings. It is true that Caiaphas contended that it was expedient that one man should die rather than that the whole nation should perish. But this was a Jewish, not a Roman opinion. The Evangelical narratives are unanimous in declaring that Pilate believed Jesus to be innocent and that "for envy" He had been accused by His countrymen.

It is cheerfully conceded that occasions may present themselves, in the tumult and frenzy of revolution, when the responsible authorities of government may put to death a person whose intentions are innocent, but whose acts are incentives to riot and bloodshed. This may be done upon the principle of self-preservation, which is the first law of government as well as of nature. But no such necessity arose in the case of Jesus; and no such motives are ascribed by the Evangelists to Pilate. They very clearly inform us that the action of the Roman governor in delivering the prisoner to be crucified was prompted by private and not public considerations. He had no fears that Jesus would precipitate a revolution dangerous to the Roman state. He simply wished to quiet the mob and retain his position as procurator of Judea. The facts of history, then, do not support the contention of Mr. Stephen.

Continuing, in another place, the same eminent writer says: "The point to which I wish to direct attention is that Pilate's duty was to maintain peace and order in Judea and to maintain the Roman power. It is surely impossible to contend seriously that it was his duty, or that it could be the duty of any one in his position, to recognize in the person brought to his judgment seat, I do not say G.o.d Incarnate, but the teacher and preacher of a higher form of morals and a more enduring form of social order than that of which he himself was the representative. To a man in Pilate's position the morals and the social order which he represents are for all practical purposes final and absolute standards.

If, in order to evade the obvious inference from this, it is said that Pilate ought to have respected the principle of religious liberty as propounded by Mr. Mill, the answer is that if he had done so he would have run the risk of setting the whole province in a blaze. It is only in very modern times, and under the influence of modern sophisms, that belief and action have come to be so much separated in these parts of the world that the distinction between the temporal and spiritual department of affairs even appears to be tenable; but this is a point for future discussion.

"If this should appear harsh, I would appeal again to Indian experience.

Suppose that some great religious reformer--say, for instance, some one claiming to be the Guru of the Sikhs, or the Imam in whose advent many Mahommedans devoutly believe--were to make his appearance in the Punjab or the North-West Provinces. Suppose that there was good reason to believe--and nothing is more probable--that whatever might be the preacher's own personal intentions, his preaching was calculated to disturb the public peace and produce mutiny and rebellion: and suppose further (though the supposition is one which it is hardly possible to make even in imagination), that a British officer, instead of doing whatever might be necessary, or executing whatever orders he might receive, for the maintenance of British authority, were to consider whether he ought not to become a disciple of the Guru or Imam. What course would be taken towards him? He would be instantly dismissed with ignominy from the service which he would disgrace, and if he acted up to his convictions, and preferred his religion to his Queen and country, he would be hanged as a rebel and a traitor."[120]

These theories and ill.u.s.trations are not only plausible but entirely reasonable when viewed in the light of the facts which they a.s.sume to be true. But here again, we must insist that they do not harmonize with the actual facts of the case to which they are intended to apply. In the extract above quoted, three suppositions are suggested. The first one is immaterial. Let us a.n.a.lyze the other two in the light of the Gospel histories. The second supposition is this: "Suppose that there was good reason to believe--and nothing is more probable--that whatever might be the preacher's own personal intentions, his preaching was calculated to disturb the public peace and produce mutiny and rebellion." What pa.s.sage of Scripture, it may be asked, justifies this parallel with the case of Jesus before Pilate? There is, in fact, absolutely none. The nearest approach to one is Matthew xxvii. 24: "When Pilate saw that he could prevail nothing, but that rather a tumult was made, he took water, and washed his hands before the mult.i.tude, saying, I am innocent of the blood of this just person: see ye to it." The "tumult" here referred to means nothing more than the manifestation of agitated feelings on the part of the mob, who were enraged at the prospect of an acquittal by the governor. It does not remotely refer to the danger of a popular rebellion which might endanger the security and safety of Rome. To admit this supposition would be to elevate the motives of Pilate in consenting to the crucifixion of Jesus to the level of solicitude for the welfare of his country. This would not be justified by the record, which clearly reveals that Pilate was moved by personal selfishness rather than by a sense of official duty.

The third and last supposition above mentioned is this: "And suppose, further (though the supposition is one which it is hardly possible to make even in imagination), that a British officer, instead of doing whatever might be necessary, or executing whatever orders he might receive, for the maintenance of British authority, were to consider whether he ought not to become a disciple of the Guru or Imam." Here again, we may ask, what pa.s.sage of Scripture supports this parallel of a Mohammedan Guru before a British officer with Jesus Christ before Pontius Pilate? Where is it anywhere stated, or by reasonable inference implied, that Pilate considered whether he ought not to become a disciple of Jesus? The celebrated English author has simply argued his case from a radically defective record of fact.

On the other hand, let us draw what we conceive to be a true parallel.

Let us take an ill.u.s.tration nearer home. Suppose that the Governor General of the Philippine Islands was clothed with authority of life and death as a judge in criminal matters pertaining to the affairs of those islands. Suppose that a Mohammedan preacher should appear somewhere in the archipelago where Mohammedans are numerous, and begin to proclaim a new religious faith which was opposed not only to the ordinary tenets of Islamism, but also to the Christian religion which is the dominant faith of the rulers of the Philippines. Suppose that the coreligionists of this Mohammedan prophet should seize him, bring him before the Governor General, and lodge against him a threefold charge: That he was stirring up sedition in the islands; that he had advised the Filipinos not to pay taxes due to the United States government; and that he had said and done things that were treasonable against the United States. Suppose that the Governor General, after personal examination, became satisfied that the Mohamammedan preacher was an innocent enthusiast, that the charges against him were false, and were due to the envy and hatred of his fellow-Mohammedans; that to quiet the pa.s.sions, and satisfy the demands of the mob, he proposed to scourge him first and then release him; that, in the face of the vehement accusations of the rabble, he hesitated and vacillated for several hours; and that finally, when the Mohammedans threatened to send a complaint to President Roosevelt which might endanger his position, he ordered his innocent prisoner to death.

Suppose this should happen beneath the American flag, what would be the judgment of the American people as to the merits of the proceedings?

Would the Governor General retain his office by such a course of conduct?

But let us view it in another light. Let us a.s.sume that the Governor General believed that the Mohammedan preacher was innocent and that his "personal intentions" were not remotely hostile or treasonable, but felt that his preaching might stir up rebellion dangerous to the power of the American government in the Philippines; and that it was his duty as the guardian of American honor and security, to put the native preacher to death; and this not to punish past criminal conduct, but to prevent future trouble by a timely execution. Suppose that the Governor General should do this while sitting as a judge, would it not be judicial murder? Suppose that he should do it while acting as an administrator, would it be less an a.s.sa.s.sination? Would it not stamp with indelible shame the administration that should sanction or tolerate it? Would the press of America not denounce the act as murder, declare that despotism reigned in our Eastern possessions, and demand the removal and punishment of the man who had disgraced his office and brought odium upon the administrative justice of his country?

In closing the Roman trial of Jesus, let us repeat what we have already said: that the conduct of Pilate, when the prisoner was first brought before him, seems to have been marked by judicial regularity and solemnity; that the Roman procurator seems to have deported himself in a manner worthy of his office; that, in the beginning, he appears to have resolved to observe due forms of law in the proceedings, to the end that justice might be attained; and that, after a comparatively regular trial, he p.r.o.nounced an absolute verdict of acquittal. Thus far the course of Pilate is manly and courageous. But with the return of the prisoner from Herod, unmanliness and cowardice begin.

This last act of the great drama presents a pitiable spectacle of Roman degeneracy. A Roman governor of courtly origin, clothed with _imperium_, with a Praetorian Cohort at his command, and the military authority and resources of an empire at his back, cringes and crouches before a Jerusalem mob. The early Christian writers characterized Pilate with a single term ([Greek: anandria]), "unmanliness." They were right. This word is a summary, accurate and complete, of the character of the man.

There is inherent in the highest and n.o.blest of the human species a quality of courage which knows no fear; that prefers death and annihilation to dishonor and disgrace; that believes, with Caesar, that it is better to die at once than to live always in fear of death; and, with Mahomet, that Paradise will be found in the shadow of the crossing of swords. This quality of courage is peculiar to no race of men and to no form of civilization. It has existed everywhere and at all times. It causes the spirit of man to tread the earth like a lion and to mount the air like an eagle. The ancient barbarians of Gaul believed that lightning was a menace from the skies; and amidst the very fury of the storm, from their great bows they sent arrows heavenward as a defiance to the G.o.ds. This quality of courage, which is natural to man, Pilate lacked. And when we think of his cowardly, cringing, crouching, vacillating conduct before a few fanatical priests in Jerusalem, another scene at another time comes up before us. The Tenth Legion rises in mutiny and defies Julius Caesar. The mighty Roman summons his rebellious soldiers to the Field of Mars, reads to them the Roman riot act, and threatens to dismiss them not only from his favor but from Roman military service. The veterans of a hundred Gallic battlefields are subdued and conquered by the tone and glance of a single man; and with tearful eyes, beg forgiveness, and ask to be permitted to follow once again him and his eagles to the feast of victory and of death. Imagine, if you can, Caesar in the place of Pilate. it is not difficult to conceive the fare of a vulgar rabble who persisted in annoying such a Roman by demanding the blood of an innocent man.