The trial of Jesus from a lawyer's standpoint

JESUS BOUND (MUNKACSY)

THE TRIAL OF JESUS

FROM A LAWYER'S STANDPOINT

BY

WALTER M. CHANDLER

OF THE NEW YORK BAR

VOLUME I
THE HEBREW TRIAL

THE EMPIRE PUBLISHING CO.

60 Wall Street, New York City

1908

Copyright, 1908, by
WALTER M. CHANDLER

All rights reserved

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I

TO

MY MOTHER

WITH SENTIMENTS OF LOVE AND VENERATION
WHICH NO WORDS CAN EXPRESS

LIST OF ILLUSTRATIONS

FACING
PAGE

Jesus Bound (Munkacsy) Frontispiece

St. Matthew (Rembrandt) 2

St. Mark and St. Paul (Diirer) 28

St. John and St. Peter (Diirer) 52

Moses and the Law (Michael Angelo) 72

The Last Supper (da Vinci) 174

Jesus in Gethsemane (Hoffman) 240

The Betraying Kiss (SchefFer) 282

The Arrest of Jesus (Hoffman) 284

CONTENTS OF VOLUME ONE

PACE

Preface to Volume One xiii

The Gospel Narratives xxx

PART I

THE RECORD OF FACT

Authenticity of the New Testament Narratives, Judicially

Considered 3

Credibility of the Gospel Writers, Legally Tested . . 9

PART II

HEBREW CRIMINAL LAW

CHAPTER

I. The Mosaic Code and the Talmud 73

II. Hebrew Crimes and Punishments gi

III. Hebrew Courts and Judges 102

IV. Hebrew Witnesses and Evidence 127

V. Mode of Trial and Execution in Hebrew Capital Cases 153

PART III

THE BRIEF

Whether or not the Great Sanhedrin existed at the time

of Christ 175

Concerning the Jurisdiction of the Great Sanhedrin, with
reference to Roman authority, to try Capital Offenses

at the date of the Crucifixion 181

be

x CONTENTS OF VOLUME ONE

PAGE

Concerning the Jurisdiction of the Great Sanhedrin, under
Hebrew Law, to try the Particular Offense with which
Jesus was charged 183

Whether or not there was a Regular Legal Trial of Jesus

before the Great Sanhedrin 183

Whether or not the rules of criminal procedure prescribed
in the Mishna were in existence and actively in force
in Judea at the time of the Trial of Jesus . . . 186

The nature of the Charge brought against Jesus at the trial
before the Great Sanhedrin; and His guilt or innocence
with reference thereto 187

© Point I: Concerning the legality of the Arrest of Jesus

in Gethsemane 219

Point II • Concerning the legality of the Private Examination
of Jesus by Annas (or Caiaphas) before the beginning of
the regular trial 238

a Point III: Concerning the legality of the Indictment against

Jesus 248

Point IV: Concerning the legality of trying Jesus at Night 255

Point V: Concerning the legality of trying Jesus before

the Morning Sacrifice had been offered .... 260

Point VI: Concerning the legality of trying Jesus on the
Eve of a Jewish Sabbath and at the Beginning of the
celebration of the passover feast 263

Point VII: Concerning the legality of concluding the

Trial of Jesus Within One Day . .... 267

Point VIII: Concerning the legality of convicting Tesus

upon His Uncorroborated Confession 271

Point IX: Concerning the legality of a Unanimous Ver-
dict against Jesus 270

CONTENTS OF VOLUME ONE xi

PAGE

Point X: Concerning certain Irregularities of Form in

TRYING AND CONDEMNING JESUS 287

Point XI: Concerning the legal Disqualifications of members

of the Great Sanhedrin, to try Jesus 295

Point XII: Concerning the legality of the refusal of the
0 Great Sanhedrin to consider the Merits of the De-
fense of Jesus 3°9

PREFACE TO VOLUME ONE

ANY remarkable trials have
characterized the judicial his-
tory of mankind.

The trial of Socrates before
the dicastery of Athens, charged
with corrupting Athenian youth,
with blaspheming the Olympic
gods, and with seeking to de-
stroy the constitution of the At-
tic Republic, is still a sublime and thrilling chapter
in the history of a wonderful people, among the
ruins and wrecks of whose genius the modern world
still wanders to contemplate, admire, and study
the pride of every master and the perfection of every
model.

The trial and execution of Charles the First of Eng-
land sealed with royal blood a new covenant of British
freedom, and erected upon the highway of national
progress an enduring landmark to civil liberty. The
; entire civilized world stood aghast at the solemn and
awful spectacle of the deliberate beheading of a king.
And yet, to-day, the sober, serious judgment of man-
kind stamps the act with approval, and deems it a
legitimate and righteous step in the heroic march of a
brave and splendid people toward a complete realiza-

XU1

xiv PREFACE TO VOLUME ONE

tion of the inalienable rights of man. The philosopher
of history declares these condemnatory and executory
proceedings against a Stuart king worthy of all the
epoch-making movements that have glorified the cen-
turies of English constitutional growth, and have
given to mankind the imperishable parchments of
Magna Charta, the Bill of Rights, the Petition of
Rights, and Habeas Corpus.

The trial of Warren Hastings in the hall of William
Rufus has been immortalized by Lord Macaulay.
This trial is a virtual reproduction in English history
of the ancient Roman trial of Verres. England is sub-
stituted for Rome; Sicily becomes India; Hastings
takes the place of Verres; and Burke is the orator in-
stead of Cicero. The indictments are identical: Mal-
administration in the government of a province. In
the impeachment of Hastings, England served notice
upon her colonial governors and made proclamation
to the world that English conquest was not intended to
despoil and enslave, but was designed to carry to the
inhabitants of distant lands her language, her litera-
ture, and her laws. This message to humanity was
framed but not inspired by England. It was prompted
by the success of the American Revolution, in which
Washington and his Continentals had established the
immortal principle, that the consent of the governed is
the true source of all just powers of government.

The trial of Aaron Burr, omitting Arnold's treason,
is the blackest chapter in the annals of our republic.
Burr was the most extraordinary man of the first half
century of American national history. His powerful

PREFACE TO VOLUME ONE xv

and fascinating personality conquered men and en-
slaved women. He was the finest scholar of the Revo-
lution excepting Thomas Jefferson. He was the great-
est orator of the Revolution excepting Patrick Henry.
His farewell address to the United States Senate
caused his inveterate enemies to weep. His arraign-
ment at the bar of public justice on the charge of high
treason — that he had sought to destroy the Country of
Washington, the Republic of Jefferson, which is to-
day the Union of Lincoln — was the sad and melan-
choly close of a long and lofty life.

The trial of Alfred Dreyfus is still fresh in the
minds and memories of men. Troubled political seas
still surge and roll in France because of the hatred,
prejudice, and passion that envelope the mysterious
bordereau. The French Republic is still rent by two
contending factions: Dreyfus and anti-Dreyfus. His
friends still say that Dreyfus was a Prometheus who
was chained to an ocean-girt rock while the vulture of
exile preyed upon his heart. His enemies still assert
that he was a Judas who betrayed not God or Christ,
but France and the Fatherland. His banishment to
the Island of the Devil; his wife's deathless devotion;
the implacable hatred of his enemies; the undying loy-
alty of friends; and his own sufferings and woes are the
warp and woof of the most splendid and pathetic
epoch of a century.

Other trials — of Mary Stuart, the beautiful and
brilliant Scottish queen; of Robert Emmet, the grand
and gifted Irish patriot martyr — thrilled the world in
their day.

xvi PREFACE TO VOLUME ONE

But these trials, one and all, were tame and com-
monplace, compared with the trial and crucifixion of
the Galilean peasant, Jesus of Nazareth. These were
earthly trials, on earthly issues, before earthly courts.
The trial of the Nazarene was before the high tribu-
nals of both Heaven and earth; before the Great San-
hedrin, whose judges were the master-spirits of a
divinely commissioned race; before the court of the
Roman Empire that controlled the legal and political
rights of men throughout the known world, from Scot-
land to Judea and from Dacia to Abyssinia.

The trial of Jesus was twofold: Hebrew and Ro-
man; or Ecclesiastical and Civil. The Hebrew trial
took place before the Great Sanhedrin, consisting of
seventy-one members. The Roman trial was held
before Pontius Pilate, Roman governor of Judea, and
afterwards before Herod, Tetrarch of Galilee. These
trials all made one, were links in a chain, and took
place within a space of time variously estimated from
ten to twenty hours.

The general order of events may be thus briefly
described:

(i) About eleven o'clock on the evening of April
6th, A.D. 30, Jesus and eleven of the Apostles left
the scene of the Last Supper, which had been cele-
brated (probably in the home of Mark) on the out-
skirts of Jerusalem, to go to the Garden of Geth-
semane.

(2) Jesus was arrested about midnight in Gethsem-
ane by a band of Temple officers and Roman soldiers,
guided by Judas.

PREFACE TO VOLUME ONE xvii

(3) He was first taken to Annas, and was after-
wards sent by Annas to Caiaphas. A private prelimi-
nary examination of Jesus was then had before one of
these church dignitaries. St. John describes this ex-
amination, but does not tell us clearly whether it was
Annas or Caiaphas who conducted it.

(4) After His preliminary examination, Jesus was
arraigned about two o'clock in the morning before the
Sanhedrin, which had convened in the palace of Caia-
phas, and was formally tried and condemned to death
on the charge of blasphemy against Jehovah.

(5) After a temporary adjournment of the first ses-
sion, the Sanhedrin reassembled at the break of day to
retry Jesus, and to determine how He should be
brought before Pilate.

(6) In the early morning of April 7th, Jesus was
led before Pontius Pilate, who was then stopping in
the palace of Herod on the hill of Zion, his customary
residence when he came up from Caesarea to Jerusa-
lem to attend the Jewish national festivals. A brief
trial of Jesus by Pilate, on the charge of high treason
against Caesar, was then had in front of and within
the palace of Herod. The result was an acquittal
of the prisoner by the Roman procurator, who ex-
pressed his verdict in these words: " I find in him no
fault at all."

(7) Instead of releasing Jesus after having found
Him not guilty, Pilate, being intimidated by the rab-
ble, sent the prisoner away to Herod, Tetrarch of
Galilee, who was then in attendance upon the Passover
Feast, and was at that moment residing in the ancient

xviii PREFACE TO VOLUME ONE

palace of the Asmoneans in the immediate neighbor-
hood of the residence of Pilate. A brief, informal
hearing was had before Herod, who, having mocked
and brutalized the prisoner, sent Him back to the
Roman governor.

(8) After the return of Jesus from the Court of
Herod, Pilate assembled the priests and elders, an-
nounoed to them that Herod had found no fault with
the prisoner in their midst, reminded them that he
himself had acquitted Him, and offered to scourge and
then release Him. This compromise and subterfuge
were scornfully rejected by the Jews who had de-
manded the crucifixion of Jesus. Pilate, after much
vacillation, finally yielded to the demands of the mob
and ordered the prisoner to be crucified.

From this brief outline of the proceedings against
Jesus, the reader will readily perceive that there were
two distinct trials: a Hebrew and a Roman. He will
notice further that each trial was marked by three dis-
tinct features or appearances. The Hebrew trial was
characterized by:

(i) The appearance before Annas.

(2) The trial at the night session of the Sanhedrin.

(3) The examination at the morning sitting of the
same court.

The Roman trial was marked by:

(1) The appearance of Jesus before Pilate.

(2) His arraignment before Herod.

(3) His reappearance before Pilate.

The first volume of this work has been devoted to
the Hebrew trial of Jesus, and a distinctively Hebrew

PREFACE TO VOLUME ONE xix

impress has been given to all its pages. The second
volume has been devoted to the Roman trial, and a dis-
tinctively Roman impress has been given it. Each
exhibits a distinct view of the subject. Taken to-
gether, they comprehend the most important and
famous judicial transaction in history.

It is not the purpose of the author of these volumes
to usurp the functions or the privileges of the ecclesi-
astic. To priests and preachers have been left the dis-
cussion and solution of theological problems: the
divinity of Jesus, the immortality of the soul and kin-
dred religious dogmas. " The Trial of Jesus from a
Lawyer's Standpoint " is the expanded title of this
work. A strict adherence to a secular discussion of
the theme proclaimed has been studiously observed in
the preparation of these pages. The legal rights of
the man Jesus at the bar of human justice under Jew-
ish and Roman laws have marked the limitations of
the argument. Any digression from this plan has been
temporary and necessary.

A thorough understanding of any case, judicially
considered, involves a complete analysis of the car-
dinal legal elements of the case: the element called
Fact and the element called Law. Whether in ancient
or modern times, in a Jewish or Gentile court, of civil
or criminal jurisdiction, these elements have always
entered into the legal conception of a case. Whether
the advocate is preparing a pleading at his desk, is
summing up before the jury, or addressing himself to
the court, these elements are working forever in his
brain. He is constantly asking himself these ques-

xx PREFACE TO VOLUME ONE

tions: What are the facts of this case? What is the
law applicable to the facts? Do the facts and law
meet and harmonize judicially? Do they blend in
legal unison according to the latest decision of the
court of last resort? If so, a case is made; other-
wise, not.

Now many sermons might be differently preached;
many books might be differently written. But an in-
telligent discussion of the trial and crucifixion of Jesus
from a lawyer's point of view must be had upon the
basis of an analytical review of the agreement or non-
agreement of law and fact in the case sought to be
made against the Christ.

The first question that naturally suggests itself to the
inquiring mind, in investigating this theme, is this:
t/ Upon what facts was the complaint against Jesus
based? A second question then logically follows:
What were the rules and regulations of Hebrew and
Roman law directly applicable to those facts in the
trials of Jesus before the Sanhedrin and before Pilate?
It is respectfully submitted that no clear and compre-
hensive treatment of the subject can be had without
proper answers to these questions.

Having learned the facts of any case, and having
determined what rules of law are applicable to them
in regard to the controversy in hand, a third step
in the proceedings, in all matters of review on appeal,
is this: To analyze the record from the viewpoint of
the juristic agreement or nonagreement of law and
fact; and to determine by a process of judicial dissec-
tion and reformation the presence or absence of essen-

PREFACE TO VOLUME ONE xxi

tial legal elements in the proceedings, with a view
to affirmance in case of absence, or reversal of the ver-
dict in the event of the discovery of the presence of
error. *"

In obedience to this natural intellectual tendency
and to the usual mode of legal procedure in review-
ing and revising matters on appeal, the contents of
Volume I have been divided into three parts, corre-
sponding, in a general way, to the successive steps
heretofore mentioned.

In Part I, the Record of Fact in the trial of Jesus
has been authenticated; not, indeed, according to the
strict provisions of modern statutes which regulate the
authentication of legal documents, but in the popular
sense of the word " authentication." Nevertheless, the
authenticity of the Gospel narratives, which form the
record of fact in the trial of Jesus, and the credibility
of the Evangelists who wrote and published these nar-
ratives, have been subjected to the rigorous tests of
rules of evidence laid down by Greenleaf and by
Starkie. Such an authentication has been deemed nec-
essary in a treatise of this kind.

Two main methods may be employed in investigat-
ing and proving the alleged occurrences of Sacred
History: (i) The method which is based upon the evi-
dence of spiritual consciousness and experience, de-
rived from religious conversion and from communion
with God; (2) the method that rests upon the appli-
cation of historic facts and legal rules to the testimony
of those who have asserted the existence of such occur-
rences.

xxii PREFACE TO VOLUME ONE

It has been contended by many that the first of these
methods is the supreme test, and the only proper one,
in solving religious problems and in reaching full and
final assurance of the existence of spiritual truths. It
is confidently asserted by such persons that the true
Christian who has accepted Jesus as his personal Re-
deemer and has thereby found peace with God, needs
no assurance from Matthew that the Christ was the
Heaven-begotten and Virgin-born. Such a Christian,
it is said, has positive proof from within that Jesus was
divine. It is further contended that all forms of re-
ligious truth are susceptible of the same kind of proof.
It is argued that from despairing hope, born of the
longing and the tears of a mother who, grief-stricken
and broken-hearted, kneels in prayer beside the coffin
of her firstborn, springs stronger evidence of a future
life and of an everlasting reunion with loved ones, than
comes from all the assurances of immortality handed
down by saints and sages. The advocates of this
theory contend that the fact of the Resurrection of
Jesus should be proved mainly by the method of
spiritual consciousness and experience, and only in-
cidentally by the historical testimony of the sacred
writers. They boldly maintain that the Resurrec-
tion was a spiritual fact born of a spiritual truth; and
that within the soul of each true believer is the image
of the risen Jesus, reflected from Heaven in as per-
fect form as that seen by Paul while journeying to
Damascus.

It would be decidedly ungenerous and unjust to
deny the force of the contention that spiritual con-

PREFACE TO VOLUME ONE xxiii

sciousness and religious experience are convincing
forms of proof. To do so would be to offer gratuitous
insult to the intelligence and sincerity of millions of
consecrated men and women who have repeatedly pro-
claimed and are still proclaiming that the Spirit of
God and Christ within them attests the reality of
religion. .

But on the other hand the doctrine of religious con-
sciousness, as a mode of proof, certainly has its limita-
tions. Spiritual proofs are obviously the very best
means of establishing purely spiritual truths. But not
many truths of religion are purely spiritual. The most
of them are encased within historic facts which may
themselves be separately considered as historic truths.
In a sense, all spiritual truth is born of historic truth;
that is, historic truths, in the order of our acquisition
of a knowledge of them, antedate and create spiritual
truths. The religious consciousness of the Resurrec-
tion of Jesus would never have been born in our hearts
if we had never read the historical records of the
physical Resurrection. Nor could we have ever had
a religious experience of the divinity of Jesus if we
had never read the historical accounts of His miracles,
of His Virgin birth, His fulfillment of prophecy, and
His Resurrection from the dead, unless Jesus had per-
sonally communicated to us evidences of His divinity.
These separate and historic facts, of which spiritual
truths are born, cannot be proved by religious con-
sciousness and experience.

The distinctions herein suggested are very aptly and
beautifully expressed by Professor Inge in his Bamp-

xxiv PREFACE TO VOLUME ONE

ton Lectures on Christian Mysticism, in which he
says: "The inner light can only testify to spiritual
truths. It always speaks in the present tense; it cannot
guarantee any historical event, past or future. It can-
not guarantee either the Gospel history or a future
judgment. It can tell us that Christ is risen, and He is
alive for evermore, but not that He rose again the
third day."

From the foregoing, then, it is clear that in dealing
with the historical facts and circumstances of the trial
and crucifixion of Jesus, we cannot remotely employ
the method of proof which is based upon religious
consciousness and experience, since these events are
matters of the past and not of the present. We have
been compelled, therefore, to resort to the legal and
historical method of proof; since we could not assume
the correctness of the record, as such an assumption
would have been lacking in legal requirement and
judicial fitness.

It has also been thought not to be within the scope
of this treatise, or consistent with the purpose of the
author of these volumes, to enter into a discussion of
the question of inspiration in the matter of the origin
of the New Testament Gospels, as the record of fact
in the trial of Jesus. As secular historians, rather than
as inspired writers, must the Evangelists be regarded
in this connection; since the title of this work suggests
and demands a strictly legal treatment of the theme
proclaimed. The author would respectfully suggest,
however, that the day is past for complete reliance
upon the theory of inspiration and a total rejection of

PREFACE TO VOLUME ONE xxv

all analysis and investigation. That the Scriptures are
sacred and inspired, and neither need nor permit ques-
tions involving doubt and speculation as to origin and
authenticity will no longer meet the challenge or dis-
sipate the fears of the intellectual leaders of the human
race. The Christianity of the future must be a re-
ligion of reason as well as of faith, else it cannot and
will not endure the shocks of time, or survive the on-
ward march of the soul. If the teachings of the Naza-
rene are a faithful portrayal and a truthful expression
of all the verities of Heaven and earth, then Chris-
tianity has nothing to fear from the discoveries of
Science, from Roman catacombs, Arabian hieroglyph-
ics, the sands of Egypt, or the ruins of Nineveh and
Babylon. Science is the High Priestess of Nature and
Nature's oracles, and no single revelation of Science
can disprove or contradict the simplest truth of
Nature's God.

If, on the other hand, Christianity be fundamentally
and essentially false, ignorance and bigotry will not
preserve and perpetuate it; all the prayers of the faith-
ful, all the martyrdom of the centuries, will not suffice
to save it from death and annihilation.

But the Christian need have no fear of the results
of scientific investigation or historic revelation. As-
syriology, archaeology, and paleontology, interpreted
and applied by the finest scholarship and the most
superb intellects of earth, have spent all their stupen-
dous and concentrated forces in the direction of the
discovery of natural and historic facts that would con-
firm or destroy the Christian theory of things. And

xxvi PREFACE TO VOLUME ONE

yet not one natural or historic fact has been discovered
that seriously disturbs the testimony of the Evangelists
or impairs the evidences of Christianity. A few unlet-
tered fishermen, casting nets for a livelihood in the
waters of Gennesaret, framed a message to humanity
based upon the life and martyrdom of a Galilean peas-
ant, their spiritual Lord and Master, and proclaimed
it to the world; and all the succeeding centuries of
scientific research and skeptical criticism have not
shaken mankind's confidence in its truthfulness and its
potency. If eighteen hundred years of scientific in-
vestigation have resulted only in proof and vindi-
cation of the historic asseverations of the Sacred
Scriptures, and further investigation gives promise
of still further proof and vindication, tending to re-
move all doubts and destroy all fears, nothing but
rank stupidity and crass ignorance will place ob-
stacles in the way of ultimate analysis and complete
revelation.

In Part II of this volume, following the plan here-
tofore suggested, the element of Law has been con-
sidered. Hebrew criminal jurisprudence, based upon
the Mosaic Code and upon the Talmud, has been out-
lined and discussed. A more exhaustive treatment has
been given than the subject would seem to justify, but
the writer is convinced that the Criminal Code of
the Jews must be of surpassing interest to the gen-
eral reader, regardless of whether certain peculiar
rules therein contained have reference to the trial
of Jesus or not. The bulk of this Code has been
inserted in this work because it is felt that a compre-

PREFACE TO VOLUME ONE xxvii

hensive view of any system enables the student of a
particular trial under that system to grasp more fully
and to appreciate more keenly the merits of the pro-
ceedings.

In Part III the legal aspects of the trial of Jesus
have been reviewed. The elements of Law and Fact
have been combined in the form of a " Brief," in
which " Points " have been made and errors have been
discussed.

During the past decade, the author of this work has
delivered occasionally, in the United States and in the
Dominion of Canada, a lecture upon the subject, " The
Trial of Jesus from a Lawyer's Standpoint." Numer-
ous requests have been made, from time to time, for
the lecture in printed form. To supply this demand
is the purpose of the publication of these volumes.
The voluminous treatment given has been in response
to the demands of those who have asked for a topical
treatment of the subject. Many auditors in his lecture
audiences have asked for special treatment, from a
lawyer's standpoint, of the New Testament Gospels.
Many have requested an exhaustive handling of He-
brew criminal law. Others have asked for the inser-
tion in this work of the Apocryphal Acts of Pilate.
And still others have expressed a desire to have Graeco-
Roman Paganism dealt with in its relationship to the
trial of Jesus. In obedience to these various demands,
certain chapters have been incorporated in the general
work that may not seem to the average reader to have
any direct bearing upon the subject treated. It is felt,
however, that in every case at least a partial relevancy

xxviii PREFACE TO VOLUME ONE

exists, and that in a large majority of cases the rele-
vancy is perfect.

The writer wishes, at this time and place, to ac-
knowledge his indebtedness and to express his thanks,
for valuable assistance rendered, to all those authors
mentioned under the title " Bibliography " at the end
of Volume II.

Walter M. Chandler.

New York City, July i, 1908.

THE GOSPEL NARRATIVES

XXX

THE GOSPEL NARRATIVES

MATTHEW
xxvi. 47-68; xxvii. 1-26.

AND while he yet spake, lo,
Judas, one of the twelve,
came, and with him a great multitude
with swords and staves, from the
chief priests and elders of the people.
. . . Then came they, and laid
hands on Jesus, and took him. . . .
And they that had laid hold on Jesus
led him away to Caiaphas the high
priest, where the scribes and the
elders were assembled. . . . Now
the chief priests, and elders, and all
the council, sought false witness
against Jesus, to put him to death;
But found none: yea, though many
false witnesses came, yet found they
none. At the last came two false
witnesses, And said, This fellow said,
I am able to destroy the temple of
God, and to build it in three days.
And the high priest arose, and said
unto him, Answerest thou nothing?
what is it which these witness against
thee? But Jesus held his peace.
And the high priest answered and
said unto him, I adjure thee by the
living God, that thou tell us whether
thou be the Christ, the Son of God.
Jesus saith unto him, Thou hast said :
nevertheless I say unto you, Here-
after shall ye see the Son of man
sitting on the right hand of power,
and coming in the clouds of heaven.
Then the high priest rent his clothes,
saying, He hath spoken blasphemy;
what further need have we of wit-
nesses ? behold, now ye have heard
his blasphemy. What think ye?
They answered and said, He is guilty
of death. Then did they spit in his
face, and buffeted him; and others

MARK

xiv. 43-65; xv- l-*5'

\ ND immediately, while he yet
■**• spake, cometh Judas, one of
the twelve, and with him a great
multitude with swords and staves,
from the chief priests and the scribes
and the elders. And he that betrayed
him had given them a token, saying,
Whomsoever I shall kiss, that same
is he; take him, and lead him away
safely. And as soon as he was come,
he goeth straightway to him, and
saith, Master, Master; and kissed
him. And they laid their hands on
him, and took him. And one of them
that stood by drew a sword, and
smote a servant of the high priest,
and cut off his ear. And Jesus
answered and said unto them, Are ye
come out, as against a thief, with
swords and with staves to take me?
I was daily with you in the temple
teaching, and ye took me not: but
the scriptures must be fulfilled. And
they all forsook him, and fled. And
there followed him a certain young
man, having a linen cloth cast about
his naked body; and the young men
laid hold on him: And he left the
linen cloth, and fled from them
naked. And they led Jesus away to
the high priest: and with him were
assembled all the chief priests and
the elders and the scribes. . . .
And the chief priests and all the
council sought for witness against
Jesus to put him to death; and found
none. For many bare false witness
against him, but their witness agreed
not together. And there arose cer-
tain, and bare false witness against
him, saying, We heard him say, I will

THE GOSPEL NARRATIVES xxxi

LUKE JOHN

xxii. 47-71; xxiii. 1-24. xviii. 3-38; xlx. 1-16.

AND while he yet spake, behold TUDAS then, having received a

a multitude, and he that was ^ band of men and officers from

called Judas, one of the twelve, went the chief priests and Pharisees,

before them, and drew near unto cometh thither with lanterns and

Jesus to kiss him. But Jesus said torches and weapons. . . . Then

unto him, Judas, betrayest thou the the band and the captain and officers

Son of man with a kiss ? When they of the Jews took Jesus, and bound

which were about him saw what him, And led him away to Annas

would follow, they said unto him, first; for he was father in law to

Lord, shall we smite with the sword ? Caiaphas, which was the high priest

And one of them smote the servant that same year. . . . The high

of the high priest, and cut off his priest then asked Jesus of his dis-

right ear. And Jesus answered and ciples, and of his doctrine. Jesus

said, Suffer ye thus far. And he answered him, I spake openly to the

touched his ear, and healed him. world; I ever taught in the synagogue,

Then Jesus said unto the chief and in the temple, whither the Jews

priests, and captains of the temple, always resort; and in secret have I

and the elders, which were come to said nothing. Why askest thou me?

him, Be ye come out, as against a ask them which heard me, what I

thief, with swords and staves ? When have said unto them: behold, they

I was daily with you in the temple, know what I said. And when he had

ye stretched forth no hands against thus spoken, one of the officers

me: but this is your hour, and the which stood by struck Jesus with the

power of darkness. Then took they palm of his hand, saying, Answerest

him, and led him, and brought him thou the high priest so ? Jesus

into the high priest's house. And answered him, If I have spoken evil,

Peter followed afar off. . . . And as bear witness of the evil : but if well,

soon as it was day, the elders of the why smitest thou me ? Now Annas

people and the chief priests and the had sent him bound unto Caiaphas

scribes came together, and led him the high priest. . . . Then led they

into their council, saying, Art thou Jesus from Caiaphas unto the hall

the Christ? tell us. And he said of judgment: and it was early; and

unto them, If I tell you, ye will not they themselves went not into the

believe: And if I also ask you, ye will judgment hall, lest they should be

not answer me, nor let me go. Here- defiled; but that they might eat

after shall the Son of man sit on the the passover. Pilate then went out

right hand of the power of God. unto them, and said, What accu-

Then said they all, Art thou then the sation bring ye against this man ?

Son of God? And he said unto them, They answered and said unto him, If

Ye say that I am. And they said, he were not a malefactor, we would

What need we any further witness ? not have delivered him up unto thee.

xxxii THE GOSPEL NARRATIVES

MATTHEW MARK

xxvi. 47-68; xxvii. 1-26. xiv. 43-65; xv. 1-15.

smote him with the palms of their destroy this temple that is made with
hands, Saying, Prophesy unto us, hands, and within three days I will
thou Christ, Who is he that smote build another made without hands,
thee ? But neither so did their witness agree
When the morning was come, all together. And the high priest stood
the chief priests and elders of the up in the midst, and asked Jesus,
people took counsel against Jesus to saying, Answerest thou nothing ?
put him to death: And when they what is it which these witness against
had bound him, they led him away, thee ? But he held his peace, and
and delivered him to Pontius Pilate answered nothing. Again the high
the governor. . . . And Jesus stood priest asked him, and said unto him,
before the governor: and the governor Art thou the Christ, the Son of the
asked him, saying, Art thou the Blessed? And Jesus said, I am: and
King of the Jews ? And Jesus said ye shall see the Son of man sitting on
unto him, Thou sayest. And when the right hand of power, and coming
he was accused of the chief priests in the clouds of heaven. Then the
and elders, he answered nothing. high priest rent his clothes, and
Then said Pilate unto him, Hearest saith, What need we any further
thou not how many things they witnesses ? Ye have heard the bias-
witness against thee? And he phemy: what think ye? And they
answered him to never a word; all condemned him to be guilty of
insomuch that the governor mar- death. And some began to spit
veiled greatly. Now at that feast the on him, and to cover his face, and to
governor was wont to release unto buffet him, and to say unto him,
the people a prisoner, whom they Prophesy: and the servants did
would. And they had then a notable strike him with the palms of their
prisoner, called Barabbas. There- hands.

fore when they were gathered to- And straightway in the morning

gether, Pilate said unto them, Whom the chief priests held a consultation

will ye that I release unto you? with the elders and scribes and the

Barabbas, or Jesus which is called whole council, and bound Jesus, and

Christ ? For he knew that for envy carried him away, and delivered him

they had delivered him. When he to Pilate. And Pilate asked him,

was set down on the judgment seat, Art thou the King of the Jews ? And

his wife sent unto him, saying, Have he answering said unto him, Thou

thou nothing to do with that just sayest it. And the chief priests ac-

man : for I have suffered many things cused him of many things : but he

this day in a dream because of him. answered nothing. And Pilate asked

But the chief priests and elders per- him again, saying, Answerest thou

suaded the multitude that they nothing? behold how many things

should ask Barabbas, and destroy they witness against thee. But Jesus

THE GOSPEL NARRATIVES

XXXlll

LUKE

xxii. 47-71; xxiii. 1-24.

for we ourselves have heard of his
own mouth.

And the whole multitude of them
arose, and led him unto Pilate. And
they began to accuse him, saying, We
found this fellow perverting the
nation, and forbidding to give tribute
to Caesar, saying that he himself is
Christ a King. And Pilate asked
him, saying, Art thou the King of the
Jews? And he answered him and
said, Thou sayest it. Then said
Pilate to the chief priests and to the
people, I find no fault in this man.
And they were the more fierce, say-
ing, He stirreth up the people, teach-
ing throughout all Jewry, beginning
from Galilee to this place. When
Pilate heard of Galilee, he asked
whether the man were a Galilaean.
And as soon as he knew that he be-
longed unto Herod's jurisdiction, he
sent him to Herod, who himself also
was at Jerusalem at that time. And
when Herod saw Jesus, he was ex-
ceeding glad: for he was desirous to
see him of a long season, because he
had heard many things of him; and
he hoped to have seen some miracle
done by him. Then he questioned
with him in many words; but he
answered him nothing. And the
chief priests and scribes stood and
vehemently accused him. And
Herod with his men of war set him
at nought, and mocked him, and
arrayed him in a gorgeous robe, and
sent him again to Pilate. And the
same day Pilate and Herod were
made friends together: for before
they were at enmity between them-

JOHN

xviii. 3-38; xix. 1-16.

Then said Pilate unto them, Take ye
him, and judge him according to your
law. The Jews therefore said unto
him, It is not lawful for us to put any
man to death. . . . Then Pilate
entered into the judgment hall again,
and called Jesus, and said unto him,
Art thou the King of the Jews ?
Jesus answered him, Sayest thou this
thing of thyself, or did others tell it
thee of me ? Pilate answered, Am I
a Jew? Thine own nation and the
chief priests have delivered thee unto
me: what hast thou done? Jesus
answered, 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. Pilate therefore said
unto him, Art thou a king then ?
Jesus answered, Thou sayest that I
am a king. To this end was I born,
and for this cause came I into the
world, that I should bear witness
unto the truth. Everyone that is of
the truth heareth my voice. Pilate
saith unto him, What is truth ? And
when he had said this, he went out
again unto the Jews, and saith unto
them, I find in him no fault at all.
Then Pilate therefore took Jesus,
and scourged him. And the soldiers
platted a crown of thorns, and
put it on his head, and they put
on him a purple robe, And said,
Hail, King of the Jews! and they
smote him with their hands. Pilate
therefore went forth again, and saith
unto them, Behold, I bring him forth
to you, that ye may know that I

xxxiv THE GOSPEL NARRATIVES

MATTHEW MARK

xxvi. 47-68; xxvii. 1-26. xiv. 43-65; xv. I— 15.

Jesus. The governor answered and yet answered nothing; so that Pilate
said unto them, Whether of the twain marvelled. Now at that feast he
will ye that I release unto you ? They released unto them one prisoner,
said, Barabbas. Pilate saith unto whomsoever they desired. And there
them, What shall I do then with was one named Barabbas, which lay
jesus which is called Christ? They bound with them that had made in-
all say unto him, Let him be cruci- surrection with him, who had com-
fied. And the governor said, Why, mitted murder in the insurrection,
what evil hath he done ? But they And the multitude crying aloud
cried out the more, saying, Let him began to desire him to do as he had
be crucified. When Pilate saw that ever done unto them. But Pilate
he could prevail nothing, but that answered them, saying, Will ye that
rather a tumult was made, he took I release unto you the King of the
water, and washed his hands before Jews ? For he knew that the chief
the multitude, saying, I am innocent priests had delivered him for envy.
of the blood of this just person: But the chief priests moved the
see ye to it. Then answered all the people, that he should rather release
people, and said, His blood be on us, Barabbas unto them. And Pilate
and on our children. Then released answered and said again unto them,
he Barabbas unto them: and when What will ye then that I shall do unto
he had scourged Jesus, he delivered him whom ye call the King of the
him to be crucified. Jews ? And they cried out again,

Crucify him. Then Pilate said unto
them, Why, what evil hath he done ?
And they cried out the more exceed-
ingly, Crucify him. And so Pilate,
willing to content the people, re-
leased Barabbas unto them, and de-
livered Jesus, when he had scourged
him, to be crucified.

THE GOSPEL NARRATIVES xxxv

LUKE JOHN

xxii. 47-71; xxiii. 1-24. xviii. 3-38; xix. 1-16.

selves. And Pilate, when he had find no fault in him. . . . The
called together the chief priests and Jews answered him, We have a law,
the rulers and the people, Said unto and by our law he ought to die,
them, Ye have brought this man unto because he made himself the Son of
me, as one that perverteth the people: God. When Pilate therefore heard
and, behold, I, having examined him that saying, he was the more afraid;
before you, have found no fault in And went again into the judgment
this man touching those things hall, and saith unto Jesus, Whence
whereof ye accuse him: No, nor yet art thou? But Jesus gave him no
Herod: for I sent you to him; and, answer. . . . And from thence-
lo, nothing worthy of death is done forth Pilate sought to release him:
unto him. I will therefore chastise but the Jews cried out, saying, If
him, and release him. . . . And thou let this man go, thou art not
they cried out all at once, saying, Caesar's friend: whosoever maketh
Away with this man, and release himself a king speaketh against
unto us Barabbas. . . . Pilate there- Caesar. When Pilate therefore heard
fore, willing to release Jesus, spake that saying, he brought Jesus forth,
again to them. But they cried, and sat down in the judgment
saying, Crucify him, crucify him. seat in a place that is called the
And he said unto them the third Pavement, but in the Hebrew, Gab-
time, Why, what evil hath he done ? batha. And it was the preparation
I have found no cause of death in of the passover, and about the sixth
him: I will therefore chastise him, hour: and he saith unto the Jews,
and let him go. And they were Behold your King! But they cried
instant with loud voices, requiring out, Away with him, away with him,
that he might be crucified. And the crucify him. Pilate saith unto them,
voices of them and of the chief Shall I crucify your King? The chief
priests prevailed. And Pilate gave priests answered, We have no king
sentence that it should be as they but Caesar. Then delivered he him
required. therefore unto them to be crucified.

And they took Jesus, and led him

away.

PART I

THE RECORD OF FACT

ST. MATTHEW ( REMBRANDT)

CHAPTER I

THE RECORD OF FACT

HE Gospels of the New Testa-
ment form the record of fact in
the trial of Jesus. There is not
a line of authentic history in the
literature of the world, sacred or
profane, dealing originally and
authoritatively with the facts
and circumstances of the trial
and crucifixion of the Christ,
excepting these Gospels. A line from Philo — a du-
bious passage from Josephus — a mere mention by
Tacitus — a few scattering fragments from the Talmud
— all else is darkness, save the light that streams down
through the centuries from Calvary and the Cross
through the books of the Evangelists.

In dealing with the record of fact contained in the
Gospels, in the trial of Jesus two questions naturally
suggest themselves: (i) Are the Gospel narratives,
such as we have them to-day, identical with those that
were given to the world by the Evangelists in Apos-
tolic times? That is, have these biographies of the
Christ by the Evangelical writers been handed down
to us through all the ages substantially uncorrupted
and unimpaired?

4 THE TRIAL OF JESUS

(2) Are the Gospel writers — Matthew, Mark, Luke,
and John — credible witnesses of the facts and circum-
stances recorded by them in the Gospel histories? That
is, did they tell the truth when they wrote and pub-
lished these narratives to the world? Satisfactory
affirmative answers to these questions will establish
and authenticate a perfect record of fact. The pages
of Part I of this volume will be devoted to giving
affirmative and satisfactory answers to these questions.
And, in accomplishing this purpose, academic reason-
ing and metaphysical speculation will be rejected.
Well-established rules of evidence, as employed in
modern courts of law, will be rigorously applied. So-
called " Higher Criticism " has no place in a treatise
of this kind, since the critical niceties and dialectic
quibbles of men like Strauss, Renan, and Baur would
not be seriously considered in a modern judicial pro-
ceeding. Reasonable probability, and not mathemat-
ical certainty, is the legal test of adequacy in weighing
human testimony with a view to a judicial deter-
mination.

The reader may ask: Why should not a Christian
writer, in a Christian country, assume, without argu-
ment, that the testimony of Christian sacred writers is
true? The answer is that such conduct would convert
a purely legal treatise into a religious one, and substi-
tute faith for logic. The writer of these volumes, as a
Christian, believes that the Gospels relate the truth. As
a lawyer, he is compelled to respect the opinions of a
large proportion of mankind who differ with him, and
to employ judicial methods in treating a legal theme.

THE RECORD OF FACT 5

The two questions above mentioned involve two dis-
tinct principles or features in the Law of Evidence:
(1) Admissibility or relevancy of evidence; (2) Credi-
bility of witnesses who have rendered testimony. All
the pages of Part I will be devoted to a consideration
of these features in their relationship to the testimony
of the Evangelists.

The first question that naturally arises is this: Is
there a well-established rule of the modern Law of
Evidence under which the Gospels could be intro-
duced as evidence in a modern judicial proceeding?
Suppose that the question of the Resurrection of Jesus
— that is, the fact of the truthfulness or falsity of the
Resurrection — should become a material fact in issue
in a suit in a modern court of law; could the testi-
mony of the Evangelists relating to the Resurrection
be introduced in evidence? It would probably be ob-
jected that their testimony was hearsay; that they had
not been properly subjected to the cardinal tests of
truth: an oath, a cross-examination, and personal de-
meanor while testifying. These objections might pre-
vail if another rule of law could not be successfully
invoked. Such a rule exists, and with it we have now
to deal.

The author can conceive of no more satisfactory way
of establishing the principle of the admissibility of the
Gospels in evidence under modern law than by quot-
ing at length from the celebrated treatise on the " Tes-
timony of the Evangelists," by Mr. Simon Greenleaf,
the greatest of all writers on the Law of Evidence.
The opinion of Greenleaf on a subject of this kind

6 THE TRIAL OF JESUS

is somewhat in the nature of a decision of a court of
last resort, and his authority in matters of this import
is unquestioned in every land where English law is
practiced. The London Law Magazine, a few years
ago, paid him the following splendid tribute: " It is
no mean honor to America that her schools of juris-
prudence have produced two of the first writers and
best esteemed legal authorities of this century — the
great and good man, Judge Story, and his worthy and
eminent associate, Professor Greenleaf. Upon the ex-
isting Law of Evidence (by Greenleaf) more light has
shone from the New World than from all the lawyers
who adorn the courts of Europe."

Concerning the authenticity of the Sacred Scriptures
and their admissibility in evidence, Greenleaf has thus
written:

That the books of the Old Testament, as we now have
them, are genuine; that they existed in the time of our
Saviour, and were commonly received and referred to among
the Jews as the sacred books of their religion; and that the
text of the Four Evangelists has been handed down to us in
the state in which it was originally written, that is, without
having been materially corrupted or falsified, either by here-
tics or Christians, are facts which we are entitled to assume
as true, until the contrary is shown.

The genuineness of these writings really admits of as little
doubt, and is susceptible of as ready proof, as that of any
ancient writings whatever. The rule of municipal law on this
subject is familiar, and applies with equal force to all ancient
writings, whether documentary or otherwise ; and as it comes
first in order, in the prosecution of these inquiries, it may, for
the sake of mere convenience, be designated as our first rule.

Every document, apparently ancient, coming from the
proper repository or custody, and bearing on its face no evi-

THE RECORD OF FACT 7

dent marks of forgery, the law presumes to be genuine, and
devolves on the opposing party the burden of proving it to
be otherwise.

An ancient document, offered in evidence in our courts, is
said to come from the proper repository, when it is found in
the place where, and under the care of persons with whom,
such writings might naturally and reasonably be expected to
be found; for it is this custody which gives authenticity to
documents found within it. If they come from such a place,
and bear no evident marks of forgery, the law presumes that
they are genuine, and they are permitted to be read in evi-
dence, unless the opposing party is able successfully to im-
peach them. The burden of showing them to be false and
unworthy of credit is devolved on the party who makes that
objection. The presumption of law is the judgment of char-
ity. It presumes that every man is innocent until he is proved
guilty; that everything has been done fairly and legally until
it is proved to have been otherwise ; and that every document
found in its proper repository, and not bearing marks of
forgery, is genuine. Now this is precisely the case with the
Sacred Writings. They have been used in the church from
time immemorial, and are thus found in the place where alone
they ought to be looked for. They come to us, and challenge
our reception of them as genuine writings, precisely as
Domesday Book, the Ancient Statutes of Wales, or any other
of the ancient documents which have recently been published
under the British Record Commission are received. They
are found in familiar use in all the churches of Christendom,
as the sacred books to which all denominations of Christians
refer, as the standard of their faith. There is no pretense
that they were engraven on plates of gold and discovered in
a cave, nor that they were brought from heaven by angels;
but they are received as the plain narratives and writings of
the men whose names they respectively bear, made public at
the time they were written ; and though there are some slight
discrepancies among the copies subsequently made, there is
no pretense that the originals were anywhere corrupted. If
it be objected that the originals are lost, and that copies alone
are now produced, the principles of the municipal law here

8 THE TRIAL OF JESUS

also afford a satisfactory answer. For the multiplication of
copies was a public fact, in the faithfulness of which all
the Christian community had an interest; and it is a rule of
law that

In matters of public and general interest, all persons must
be presumed to be conversant, on the principle that in-
dividuals are presumed to be conversant with their own
affairs.

Therefore it is that, in such matters, the prevailing cur-
rent of assertion is resorted to as evidence, for it is to this
that every member of the community is supposed to be privy.
The persons, moreover, who multiplied these copies may be
regarded, in some manner, as the agents of the Christian pub-
lic, for whose use and benefit the copies were made; and on
the ground of the credit due to such agents, and of the public
nature of the facts themselves, the copies thus made are en-
titled to an extraordinary degree of confidence, and, as in the
case of official registers and other public books, it is not neces-
sary that they should be confirmed and sanctioned by the
ordinary tests of truth. If any ancient document concerning
our public rights were lost, copies which had been as univer-
sally received and acted upon as the Four Gospels have been,
would have been received in evidence in any of our courts of
justice, without the slightest hesitation. The entire text of
the Corpus Juris Civilis is received as authority in all the
courts of continental Europe, upon much weaker evidence of
its genuineness; for the integrity of the Sacred Text has been
preserved by the jealousy of opposing sects, beyond any
moral possibility of corruption; while that of the Roman
Civil Law has been preserved by tacit consent, without the
interest of any opposing school, to watch over and preserve
it from alteration.

These copies of the Holy Scriptures having thus been in
familiar use in the churches from the time when the text was
committed to writing; having been watched with vigilance
by so many sects, opposed to each other in doctrine, yet all
appealing to these Scriptures for the correctness of their faith;
and having in all ages, down to this day, been respected as
the authoritative source of all ecclesiastical power and gov-

THE RECORD OF FACT 9

ernment, and submitted to, and acted under in regard to so
many claims of right, on the one hand, and so many obliga-
tions of duty, on the other; it is quite erroneous to suppose
that the Christian is bound to offer any further proof of
their genuineness or authenticity. It is for the objector to
show them spurious; for on him, by the plainest rules of law,
lies the burden of proof. If it were the case of a claim to a
franchise, and a copy of an ancient deed or charter were pro-
duced in support of the title, under parallel circumstances on
which to presume its genuineness, no lawyer, it is believed,
would venture to deny either its admissibility in evidence or
the satisfactory character of the proof. In a recent case in
the House of Lords, precisely such a document, being an old
manuscript copy, purporting to have been extracted from an-
cient Journals of the House, which were lost, and to have
been made by an officer whose duty it was to prepare lists of
the peers, was held admissible in a claim of peerage.1

Having secured the Gospel writings to be admitted
in evidence under the rule laid down by Mr. Green-
leaf, we are now ready to consider more at length the
question of the credibility of the witnesses. The reader
should bear in mind that there is a very important
difference between the admission of testimony in evi-
dence and belief in its truthfulness by the court or
jury. Evidence is frequently deemed relevant and ad-
missible, and goes to the jury for what it is worth.
They may or may not believe it.

We are now ready to consider the credit that should
be accorded the testimony of Matthew, Mark, Luke,
and John concerning the trial and crucifixion of Jesus.
And at the outset it should be borne in mind that there
is a legal presumption that they told the truth. This

1 "Testimony of the Evangelists," pp. 7— 1 1.

io THE TRIAL OF JESUS

presumption operates in their favor from the very
moment that their testimony is admitted in evidence.
Here, again, the opinion of Greenleaf — with all the
weight and authority that such an opinion carries —
is directly in point. In the " Testimony of the Evan-
gelists " he says:

Proceeding further, to inquire whether the facts related by
the Four Evangelists are proved by competent and satis-
factory evidence, we are led, first, to consider on which side
lies the burden of establishing the credibility of the witnesses.
On this point the municipal law furnishes a rule which is of
constant application in all trials by jury, and is indeed the
dictate of that charity which thinketh no evil.

In the absence of circumstances which generate suspicion,
every witness is to be presumed credible, until the contrary is
shown, the burden of impeaching his credibility lying on the
objector.

This rule serves to show the injustice with which the
writers of the Gospels have ever been treated by infidels; an
injustice silently acquiesced in even by Christians; in requir-
ing the Christian affirmatively, and by positive evidence,
aliunde to establish the credibility of his witnesses above all
others, before their testimony is entitled to be considered,
and in permitting the testimony of a single profane writer,
alone and uncorroborated, to outweigh that of any single
Christian. This is not the course in courts of chancery, where
the testimony of a single witness is never permitted to out-
weigh the oath even of the defendant himself, interested as
he is in the case; but, on the contrary, if the plaintiff, after
having required the oath of his adversary, cannot overthrow
it by something more than the oath of one witness, however
credible, it must stand as evidence against him. But the
Christian writer seems, by the usual course of the argument,
to have been deprived of the common presumption of charity
in his favor; and reversing the ordinary rule of administering
justice in human tribunals, his testimony is unjustly presumed
to be false, until it is proved to be true. This treatment,

THE RECORD OF FACT n

moreover, has been applied to them all in a body; and with-
out due regard to the fact, that, being independent historians,
writing at different periods, they are entitled to the support
of each other; they have been treated, in the argument, al-
most as if the New Testament were the entire production,
at once, of a body of men, conspiring by a joint fabrication,
to impose a false religion upon the world. It is time that
this injustice should cease; that the testimony of the evangel-
ists should be admitted to be true, until it can be disproved
by those who would impugn it; that the silence of one sacred
writer on any point should no more detract from his own
veracity or that of other historians, than the like circum-
stance is permitted to do among profane writers; and that the
Four Evangelists should be admitted in corroboration of each
other, as readily as Josephus and Tacitus, or Polybius and
Livy.1

The reader will notice from the last extract that the
eminent writer quoted has sought to establish the credi-
bility of the Evangelists by a legal presumption in
favor of their veracity. But it should be borne in mind
that this presumption is a disputable one, and may be
overturned by opposing evidence; that objections may
be raised which will destroy the force of the presump-
tion and shift the burden again to him who asserts the
credibility of the witnesses. Now, let us suppose that
such objections have been made, and that sufficient
opposing evidence has been offered to accomplish this
result; what has the Christian then to say in support
of the credibility of the first historians of his faith?
What proofs has he to offer, independent of legal pre-
sumption, that the first biographers of the Master were
truthful men? Can he show that the application of

1 "Testimony of the Evangelists," pp. 25, 26.

12 THE TRIAL OF JESUS

legal tests to their credibility will save them in the
eyes of a critical and unbelieving world? The writer
believes that the Christian can do it, and will at once
assume the task.

In " Starkie on Evidence " we find elaborated a rule
of municipal law, at once concise and comprehensive,
which furnishes a complete test of the credibility of
witnesses. The various elements of this rule are con-
stantly operating in the mind of the successful cross-
examiner in the course of any extensive cross-exam-
ination.

The credit due to the testimony of witnesses depends upon,
firstly, their honesty; secondly, their ability; thirdly, their
number and the consistency of their testimony; fourthly, the
conformity of their testimony with experience ; and fifthly,
the coincidence of their testimony with collateral circum-
stances.1

Let us apply these successive tests, in the order above
enumerated, to the Evangelists.

(i) In the first place, let us consider the question
of their honesty.

The meaning of the word " honesty," used in this
connection, is peculiar. It relates rather to personal
sincerity than to personal integrity, and suggests the
idea of perjury rather than theft in criminal law.
Were the witnesses honest? That is, were they sin-
cere? Did they intend to tell the truth? That is, did
they themselves believe what they testified? If so, they
were honest witnesses, though their testimony was

1 I "Starkie on Evidence," pp. 480-545.

THE RECORD OF FACT 13

false, as a result of error in judgment or mistake of
fact.

In the sense, then, of sincerity is the test of honesty
to be applied to the Evangelists as witnesses of the
facts which they relate in the New Testament narra-
tives. And in making this test let us bear in mind
the nature and scope of this work; that it is not a
religious treatise, and that the question of inspiration
must not be allowed to confuse a purely legal and
historical discussion. As secular historians, and not
as inspired writers, must the Evangelists be consid-
ered. And in testing their credibility, the customary
standards employed in analyzing the motives and con-
duct of ordinary men in the usual experiences and
everyday affairs of life must be applied. To regard
them as strange or supernatural beings, subject to some
awful influence, and acting under the guidance and
protection of some god or hero, is decidedly foreign
to the present purpose.

It is felt that only two considerations are needed in
applying the test of sincerity to the Evangelists: (1)
Character; (2) Motive. And this for the reason that
honest character and righteous motive are the legiti-
mate parentage of perfect sincerity. Then, as a pri-
mary consideration, in discussing their sincerity, it may
be reasonably contended that the Gospel writers were
either good men or bad. A middle ground is not pos-
sible in their case, since the issues joined and the re-
sults attained were too terrible and stupendous to have
been produced by negative or indifferent forces. Were
they good men, then they believed what they taught and

i4 THE TRIAL OF JESUS

wrote, and were sincere, else they deliberately palmed
off an imposture on the world, which is inconsistent
with the hypothesis that they were good. Were they
bad men, then their lives and teachings furnish a con-
tradiction in principle and an inversion in the nature
and order of cause and effect which history has not
elsewhere recorded, either before or since; for, in their
discourses and their writings, they portrayed the divin-
est character and proclaimed the sublimest truths
known to the children of men. Every serious, thought-
ful mind at once inquires : Could bad men, conspirators
and hypocrites, have painted such a character — one
whose perfect purity and sinless beauty mock and
shame the mental and spiritual attributes of every false
prophet and of all heathen gods? The Olympian Zeus,
the sovereign creation of the superb Greek intellect,
was a fierce and vindictive deity — at times a faithless
spouse and a drunken debauchee. Mahomet, whom
two hundred millions of the human race worship as
the Inspired of Allah, was cruel and treacherous in
warfare, and base and sensual in private life. The
Great Spirit of the Indian granted immortality to dogs,
but denied it to women. Other hideous and monstrous
attributes deformed the images and blurred the char-
acters of pagan prophets and heathen divinities. But
Jesus of Nazareth was a pure and perfect being who
claimed to be sinless,1 and whose claims have been
admitted by all the world, believers and unbelievers
alike. The great truths taught by the gentle Nazarene
and transmitted by the Evangelists have brought balm

1 John x. 30: "I and my Father are one."

THE RECORD OF FACT 15

and healing to the nations, have proclaimed and estab-
lished universal brotherhood among men. Is it prob-
able that such a character was painted and such truths
proclaimed by dishonest and insincere men? Can Vice
be the mother of Virtue? " Do men gather grapes of
thorns or figs of thistles? " If Jesus was not really the
pure and holy being portrayed by the Gospels, then
the Evangelists have created a sublime character in a
superb fiction which surpasses anything to be found
in profane literature, and that evil-minded men could
neither have conceived nor executed. It is impossible
to derive from these reflections any other conclusion
than the absolute honesty and perfect sincerity of the
Evangelists. Besides, the mere perusal of their writ-
ings leaves a deep impression that they were pure and
pious men.

Again, a second and more serious consideration than
that of character, as affecting the sincerity of the Gos-
pel writers, is the question of motive. If the Evan-
gelists were insincere and did not believe their own
story, what motive prompted them to tell it, to preach
it, and to die for it? It is not believed that all men
are now or have ever been wholly selfish, but it is
contended that desire for compensation is the main in-
ducement to human action, mental and manual. Re-
ward is the great golden key that opens the door of
the Temple of Labor, and some form of recompense,
here or hereafter, explains all the bustling activity of
men. The Apostles themselves acted in obedience to
this law, for we find them quarreling among themselves
as to place and precedence in the New Kingdom.

1 6 THE TRIAL OF JESUS

They even demanded of the Master the exact nature
of their reward for labors performed and sacrifices en-
dured. To which reply was made that they should
sit on twelve thrones and judge the Twelve Tribes of
Israel.

Now let us apply this principle of expectation of
reward to the conduct of the Evangelists in preaching
and publishing the Gospel of the Nazarene, and let
us note particularly the result as it affects the question
of motive in human conduct. But first let us review,
for a moment, the political and religious situation at
the beginning of the Apostolic ministry. The Master
and Savior of the first Christians had just perished
as a malefactor on the cross. The religion which the
Apostles began to preach was founded in the doctrine
of repentance from sins, faith in the Crucified One,
and belief in His resurrection from the dead. Chris-
tianity, of which these elements were the essentials,
sought to destroy and supplant all other religions. No
compromises were proposed, no treaties were con-
cluded. The followers of the Nazarene raised a black
flag against paganism and every heathen god. No
quarter was asked and none was given. This strange
faith not only defied all other religions, but mocked
all earthly government not built upon it. The small,
but devoted, band, thus arrayed against themselves in
the very beginning all the opposing religious and secu-
lar forces of the earth. Judaism branded the new
creed as a disobedient and rebellious daughter. Pa-
ganism denounced it as a sham and a fraud, because
its doctrines were unknown to the Portico and the

THE RECORD OF FACT 17

Academy, and because its teachings were ridiculed by
both Stoics and Epicureans. The Roman State cast a
jealous and watchful eye upon the haughty pretensions
of a religious system that taught the impotence of
kings and sought to degrade earthly royalty.

In seeking, then, to establish the new faith and to
inculcate its doctrines, what could and did the Evan-
gelists expect but the bitter opposition which they met?
Did they seriously hope to see the proud and haughty
Sadducee, who despised the common people, or the
kingly aristocracy of Rome, that vaunted a superhu-
man excellence, complacently accept a religion that
taught the absolute equality and the universal brother-
hood of men? Did they not expect what they actually
received — bitter persecution, horrible torture, and
cruel death? Then we are led to ask: Was this the
recompense which they sought? Again, we pose the
question: What was the motive of these men in thus
acting, if they were dishonest and insincere? If they
knew that they were preaching a falsehood, what re-
ward did they expect? Was it of an earthly or a
heavenly kind? It is unreasonable to suppose that
they looked forward to earthly recompense when their
teachings arrayed against them every spiritual and
temporal potentate who had honors to grant or favors
to confer. Were they looking for heavenly reward?
It is ridiculous to imagine that they hoped to gain this
by preaching a falsehood in this world. Nothing could
be, therefore, more absurd than the proposition that
a number of men banded themselves together, repudi-
ated the ancient faith of their fathers, changed com-

1 8 THE TRIAL OF JESUS

pletely their mode of life, became austere in profess-
ing and practicing principles of virtue, spent their
entire lives proclaiming certain truths to mankind, and
then suffered the deaths of martyrs — all for the sake
of a religion which they knew to be false. If they
did not believe it to be false, they were sincere, and
one element of their credibility is established. It is
not a question at this time as to the absolute correct-
ness of their statements. These statements might have
been false, though their authors believed them to be
true — it is a question of sincerity at this point; and
the test of sincerity, as an element of credibility, rests
upon the simple basis that men are more disposed to
believe the statement of a witness if it is thought that
the witness himself believes it.

(2) In the second place, let us consider the ability
of the Evangelists as a test of their credibility as wit-
nesses.

The text writers on the Law of Evidence are gen-
erally agreed that the ability of a witness to speak
truthfully and accurately depends upon two consider-
ations: (1) His natural powers of observation, which
enable him to clearly perceive, and his strength of
memory, which enables him to fully retain the mat-
ters of fact to which his testimony relates; (2) his
opportunities for observing the things about which he
testifies.

To what extent the Gospel writers possessed the first
of these qualifications — that is, power of observation
and strength of memory — we are not informed by
either history or tradition. But we are certainly justi-

THE RECORD OF FACT 19

fied in assuming to be true what the law actually pre-
sumes: that they were at least men of sound mind and
average intelligence. This presumption, it may be re-
marked, continues to exist in favor of the witness until
an objector appears who proves the contrary by com-
petent and satisfactory evidence- It is not believed
that this proof has ever been or can ever be success-
fully established in the case of the Evangelists.

Aside from this legal presumption in their favor,
there are certain considerations which lead us to be-
lieve that they were well qualified to speak truthfully
and authoritatively about the matters relating to Gos-
pel history. In the first place, the writings themselves
indicate extraordinary mental vigor, as well as culti-
vated intelligence. The Gospels of Luke and John,
moreover, reveal that elegance of style and lofty im-
agery which are the invariable characteristics of intel-
lectual depth and culture. The " ignorant fishermen "
idea is certainly not applicable to the Gospel writers.
If they were ever very ignorant, at the time of the
composition of the Evangelical writings they had out-
grown the affliction. The fact that the Gospels were
written in Greek by Hebrews indicates that they were
not entirely illiterate.

Again, the occupations of two of them are very sug-
gestive. Matthew was a collector at the seat of cus-
toms,1 and Luke was a physician.2 Both these callings
required more than ordinary knowledge of men, as well
as accurate powers of observation, discrimination, and
analysis.

1 Matt. ix. 9. 2 Col. iv. 14: "Luke, the beloved physician."

20 THE TRIAL OF JESUS

But it has been frequently urged that, regardless of
their natural endowments, the Evangelists were biased
in favor of Jesus and His teachings, and bitterly preju-
diced against all opposing faiths. In other words, they
were at the same moment both enthusiasts and fanatics.
For this reason, it is contended, their testimony is un-
reliable. This is without doubt the weakest assault
ever made upon the trustworthiness of the Gospel
narratives. That the Gospel writers were neither
fanatics nor enthusiasts is evident from the very tone
and style of the Sacred Writings themselves. The
language of fanaticism and enthusiasm is the language
of rant and rage, of vituperation and of censure, on the
one hand, and of eulogy and adulation on the other.
The enthusiast knows no limit to the praise of those
whose cause he advocates. The fanatic places no
bounds to his denunciation of those whom he opposes.
Now, the most remarkable characteristic of the New
Testament histories is the spirit of quiet dignity and
simple candor which everywhere pervades them.
There is nowhere the slightest trace of bitterness or
resentment. There is enthusiasm everywhere in the
sense of religious fervor, but nowhere in the sense of
unbecoming heat or impatient caviling. The three
eventful years of the ministry of Jesus afforded many
opportunities for the display of temper and for the
use of invective in the Evangelical writings. The
murder of the Baptist by Herod; his cunning designs
against Jesus; the constant dogging of the footsteps of
the Master by the spies of the Sanhedrin; and His cru-
cifixion by the order of Pontius Pilate — what more

THE RECORD OF FACT 21

could be desired to make the heart rage and the blood
boil? But nowhere is there the slightest exhibition of
violent feeling or extravagant emotion. A gentle for-
bearance, a mild equanimity, a becoming dignity,
mark every thought and utterance. The character of
Pilate, as portrayed in the New Testament, is a su-
preme illustration of the fairness and magnanimity of
the Gospel writers. Philo and Josephus describe the
Roman procurator as stubborn, cruel, and vindictive.
The only kindly suggestion touching the character of
Pilate that has come down from the ancient world, is
that contained in the writings of men who, above all
others, would have been justified in describing him as
cowardly and craven. Instead of painting him as a
monster, they have linked conscience to his character
and stored mercy in his heart, by their accounts of his
repeated attempts to release Jesus. Fanatics and en-
thusiasts would not have done this.

Again, the absence of both bias and prejudice in the
minds and hearts of the Evangelists is shown by the
fact that they did not hesitate to record their own ludi-
crous foibles and blunders, and to proclaim them to
the world. A disposition to do this is one of the surest
indications of a truthful mind. It is in the nature of
" a declaration against interest," in the phraseology of
the law; and such declarations are believed because it
has been universally observed that " men are not likely
to invent anecdotes to their own discredit." " When
we find them in any author," says Professor Fisher in
his " Grounds of Theistic and Christian Belief," " a
strong presumption is raised in favor of his general

22 THE TRIAL OF JESUS

truthfulness." Many passages of New Testament
Scriptures place Jesus and the Apostles in a most un-
favorable light before the world. The denial of the
Master by Peter1 and His betrayal by Judas;2 the
flight of the Eleven from the Garden at the time of the
arrest; 3 the ridiculous attempt of Peter to walk upon
the sea and his failure because of lack of faith;4 the
frequent childish contentions among the disciples for
place and precedence in the affections of Jesus and in
the New Kingdom; 5 the embassy from John the Bap-
tist to Jesus asking if He, Jesus, was the Messiah, after
the latter had already visited the former, and had been
baptized by him;6 the belief of the family of Jesus
that He was mad; 7 and the fact that His neighbors at
Nazareth threatened to kill Him by hurling Him from
a cliff 8 — these various recitals have furnished a handle
to skeptical criticism in every age. They might as
well have been omitted from the Gospel histories; and
they would have been omitted by designing and un-
truthful men.

Again, touching the question of bias and prejudice,
it is worthy of observation that skeptics fail to apply
the same rules of criticism to sacred that they employ
in profane literature. It is contended by them that the
Evangelists are unworthy of belief because their writ-
ings record the words and deeds of their own Lord and
Master. It is asserted that this sacred and tender rela-
tionship warped and blinded their judgment, and dis-

1 Matt. xxvi. 70-72. 5 Mark x. 35-42; Matt. xx. 20-25.

2 Matt. xxvi. 46-50. 6 Matt. xi. 2, 3.

3 Matt. xxvi. 56. 7 Mark iii. 21.

4 Matt. xiv. 28-31. 8Luke iv. 28, 29.

THE RECORD OF FACT 23

qualified them to write truthfully the facts and cir-
cumstances connected with the life and ministry of the
founder of their faith. But these same critics do not
apply the same tests of credibility to secular writers
sustaining similar relationships. The Commentaries
of Caesar and the Anabasis of Xenophon record the
mighty deeds and brilliant achievements of their au-
thors; but this fact does not destroy their reliability as
historical records in the estimation of those who insist
that the Gospel writers shall be rejected on grounds of
bias and partiality. The Memorabilia of Xenophon,
" Recollections of Socrates," is the tribute of an affec-
tionate and admiring disciple; and yet, all the colleges
and universities of the world employ this work as a
text-book in teaching the life and style of conversation
of the great Athenian philosopher. It is never argued
that the intimate relationship existing between Xeno-
phon and Socrates should affect the credibility of the
author of the Memorabilia. The best biography in
the English language is Boswell's " Life of Johnson."
Boswell's admiration for Dr. Johnson was idolatrous.
At times, his servile flattery of the great Englishman
amounted to disgusting sycophancy. In spite of this,
his work is a monumental contribution to historical
literature. The " Encyclopedia Britannica" says that
" Boswell has produced the best biography the world
has yet seen " ; but why not reject this book because of
its author's spaniel-like devotion to the man whose life
he has written? If Matthew, Mark, Luke, and John
are to be repudiated on the ground of bias, why not
repudiate Caesar, Xenophon, and Boswell? It is re-

24 THE TRIAL OF JESUS

spectfully submitted that there is no real difference in
logic between the tests of credibility applicable to
sacred, and those required in the case of profane writ-
ers. A just and exact criticism will apply the same
rules to both.

As to the second qualification above mentioned,
under the second legal test of credibility laid down by
Starkie, that is, the opportunity of observing facts and
circumstances about which testimony is given, it may
safely be said that the majority of the Evangelists pos-
sessed it in the highest degree. The most convincing
testimony that can possibly be offered in a court of law
is that of an eyewitness who has seen or heard what he
testifies. Now, it is reasonably certain that all of the
Gospel writers were eyewitnesses of most of the events
recorded by them in the Gospel histories. Both Mat-
thew and John were numbered among the Twelve
who constantly attended the Master in all His wander-
ings, heard His discourses, witnessed the performance
of His miracles, and proclaimed His faith after He
was gone. It is very probable that Mark was another
eyewitness of the events in the life and minstry of the
Savior. It is now very generally agreed that the
author of the Second Gospel was the young man who
threw away his garment and fled at the time of the
arrest in the Garden.1 If Mark was actually present
at midnight in Gethsemane peering through the shad-
ows to see what would be done to the Nazarene by the
mob, it is more than probable that he was also a wit-
ness of many other events in the life and ministry of

1 Mark xiv. 51,52.

THE RECORD OF FACT 25

the great Teacher. But, whether this be true or not,
it is very well settled that the Second Gospel was dic-
tated to Mark by Peter, who was as familiar with all
the acts and words of Jesus as was Matthew or John.
The Christian writers of antiquity unanimously testify
that Mark wrote the Gospel ascribed to him, at the
dictation of Peter. If their testimony is true, Peter is
the real author of the Second Gospel. That the Gos-
pel of Mark was written by an eyewitness is the opin-
ion of Renan, the skeptic, who says: " In Mark, the
facts are related with a clearness for which we seek in
vain amongst the other Evangelists. He likes to re-
port certain words of Jesus in Syro-Chaldean. He is
full of minute observations, coming doubtless from an
eye-witness. There is nothing to prevent our agreeing
with Papias in regarding this eye-witness, who evi-
dently had followed Jesus, who had loved Him and
observed Him very closely, and who had preserved a
lively image of Him, as the Apostle Peter himself." 1
The same writer declares Matthew to have been an
eyewitness of the events described by him. He says:
" On the whole, I admit as authentic the four canoni-
cal Gospels. All, in my opinion, date from the first
century, and the authors are, generally speaking, those
to whom they are attributed; but their historic value is
diverse. Matthew evidently merits an unlimited con-
fidence as to the discourses; they are the Logia, the
identical notes taken from a clear and lively remem-
brance of the teachings of Jesus." x

That Luke was an eyewitness of many of the things

1 "Intro. Vie de Jesus."

i6 THE TRIAL OF JESUS

recorded by him, and that the others were related to
him by eyewitnesses, is perfectly clear from the intro-
ductory verses of his Gospel. In addressing his royal
patron, Theophilus, he assures him that those who
communicated the information contained in the Gos-
pel to him were eyewitnesses; and follows by saying
that he himself had had " perfect understanding of all
things from the very first." 1 The evident meaning of
this is that, desiring full information for Theophilus,
he had supplemented his own personal knowledge by
additional facts secured from eyewitnesses to those
things which, not being of the Twelve, he himself had
not seen.

St. John was peculiarly well qualified to record the
sayings and doings of the Christ. He was called " the
disciple whom Jesus loved." He was admitted into
the presence of the Savior, at all times, on terms of the
utmost intimacy and friendship. At the Last Supper,
his head reposed confidingly and lovingly upon the
bosom of the Master. Together with Peter and James,
he witnessed the resurrection of Jairus' daughter; was
present at the Transfiguration on the Mount, and at
the agony of the Savior in the Garden. From the
cross, Jesus placed upon him the tender and pathetic
burden of caring for His mother; and, running ahead
of Peter, he was the first among the Twelve to arrive
at the open sepulcher. By means of a favorable ac-
quaintanceship with the High Priest, he was enabled
to gain access to the palace and to be present at the
trial of Jesus, as well as to introduce Peter, his friend.

1 Luke i. 2, 3.

THE RECORD OF FACT a7

It is thus clearly evident that the Evangelists were
amply able, from any point of view, to truthfully and
accurately record the events narrated in the Gospel
histories. As eyewitnesses, being on the ground and
having the situation well in hand, they were certainly
better qualified to write truthful history of the events
then occurring than historians and critics who lived
centuries afterwards.

But it is frequently contended that, if the Evangel-
ists were eyewitnesses of the leading events which they
recorded, they committed them to writing so long after-
wards that they had forgotten them, or had confused
them with various traditions that had in the meantime
grown up. There may be some little truth in this con-
tention, but not enough to destroy the credibility of
the witnesses as to events such as the Crucifixion and
Resurrection of Jesus. These are not matters to be
easily forgotten or confused with other things. The
date of the composition and publication of the differ-
ent Gospels is not known. But Professor Holtzmann,
of Heidelberg (a man who cannot be said to be favor-
able to Christianity, since he was for several years the
leader of the freethinkers in the Grand Duchy of
Baden), after many years of careful study of the sub-
ject, declared that the Synoptic Gospels, the first three,
were committed to writing between the years 60 and
80 of our era.1 This was only from thirty to fifty
years after the death of Jesus. Could men of average
memory and intelligence who had been almost daily
preaching the life and deeds of Jesus during these

1 "Die synoptischen Evangelien," pp. 412-14.

*8 THE TRIAL OF JESUS

thirty or fifty years have forgotten them? The testi-
mony of Principal Drummond, of Oxford, is very per-
tinent at this point. He says: " If we suppose that the
Synoptic Gospels were written from forty to sixty
years after the time of Christ, still they were based on
earlier material, and even after forty years the mem-
ory of characteristic sayings may be perfectly clear.
... I have not a particularly good memory, but I can
recall many sayings that were uttered forty, or even
fifty, years ago, and in some cases can vividly recollect
the scene." 1

If the Evangelists were eyewitnesses, which the
records seem clearly to indicate, they possessed one of
the strongest tests of credibility.

(3) In the third place, as to their number and the
consistency of their testimony.

The credibility of a witness is greatly strengthened
if his testimony is corroborated by other witnesses who
testify to substantially the same thing. The greater
the number of supporting witnesses, fraud and collu-
sion being barred, the greater the credibility of the
witness corroborated. But corroboration implies the
presence in evidence of due and reasonable consistency
between the testimony of the witness testifying and
that of those corroborating. A radical discrepancy on
a material point not only fails to strengthen, but tends
to destroy the credibility of one or both the witnesses.

Now, the fierce fire of skeptical criticism during all
the ages has been centered upon the so-called discrep-
ancies of the Gospel narratives. It is asserted by many

1 Marcus Dods, "The Bible, Its Origin and Nature," p. 184.

ii i) IFlpnsul Ipmiliic

ST. MARK AND ST. PAIL (DURER)

THE RECORD OF FACT 29

critics that these inconsistencies are so numerous and so
palpable, that the Gospel records are worthless, even
as secular histories. The authors of these writings, ac-
cording to the skeptics, mutually destroy each other.

In considering this phase of the credibility of the
Gospel writers, it must again be remembered that the
question of inspiration has no place in this discussion;
and that Matthew, Mark, Luke, and John must be re-
garded simply as secular historians. The reader is
urged to consider the biographers of the Christ as he
would consider ordinary witnesses in a court of law;
to apply to them the same tests of credibility; to sift
and weigh their testimony in the same manner; and to
subject them to the same rules of cross-examination.
If this is done, it is felt that the result will be entirely
favorable to the veracity and integrity of the sacred
writers.

In considering the subject of discrepancies it should
be constantly kept in mind that contradictions in testi-
mony do not necessarily mean that there has been false-
hood or bad faith on the part of the witnesses. Every
lawyer of experience and every adult citizen of aver-
age intelligence knows that this is true. Men of un-
questioned veracity and incorruptible integrity are
frequently arrayed against each other in both civil and
criminal trials, and the record reveals irreconcilable
contradictions in their testimony. Not only do prose-
cutions for perjury not follow, but, in many instances,
the witnesses are not even suspected of bad faith or an
intention to falsify. Defects in sight, hearing, or mem-
ory; superior advantage in the matter of observation;

3o THE TRIAL OF JESUS

or a sudden change in the position of one or both the
parties, causing distraction of attention, at the time of
the occurrence of the events involved in litigation — all
or any of these conditions, as well as many others, may
create discrepancies and contradictions where there is
a total absence of any intention to misrepresent. A
thorough appreciation of this fact will greatly aid in
a clear understanding of this phase of the discussion.
Again, an investigation of the charge of discrepancy
against the Gospel writers shows that the critics and
skeptics have classified mere omissions as contradic-
tions. Nothing could be more absurd than to consider
an omission a contradiction, unless the requirements of
the case show that the facts and circumstances omitted
were essential to be stated, or that the omission was evi-
dently intended to mislead or deceive. Any other con-
tention would turn historical literature topsy-turvy
and load it down with contradictions. Dion Cassius,
Tacitus, and Suetonius have all written elaborately of
the reign of Tiberius. Many things are mentioned by
each that are not recorded by the other two. Are we
to reject all three as unreliable historians because of
this fact? Abbott, Hazlitt, Bourrienne, and Walter
Scott have written biographies of Napoleon Bona-
parte. No one of them has recited all the facts re-
corded by the others. Are these omissions to destroy
the merits of all these writers and cause them to be
suspected and rejected? Grafton's Chronicles rank
high in English historical literature. They comprise
the reign of King John; and yet make no mention of
the granting of Magna Charta. This is as if the life

THE RECORD OF FACT 31

of Jefferson had been written without mention of the
Declaration of Independence; or a biography of Lin-
coln without calling attention to the Emancipation
Proclamation. Notwithstanding this strange omission,
Englishmen still preserve Grafton's Chronicles as
valuable records among their archives. And the same
spirit of generous criticism is everywhere displayed
in matters of profane literature. The opponents of
Christianity are never embarrassed in excusing or ex-
plaining away omissions or contradictions, provided
the writer is a layman and his subject secular. But
let the theme be a sacred one, and the author an eccle-
siastic— preacher, priest, or prophet — and immediately
incredulity rises to high tide, engulfs the reason, and
destroys all dispassionate criticism. Could it be for-
gotten for a moment that Matthew, Mark, Luke, and
John were biographers of the Christ, a sacred person,
no difficulties would arise in the matter of inconsisten-
cies, no objections would be made to their credibility.
The slight discrepancies that undoubtedly exist would
pass unnoticed, or be forever buried under the weight
of an overwhelming conviction that they are, in the
main, accurate and truthful.

But the Evangelists were guided by inspiration, the
skeptics say; and discrepancies are inconsistent with
the theory of inspiration. God would not have in-
spired them to write contradictory stories. But the as-
sumption is false that they claimed to be guided by
inspiration; for, as Marcus Dods truthfully says,
" none of our Gospels pretends to be infallible or even
inspired. Only one of them tells us how its writer ob-

32 THE TRIAL OF JESUS

tained his information, and that was by careful inquiry
at the proper sources." 1

But whether the Gospel writers were inspired or not
is immaterial so far as the purpose of this chapter is
concerned. The rules of evidence testing their credi-
bility would be the same in either case.

A more pertinent observation upon the Gospel dis-
crepancies has not been made than that by Paley in
his " Evidences of Christianity," where he says:

I know not a more rash or more unphilosophical conduct
of the understanding than to reject the substance of a story
by reason of some diversity in the circumstances with which
it is related. The usual character of human testimony is sub-
stantial truth under circumstantial variety. This is what the
daily experience of courts of justice teaches. When accounts
of a transaction come from the mouths of different witnesses
it is seldom that it is not possible to pick out apparent or real
inconsistencies between them. These inconsistencies are stu-
diously displayed by an adverse pleader, but oftentimes with
little impression upon the minds of the judges. On the con-
trary, a close and minute agreement induces the suspicion of
confederacy and fraud. When written histories touch upon
the same scenes of action, the comparison almost always af-
fords ground for a like reflection. Numerous, and sometimes
important, variations present themselves; not seldom, also,
absolute and final contradictions; yet neither one nor the
other are deemed sufficient to shake the credibility of the main
fact. The embassy of the Jews to deprecate the execution
of Claudian's order to place his statue in their temple, Philo
places in the harvest, Josephus in seed-time; both contem-
porary writers. No reader is led by this inconsistency to
doubt whether such an embassy was sent, or whether such an
order was given. Our own history supplies examples of the
same kind. In the account of the Marquis of Argyll's death,

1 An opposite doctrine seems to be taught in Luke xii. II, 12; xxiv. 48, 49.

THE RECORD OF FACT

33

in the reign of Charles II, we have a very remarkable con-
tradiction. Lord Clarendon relates that he was condemned
to be hanged, which was performed the same day; on the
contrary, Burnet, Woodrow, Heath, Echard, concur in stat-
ing that he was condemned upon the Saturday and executed
upon a Monday. Was any reader of English history ever
skeptic enough to raise from hence a question, whether the
Marquis of Argyll was executed or not? Yet this ought to
be left in uncertainty, according to the principles upon which
the Christian history has sometimes been attacked.1

The reader should most carefully consider the use-
ful as well as the damaging effect of Gospel inconsist-
encies in the matter of the credibility of the Evangel-
ists. A certain class of persons have imagined the
Gospel writers to be common conspirators who met
together at the same time and place to devise ways and
means of publishing a false report to the world. This
is a silly supposition, since it is positively known that
the authors of the Evangelical narratives wrote and
published them at different times and places. More-
over, the style and contents of the books themselves
negative the idea of a concerted purpose to deceive.
And, besides, the very inconsistencies themselves show
that there was no " confederacy and fraud "; since in-
telligent conspirators would have fabricated exactly
the same story in substantially the same language.

Furthermore, a just and impartial criticism will
consider not only the discrepant but also the corrobo-
rative elements in the New Testament histories. It
should not be forgotten that the authors of the Gospels
were independent historians who wrote at different

1 "Evidences of Christianity," p. 319.

34 THE TRIAL OF JESUS

times and places. Then, in all matters of fact in which
there is a common agreement, they may be said to fully
corroborate each other. And it may be contended
without fear of successful contradiction that, when so
considered, there will be found numerous cases of
corroboration where there is one of discord or incon-
sistency.

The corroborative elements or features in the Evan-
gelical narratives may be classified under three head-
ings: (i) Instances in which certain historical events
related by one of the Gospel writers are also told by
one or more of the others. These are cases of ordinary
corroboration. (2) Instances in which the recital of
a certain fact by one of the Evangelists would be ob-
scure or meaningless unless explained or supplemented
by another. These may be regarded as examples of
internal confirmation. (3) Instances in which the fact
related by one Evangelist must be true from the nature
of the case, regardless of what the others have said.
This is the simple confirmation of logic or reason.

A few illustrations will serve to make clear this clas-
sification.

Under the first heading of " ordinary corrobora-
tion " may be mentioned the accounts of the miracle of
feeding the five thousand. All the Evangelists tell us
of this event, and each records the fact that the frag-
ments taken up were twelve baskets full}

Under the second heading of " internal confirma-
tion " the following instances may be cited:

Matt. xxvi. 67, 68 : " And others smote him with the

1 Matt. xiv. 12-20; Mark vi. 34-43; Luke ix. 12-17; John vi. 5-13.

THE RECORD OF FACT 35

palms of their hands, saying, Prophesy unto us, thou
Christ, Who is he that smote thee?"

A caviling criticism would demand: Why ask of
the Christ to prophesy to those in His presence? And
the obscurity would be damaging, were it not for an
additional sentence in Luke, who records the same cir-
cumstance. "And when they had blindfolded him,
they struck him on the face, and asked him, saying,
Prophesy, Who is it that smote thee? " x The fact that
Jesus was blindfolded, which is told by Luke, explains
the use of the word " prophesy " by Matthew, which
would otherwise be absurd.

Again, Matt. xiii. 2: "And great multitudes were
gathered together with him, so that he went into the
ship, and sat." Here, the definite article points to a
particular ship which Matthew fails to mention. But
Mark comes to his aid and clearly explains the state-
ment: "And he spake to his disciples, that a small
vessel should wait upon him because of the multitude,
lest they should throng him." These two passages
taken together identify the ship.

Again, John vi. 5 : " When Jesus lifted up his eyes,
and saw a great company come to him, he saith unto
Philip, Whence shall we buy bread that these may
eat? " This is one of the only two places in the Gospel
where Jesus addressed this Apostle. But why ask
Philip instead of one of the others? Two other pas-
sages, one from John and one from Luke, furnish an
explanation. In John i. 44 we read that " Philip was
of Bethsaida." In Luke ix. 10 we learn that the scene

1 Luke xxii. 64.

36 THE TRIAL OF JESUS

of the event, the miracle of feeding the five thousand,
was " a desert place belonging to the city called Beth-
saida." The reason, then, for addressing Philip, in-
stead of one of the other Apostles, is clear. Bethsaida
was the home of Philip; and he would naturally,
therefore, be more familiar with the location of the
bread shops than the others. In John vi., where the
question is asked, neither the place of the feeding nor
the apostle questioned is even remotely connected with
the city of Bethsaida; and in Luke the account of the
miracle says nothing of Philip or the question put to
him. But when the passages are connected the striking
coincidence appears,' and the explanation is complete.
Again, John xviii. 10: " Then Simon Peter, having
a sword, drew it and smote the high priest's servant,
and cut off his right ear. The servant's name was
Malchus." It has been objected that there is nowhere
an account of the arrest or punishment of Peter for
this assault and resistance to armed authority; and
that, therefore, there was no such occurrence. A pas-
sage from Luke explains the failure to arrest. " And
Jesus answered and said, Suffer ye thus far, and he
touched his ear and healed him." * The healing of the
ear explains why no arrest followed; for, if charges
had been made, there would have been no evidence of
the gravity of the offense. Indeed, witnesses against
Peter would have been completely confounded and
humiliated by the result of the miracle; and might
have been driven from court as malicious accusers.
Then, the failure to arrest is a silent corroboration of

1 Luke xxii. 51.

THE RECORD OF FACT 37

the statement that the event occurred and that the
miracle was performed.

Under the third heading, of the " confirmation of
logic or reason," a single instance will suffice.

John xx. 4: "And the other disciple did outrun
Peter and came first to the sepulchre." The " other
disciple " was St. John, who is generally conceded to
have been the youngest of the Apostles. And St. Peter,
we may judge from John xxi. 18, was already past the
meridian of life. What could be more natural than
that the younger man should outrun the older and ar-
rive first at the sepulcher? What better proof could be
expected of the fact of the existence of that sweetness
and modesty in youth which respects old age, and that
endeared John to Jesus above all others, than we have
here, where the younger man awaits the arrival of the
older before beginning to explore the deserted tomb?

Examples similar to these might be multiplied at
length, since the Gospel histories are filled with them;
but those above mentioned are deemed sufficient to il-
lustrate the theory of corroboration. The instances of
internal confirmation in the New Testament narratives
are especially convincing. They are arguments and
proofs in the nature of undesigned coincidences which,
from the very nature of the case, shut out all possibil-
ity of collusion or fraud. In most cases they are ex-
pressed in a single phrase and represent an isolated
thought corroborative of some other elsewhere ex-
pressed. Though small, detached, and fragmentary,
like particles of dynamite, they operate with resistless
force when collected and combined.

/

3 8 THE TRIAL OF JESUS

Once more attention is called to the fact that these
discrepancies negative completely the idea that the
Gospel writers were conspirators, bent upon the com-
mon purpose of deceiving mankind by publishing a
false history to the world. Nothing could be more ab-
surd than to suppose that men conspiring to perpetrate
a fraud, would neglect a fundamental principle under-
lying all successful conspiracy; that is, the creation and
maintenance of a due and reasonable consistency be-
tween the words and deeds of the conspirators in for-
mulating plans for carrying out the common purpose.
Then, if there was no previous concert, the fact that
four men, writing at different times and places, con-
curred in framing substantially the same history, is one
of the strongest proofs of the credibility of the writers
and the truthfulness of their narratives. And on this
point the testimony of a very great writer may be
quoted: that "in a number of concurrent testimonies,
where there has been no previous concert, there is a
probability distinct from that which may be termed
the sum of the probabilities resulting from the testimo-
nies of the witnesses; a probability which would re-
main, even though the witnesses were of such a char-
acter as to merit no faith at all. This probability arises
from the concurrence itself. That such a concurrence
should spring from chance is as one to infinite; that is,
in other words, morally impossible. If, therefore, con-
cert be excluded, there remains no cause but the reality
of the fact." x

Apply the theory of probability, arising from con-

1 Campbell's "Philosophy of Rhetoric," c. v. b. I, Part III, p. 125.

THE RECORD OF FACT

39

current testimonies, where there has been no previous
concert, to the case of the Evangelists, and we are at
once convinced that they were truthful and that their
histories are true.

(4) Let us now consider the conformity of the testi-
mony of the Evangelists with human experience. This
is the fourth legal test of the credibility of witnesses
prescribed by Starkie.

The conformity of testimony with experience is one
of the most potent and universally applied tests of the
credibility of witnesses. And it may be remarked that
its application is not confined to judicial proceedings
or to courts of law. It requires no professional attain-
ments to make it effective. The blacksmith and car-
penter, as well as the judge and jury, employ it in
every mental operation where the statements of others
are submitted to analysis and investigation. A new
theory being proposed, the correctness of which is
questioned, the test of experience is at once applied.
If it is not in harmony with what we have seen and
heard and felt, we usually reject it; or, at least, doubt
it. If an explorer should return from the Arctic re-
gions and tell us that he had seen oranges, such as we
import from Florida, growing on trees near the North
Pole, we would not believe him. Neither would we
credit the statement of a traveler from South America
that he had seen Polar bears browsing on the banks of
the Amazon. These representations would be utterly
inconsistent with what we know to be the essential con-
ditions of orange culture, and with the well-known
habits and climatic nature of the Polar bear. An an-

4o THE TRIAL OF JESUS

cient document, purporting to date from the time of
Washington and the Revolution, and containing re-
citals about railways, telegraphs, telephones, and elec-
tric lights, would be recognized at once as spurious,
because our own experience as well as facts of history
would tell us that there were no such things in the days
of Washington and the American Revolution. These
are simple illustrations of the application of the test of
experience in the mental processes of weighing and
sifting the testimony of others.

Now, no serious objection to the credibility of the
Gospel writers has been made under the test of the
conformity of their statements with experience, except
in the matter of miracles. It is generally admitted,
even by skeptics, that the facts stated in the New Tes-
tament narratives might have happened in the due
course of nature and in harmony with human experi-
ence, except where miracles are related.

A few skeptics have declared that a miracle is an
impossibility and that the Evangelists were either de-
ceivers or deceived when they wrote their accounts of
the miraculous performances of the Christ; and that,
whether deceivers or deceived, they are unworthy of
belief. The great antagonist of the theory of miracles
among those who assert their impossibility is Spinoza,
who has thus written: "A miracle, whether contrary
to or above nature, is a sheer absurdity. Nothing hap-
pens in nature which does not follow from its laws;
these laws extend to all which enters the Divine mind;
and, lastly, nature proceeds in a fixed and changeless
course — whence it follows that the word ' miracle '

THE RECORD OF FACT 41

can only be understood in relation to the opinions of
mankind, and signifies nothing more than an event, a
phenomenon, the cause of which cannot be explained
by another familiar instance. ... I might say, in-
deed, that a miracle was that, the cause of which can-
not be explained by our natural understanding from
the known principles of natural things."

The radical antagonism of Spinoza to the doctrine
of miracles, as taught in the New Testament scrip-
tures, was the legitimate offspring of his peculiar
philosophy. He was a pantheist and identified God
with nature. He did not believe in a personal God,
separate from and superior to nature. He repu-
diated the theory of a spiritual kingdom having a
spiritual sovereign to whom earth and nature are sub-
ject and obedient. Therefore, every manifestation
of power which he could not identify with a natural
force he believed was unreal, if not actually decep-
tive and fraudulent; since he could not imagine any-
thing superior to nature that could have created the
phenomenon. His denial of miracles was, then,
really nothing less than a denial of the existence of a
personal God who spoke the earth into being in the
very beginning; and has since, with a watchful pater-
nal eye, followed its movements and controlled its
destiny.

The question of miracles is really a matter of faith
and not a problem of science. It is impossible to either
prove or disprove the nature of a miracle by physical
demonstration. In other words, it is impossible to an-
alyze a miracle from the standpoint of chemistry or

42 THE TRIAL OF JESUS

physics. The performance of a miracle, nevertheless,
may be proved by ordinary human testimony, as any
other event may be proved. We may testify to the fact
without being able to understand or to demonstrate the
cause.

Those who believe that there are distinct spiritual as
well as physical forces in the universe; that there is
somewhere an omniscient and omnipotent Spiritual
Being who has but to will the creation of a planet or
the destruction of matter in order to accomplish the
result desired, can easily believe in the exercise of
miraculous power. Those who believe the Bible ac-
count of the creation, that God said in the beginning,
" Let there be light: and there was light" — such per-
sons find no difficulty in believing that Jesus converted
water into wine or caused the lame to walk, if they be-
lieve that He was this same God " manifest in the
flesh." A divinity who, in the morning of creation,
spoke something out of nothing, would certainly not
be impotent to restore life to Lazarus or sight to the
blind Bartimeus.

The trouble with the philosophy of Spinoza is that
his own high priestess — Nature — seems to be con-
stantly working miracles under his own definition; and
miracles, too, that very closely resemble the wonders
said to have been wrought by the Christ. Milk is
taken into the stomach, subjected to various processes
of digestion, is then thrown into the blood and finally
becomes flesh and bone. The ultimate step in this
process of transformation is unknown and, perhaps,
unknowable to scientists. No deeper mystery is sug-

THE RECORD OF FACT 43

gested by the New Testament scriptures. The conver-
sion of water into wine is no stranger, no more incom-
prehensible than the transformation of milk into flesh
and bone. It may be admitted that the chemical
elements are the same throughout in one process and
different in the other. Nevertheless, the results of
both are perfectly described by Spinoza's definition,
" that a miracle was that, the cause of which cannot be
explained by our natural understanding from the
known principles of natural things."

It may be truthfully remarked that nature is every-
where and at all times working wonders in harmony
with and parallel to the miracles wrought by the spir-
itual forces of the universe. God's sovereign miracle
may be described as the changing of a man, with all his
sins and imperfections, into a winged spirit, thus fit-
ting him to leave the coarse and vulgar earth for life
among the stars. Nature, in her feeble way, tries to
imitate the wonder by transforming the caterpillar
into a butterfly, thus fitting it to leave the dunghill for
life among the flowers.

Spinoza insists that miracles are impossible because
" nature proceeds in a fixed and changeless course."
But is this really true? Are the laws of nature inva-
riably uniform? Does not nature seem at times tired
of uniformity and resolved to rise to liberty by the
creation of what we call a miracle, or more vulgarly,
a "freak"? Moving in what Spinoza is pleased to
call a " fixed and changeless course," nature ordinarily
provides a chicken with two legs and a snake with one
head. But what about chickens with three legs and

44 THE TRIAL OF JESUS

snakes with two heads, such as are frequently seen?
Was nature moving in a fixed and changeless course
when these things were created? Could Spinoza have
explained such phenomena by his " natural under-
standing from the known principles of natural things"?
Would he have contented himself with calling them
natural " accidents " or " freaks "? Nevertheless, they
are miracles under his definition; and the entire sub-
ject must be discussed and debated with reference to
some standard or definition of a miracle. If nature
occasionally, in moments of sportiveness or digres-
sion, upsets her own laws and creates what we call
" freaks," why is it unreasonable to suppose that the
great God who created nature should not, at times,
temporarily suspend the laws which He has made for
the government of the universe, or even devote them
to strange and novel purposes in the creation of those
noble phenomena which we call miracles?

Other skeptics, like Renan, do not deny the possibil-
ity of miracles, but simply content themselves with
asserting that there is no sufficient proof that such
things ever happened. They thus repudiate the testi-
mony of the Evangelists in this regard. " It is not,"
says Renan, " then, in the name of this or that philoso-
phy, but in the name of universal experience, that we
banish miracle from history. We do not say that mira-
cles are impossible. We do say that up to this time a
miracle has never been proved." Then the Breton
biographer and philosopher gives us his idea of the
tests that should be made in order to furnish adequate
proof that a miracle has been performed. " If to-

THE RECORD OF FACT

45

morrow," he says, " a thaumaturgus presents himself
with credentials sufficiently important to be discussed
and announces himself as able, say, to raise the dead,
what would be done? A commission composed of
physiologists, physicists, chemists, persons accustomed
to historical criticism would be named. This commis-
sion would choose a corpse, would assure itself that
the death was real, would select a room in which the
experiment should be made, would arrange the whole
system of precautions, so as to leave no chance of
doubt. If, under such conditions, the resurrection
were effected, a probability almost equal to certainty
would be established. As, however, it ought to be pos-
sible always to repeat an experiment — to do over again
that which has been done once; and as, in the order of
miracle, there can be no question of ease or difficulty,
the thaumaturgus would be invited to reproduce his
marvelous act under other circumstances, upon other
corpses, in another place. If the miracle should suc-
ceed each time, two things would be proved: first, that
supernatural events happen in the world; second, that
the power of producing them belongs or is delegated
to certain persons. But who does not see that no mira-
cle ever took place under these conditions? But that
always hitherto the thaumaturgus has chosen the sub-
ject of the experiment, chosen the spot, chosen the
public?"1

This is an extract from the celebrated " Life of
Jesus " by Renan, and is intended to demolish the Gos-
pel account of the miracles of the Christ. It is not too

1 "Intro. Vie de Jesus," p. 62.

46 THE TRIAL OF JESUS

much to say that the great skeptic has failed to exhibit
his usual fairness in argument. He has indirectly
compared Jesus to a thaumaturgus, and has inferen-
tially stated that in the performance of His miracles
He " chose the subject of his experiment, chose the
spot, chose the public." Every student of New Testa-
ment history knows that this is not true of the facts and
circumstances surrounding the performance of mira-
cles by Christ. It is true that vulgar curiosity and
caviling incredulity were not gratified by the pres-
ence of specially summoned " physiologists, physicists,
and chemists." But it is equally true that such per-
sons were not prevented from being present; that there
was no attempt at secrecy or concealment; and that no
subject of experiment, particular spot, or special audi-
ence was ever chosen. The New Testament miracles
were wrought, as a general thing, under the open sky,
in the street, by the wayside, on the mountain slope,
and in the presence of many people, both friends and
enemies of Jesus. There was no searching or advertis-
ing for subjects for experiment. Far from choosing
the subject, the spot, and the public, Jesus exercised
His miraculous powers upon those who came volun-
tarily to Him suffering with some dreadful malady
and asking to be cured. In some instances, the case of
affliction was of long standing and well known to the
community. The healing was done publicly and wit-
nessed by many people.

Renan suggests that the thaumaturgus mentioned in
his illustration would be required to repeat his per-
formance in the matter of raising the dead before he

THE RECORD OF FACT 47

would be fully believed. This reminds us that Jesus
wrought many miracles. More than forty are re-
corded in the Gospel narratives; and in the closing
verse of St. John, there is a strong intimation that He
performed many that were never recorded. These, it
is respectfully submitted, were amply sufficient to
demonstrate His miraculous powers.

Whatever form infidelity may assume in its antago-
nism to the doctrine of miracles, it will be found that
the central idea is that such things are not founded in
experience; and that this test of credibility fails in the
case of the Gospel writers, because they knowingly re-
corded impossible events. It would be idle to attempt
to depreciate the value of this particular test; but it
must be observed that nothing is more fallacious, un-
less properly defined and limited. It must be remem-
bered that the experience of one man, nation, or
generation is not necessarily that of another man, na-
tion, or generation. The exact mechanical processes
employed by the Egyptians in raising the pyramids
are as much a mystery to modern scientists as a Mar-
conigram would be to a savage of New Guinea. The
Orient and the Occident present to each other almost
miraculous forms of diversity in manners, habits, and
customs, in modes of thought and life. " The French-
man says, ' I am the best dyer in Europe : nobody can
equal me, and nobody can surpass Lyons.' Yet in
Cashmere, where the girls make shawls worth $30,000,
they will show him three hundred distinct colors,
which he not only cannot make, but cannot even dis-
tinguish." Sir Walter Scott, in his "Tales of the

48 THE TRIAL OF JESUS

Crusaders," thrillingly describes a meeting between
the Turkish Saladin and the English Richard Coeur-
de-Lion. Saladin asked Richard to give him an ex-
hibition of his marvelous strength. The Norman
monarch picked up an iron bar from the floor of the
tent and severed it. The Mahometan crusader was
amazed. Richard then asked him what he could do.
Saladin replied that he could not pull iron apart like
that, but that he could do something equally as won-
derful. Thereupon, he took an eider-down pillow
from the sofa, and drew his keen, Damascus-tempered
blade across it, which caused it to fall into two pieces.
Richard cried in astonishment: " This is the black art;
it is magic; it is the devil: you cannot cut that which
has no resistance!" Here Occidental strength and
Oriental magic met and wrought seeming miracles
in the presence of each other. In his great lec-
ture on " The Lost Arts," Wendell Phillips says that
one George Thompson told him that he saw a man
in Calcutta throw a handful of floss silk into the air,
and that a Hindoo severed it into pieces with
his saber. A Western swordsman could not do
this.

Objectors to miracles frequently ask why they are
not performed to-day, why we never see them. To
which reply may be made that, under Spinoza's defini-
tion, miracles are being wrought every day not only by
nature, but by man. Why call Edison "the magician"
and " the wizard," unless the public believes this?
But is it any argument against the miracles of Jesus
that similar ones are not seen to-day? Have things not

THE RECORD OF FACT 49

been done in the past that will never be repeated? We
have referred to the pyramids of Egypt and to the lost
art involved in their construction. A further illustra-
tion may be found in the origin of man. One of two
theories is undoubtedly true: that the first man and
woman came into the world without being born; or
that man and woman are the products of evolution
from lower orders of animals. No other theories have
ever been advanced as to the origin of the human race.
Now, it is certain that modern generations have never
experienced either of these things, for all the human
beings of to-day were undoubtedly born of other hu-
man beings, and it is certain that the process of evolu-
tion stopped long ago, since men and women were as
perfect physically and mentally four thousand years
ago as they are to-day. In other words, the processes
which originated man are things of the past, since we
have no Garden of Eden experiences to-day, nor is
there any universal metamorphosis of monkeys going
on. Therefore, to argue that the miracles of Jesus did
not happen, because we do not see such things to-day,
is to deny the undoubted occurrences of history and
developments of human life, because such occurrences
and developments are no longer familiar to us and our
generation.

To denounce everything as false that we have not in-
dividually seen, heard, and felt, would be to limit most
painfully the range of the mental vision. The intel-
lectual horizon would not be greatly extended should
we join with our own the experience of others that we
have seen and known. Much information is reported

5o THE TRIAL OF JESUS

by telegraphic despatch and many things are told us
by travelers that we should accept as true; although
such matters may have no relation to what we have
ever seen or heard. Else, we should be as foolish as
the king of Siam who rejected the story of the Dutch
ambassador, that in Holland water was frequently
frozen into a solid mass. In the warm climate of the
East Indian tropics the king had never seen water so
congealed and, therefore, he refused to believe that
such a thing had ever happened anywhere.

Experience is a most logical and reasonable test if
it is sufficiently extended to touch all the material
phases of the subject under investigation. It is a most
dangerous one if we insist upon judging the material
and spiritual universe, with its infinite variety of forms
and changes, by the limited experience of a simple
and isolated life, or by the particular standards of any
one age or race. A progressive civilization, under
such an application of the test, would be impossible,
since each generation of men would have to begin
de novo, and be restricted to the results of its own ex-
perience. The enforcement of such a doctrine would
prevent, furthermore, the acceptance of the truths of
nature discovered by inventive genius or developed by
physical or chemical research, until such truths had
become matters of universal experience. Every man
would then be in the position of the incredulous citi-
zen who, having been told that a message had been
sent by wire from Baltimore to Washington announ-
cing the nomination of James K. Polk for the presi-
dency, refused to believe in telegraphic messages until

THE RECORD OF FACT 51

he could be at both ends of the line at once. The art
of telegraphy was a reality, nevertheless, in spite of his
incredulity and inexperience. The American savages
who first beheld the ships of Columbus are said to have
regarded them as huge birds from heaven and to have
refused to believe that they were boats, because, in
their experience, they had never seen such immense
canoes with wings. Herodotus tells us of some daring
sailors who crept along the coast of Africa beyond the
limits usually visited at that time. They came back
home with a wonderful account of their trip and told
the story that they had actually reached a country
where their shadows fell toward the south at midday.
They were not believed, and their report was rejected
with scorn and incredulity by the inhabitants of the
Mediterranean coasts, because their only experience
was that a man's shadow always pointed toward the
north; and they did not believe it possible that shad-
ows could be cast otherwise. But the report of the
sailors was true, nevertheless.1

These simple illustrations teach us that beings other
than ourselves have had experiences which are not
only different from any that we have ever had, but are
also either temporarily or permanently beyond our
comprehension. And the moral of this truth, when
applied to the statements of the Evangelists regarding
miracles, is that the fortunate subjects and witnesses of
the miraculous powers of Jesus might have had expe-
riences which we have never had and that we cannot
now clearly comprehend.

1 D. L. Moody, "Sermon on the Resurrection of Jesus."

52 THE TRIAL OF JESUS

(5) In the fifth and last place, as to the coincidence
of their testimony with collateral circumstances.

This is the chief test of credibility in all those cases
where the witness, whose testimony has been reduced
to writing, is dead, absent, or insane. Under such cir-
cumstances it is impossible to apply what may be
termed personal tests on cross-examination; that is, to
develop the impeaching or corroborating features of
bias, prejudice, and personal demeanor to the same ex-
tent as when the witness is still living and testifies
orally. When a written narrative is all that we have,
its reliability can only be ascertained by a close inspec-
tion of its parts, comparing them with each other, and
then with collateral and contemporaneous facts and
circumstances. The value of this test cannot be over-
estimated, and Greenleaf has stated very fully and con-
cisely the basis upon which it rests. " Every event,"
he says, " which actually transpires, has its appropriate
relation and place in the vast complication of circum-
stances of which the affairs of men consist; it owes its
origin to the events which have preceded it, is inti-
mately connected with all others which occur at the
same time and place, and often with those of remote
regions, and in its turn gives birth to numberless others
which succeed. In all this almost inconceivable con-
texture and seeming discord, there is perfect harmony;
and while the fact which really happened tallies ex-
actly with every other contemporaneous incident
related to it in the remotest degree, it is not pos-
sible for the wit of man to invent a story, which, if
closely compared with the actual occurrences of

ST. JOHN AND ST. PETER (DURER)

THE RECORD OF FACT 53

the same time and place, may not be shown to be
false." *

This principle offers a wide field to the skill of the
cross-examiner, and enables him frequently to elicit
truth or establish falsehood when all other tests have
failed. It is a principle also perfectly well known to
the perjurer and to the suborner of witnesses. Multi-
plicity of details is studiously avoided by the false wit-
ness, who dreads particularity and feels that safety lies
in confining his testimony as nearly as possible to a
single fact, whose attendant facts and circumstances
are few and simple. When the witness is too ignorant
to understand the principle and appreciate the danger,
his attorney, if he consents to dishonor his profession
and pollute the waters of justice with corrupt testi-
mony, may be depended upon to administer proper
warning. The witness will be told to know as few
things and to remember as little as possible concern-
ing matters about which he has not been previously
instructed. The result will be that his testimony, es-
pecially in matters in which he is compelled by the
court to testify, will be hesitating, restrained, unequal,
and unnatural. He will be served at every turn by a
most convenient memory which will enable him to
forget many important and to remember many unim-
portant facts and circumstances. He will betray a
painful hesitancy in the matter of committing himself
upon any particular point upon which he has not been
already drilled. The truthful witness, on the other
hand, is usually candid, ingenuous, and copious in his

1 See also I "Starkie on Evidence," pp. 496-99.

54 THE TRIAL OF JESUS

statements. He shows a willingness to answer all ques-
tions, even those involving the minutest details, and
seems totally indifferent to the question of verification
or contradiction. The texture of his testimony is,
therefore, equal, natural, and unrestrained.

Now these latter characteristics mark every page of
the New Testament histories. The Gospel writers
wrote with the utmost freedom, and recorded in detail
and with the utmost particularity, the manners, cus-
toms, habits, and historic facts contemporaneous with
their lives. The naturalness and ingenuousness of
their writings are simply marvelous. There is nowhere
any evidence of an attempt to conceal, patch up, or
reconcile. No introductory exclamations or subse-
quent explanations which usually characterize false
testimony appear anywhere in their writings. They
were seemingly absolutely indifferent to whether they
were believed or not. Their narratives seem to say:
These are records of truth; and if the world rejects
them it rejects the facts of history. Such candor and
assurance are always overwhelmingly impressive; and
in every forum of debate are regarded as unmistakable
signs of truth.

The Evangelists, it must be assumed, were fully
aware of the danger of too great particularity in the
matter of false testimony, and would have hesitated to
commit themselves on so many points if their state-
ments had been untrue. We have already noted the
opinion of Professor Holtzmann, of Heidelberg, that
the Synoptic Gospels were committed to writing be-
tween the years 60 and 80 of our era. At that time it

THE RECORD OF FACT 55

is certain that there were still living many persons who
were familiar with the events in the life and teachings
of the Savior, as well as with the numerous other facts
and circumstances related by the sacred writers. St.
Paul, in I Cor. xv. 6, speaks of five hundred brethren
to whom the risen Jesus appeared at one time; and
he adds, " of whom the greater part remain unto this
present, but some are fallen asleep." And it must be
remembered that this particular group of two hun-
dred and fifty or more were certainly not the only
persons then living who had a distinct remembrance
of the Master, His teachings, and His miracles. Many
who had been healed by Him, children who had sat
upon His knee and been blessed by Him, and many
members of the Pharisaic party and of the Sadducean
aristocracy who had persecuted Him and had then
slain Him, were doubtless still living and had a lively
recollection of the events of the ministry of the Naza-
rene. Such persons were in a position to disprove
from their personal knowledge false statements made
by the Evangelists. A consciousness of this fact would
have been, within itself, a strong inducement to tell
the truth.

But not only are the Gospels not contradicted by
contemporaneous writers; they are also not impeached
or disproved by later scientific research and historical
investigation. And at this point we come to make a
direct application of the test of the coincidence of their
testimony with collateral and contemporaneous his-
tory. For this purpose, as a matter of illustration, only
facts in profane history corroborative of the circum-

$6 THE TRIAL OF JESUS

stances attending the trial and crucifixion of the Mas-
ter will be cited.

In the first place, the Evangelists tell us that Pon-
tius Pilate sat in judgment on the Christ. Both Jose-
phus and Tacitus tell us that Pilate was governor of
Judea at that time.1

In John xviii. 31 we read: "Then said Pilate unto
them, Take ye him, and judge him according to your
law. The Jews therefore said unto him, It is not law-
ful for us to put any man to death." From many
profane historians, ancient and modern, we learn that
the power of life and death had been taken from the
Jews and vested in the Roman governor.2

In John xix. 16, 17 occurs this passage: "And they
took Jesus, and led him away; and he, bearing his cross,
went forth." This corroborative sentence is found in
Plutarch: "Every kind of wickedness produces its own
particular torment; just as every malefactor, when he
is brought forth to execution, carries his own cross." 3

In Matthew xxvii. 26 we read: "When he had
scourged Jesus, he delivered him to be crucified."
That scourging was a preliminary to crucifixion
among the Romans is attested by many ancient writers,
among whom may be mentioned Josephus and Livy.
The following passages are taken from Josephus:

Whom, having first scourged with whips, he crucified.4
Being beaten, they were crucified opposite to the citadel.5
He was burned alive, having been first beaten.®

1 " Ant.," XVIII. 3, 1. 4 P. 1080, edit. 45.

2 See authorities cited in "The Brief." 5 P. 1247, ecnt- 24> Huds.

3 'De iis qui sero puniuntur," p. 554. G P. 1327, edit. 43.

THE RECORD OF FACT 57

From Livy, a single sentence will suffice :

All were led out, beaten with rods, and beheaded.1

In John xix. 19, 20 we read: " And Pilate wrote a
title and put it on the cross; and it was written in He-
brew, and Greek, and Latin." That it was a custom
among the Romans to affix the accusation against the
criminal to the instrument of his punishment appears
from several ancient writers, among them Suetonius
and Dion Cassius. In Suetonius occurs this sentence:
" He exposed the father of the family to the dogs, with
this title, l A gladiator, impious in speech.' " 2 And in
Dion Cassius occurs the following: " Having led him
through the midst of the court or assembly, with a
writing signifying the cause of his death, and after-
wards crucifying him." 3

And finally, we read in John xix. 32: "Then came
the soldiers and brake the legs of the first, and of the
other which was crucified with him." By an edict of
Constantine, the punishment of crucifixion was abol-
ished. Speaking in commendation of this edict, a cele-
brated heathen writer mentions the circumstances of
breaking the legs. " He was pious to such a degree,"
says this writer, " that he was the first to set aside that
very ancient punishment, the cross, with the breaking
of legs.4

1 "Productique omnes, virgisque caesi, ac securi percussi," Lib. XI. c. 5.

2 Domit. Cap. X. " Patremfamilias — canibus objecit, cum hoc titulo,
Impie locutus, parmularius."

3 Book LIV.

4 "Aur. Vict. Ces.," Cap. XLI. "Eo plus, ut etiam vetus veterrimumque
supplicium, patibulum, et cruribus suffringendis, primus removerit." Also
see Paley's "Evidences of Christianity," pp. 266-68.

58 THE TRIAL OF JESUS

If we leave the narrow circle of facts attendant upon
the trial and crucifixion of Jesus with its corroborative
features of contemporary history, and consider the
Gospel narratives as a whole, we shall find that they
are confirmed and corroborated by the facts and teach-
ings of universal history and experience. An exami-
nation of these narratives will also reveal a divine ele-
ment in them which furnishes conclusive proof of
their truthfulness and reliability. A discussion of the
divine or spiritual element in the Gospel histories
would be foreign to the purpose of this treatise. The
closing pages of Part I will be devoted to a considera-
tion of the human element in the New Testament nar-
ratives. This will be nothing more than an elabora-
tion of the fifth legal test of credibility mentioned by
Starkie.

By the human or historical element of credibility
in the Gospel histories is meant that likeness or resem-
blance in matters of representation of fact to other
matters of representation of fact which we find re-
corded in secular histories of standard authority whose
statements we are accustomed to accept as true. The
relations of historic facts to each other, and the con-
nections and coincidences of things known or believed
to be true with still others sought to be proved, form
a fundamental ground of belief, and are, therefore, re-
liable modes of proof. The most casual perusal of the
New Testament narratives suggests certain striking
resemblances between the events therein narrated and
well-known historical occurrences related by secular
historians whose statements are implicitly believed.

THE RECORD OF FACT 59

Let us draw a few parallels and call attention to a few
of these resemblances.

Describing the anguish of the Savior in the Garden,
St. Luke says: "And being in an agony, He prayed
more earnestly: And his sweat was as it were great
drops of blood falling down to the ground." l

This strange phenomenon of the " bloody sweat "
has been of such rare occurrence in the history of the
world that its happening in Gethsemane has been fre-
quently denied. The account of it has been ascribed
to the overwrought imagination of the third Evan-
gelist in recording the errors of tradition. And yet
similar cases are well authenticated in the works of
secular writers. Tissot reports a case of " a sailor who
was so alarmed by a storm, that through fear he fell
down, and his face sweated blood which, during the
whole continuance of the storm, returned like ordinary
sweat, as fast as it was wiped away." 2 Schenck cites
the case of " a nun who fell into the hands of soldiers;
and, on seeing herself encompassed with swords and
daggers threatening instant death, was so terrified and
agitated that she discharged blood from every part of
her body, and died of hemorrhage in the sight of her
assailants." 3 Writing of the death of Charles IX of
France, Voltaire says: "The disease which carried
him off is very uncommon; his blood flowed from all
his pores. This malady, of which there are some exam-
ples, is the result either of excessive fear, furious pas-

1 Luke xxii. 44.

2 Tissot, "Traite des Nerfs," pp. 279, 280.

3 Joannes Schenck a Grafenberg, "Observ. Medic," Lib. III. p. 45^-

6o THE TRIAL OF JESUS

sion, or of a violent and melancholic temperament." 1
The same event is thus graphically described by the
old French historian, De Mezeray: "After the vigor
of his youth and the energy of his courage had long
struggled against his disease, he was at length reduced
by it to his bed at the castle of Vincennes, about the 8th
of May, 1574. During the last two weeks of his life his
constitution made strange efforts. He was affected
with spasms and convulsions of extreme violence. He
tossed and agitated himself continually and his blood
gushed from all the outlets of his body, even from the
pores of his skin, so that on one occasion he was found
bathed in a bloody sweat." 2

If the sailor, the nun, and the king of France were
afflicted with the " bloody sweat," why should it seem
incredible that the man Jesus, the carpenter of Naza-
reth, should have been similarly afflicted? If Tissot,
Schenck, and Voltaire are to be believed, why should
we refuse to believe St. Luke? If St. Luke told the
truth in this regard, why should we doubt his state-
ments concerning other matters relating to the life,
death, and resurrection of the Son of God? Does not
Voltaire, the most brilliant and powerful skeptic that
ever lived, corroborate in this particular the biogra-
pher of the Christ?

Let us pass to another instance of resemblance and
corroboration. While describing the crucifixion, St.
John wrote the following: " But one of the soldiers
with a spear pierced his side, and forthwith came

1 Voltaire, "CEuvres completes," vol. xviii. pp. 531, 532.

2 De Mezeray, "Histoire de France," vol. iii. p. 306.

THE RECORD OF FACT 61

there out blood and water." 1 Early skeptical criticism
denied the account of the flowing of blood and water
from the side of the Savior because, in the first place,
the other Evangelists did not mention the circum-
stance; and, in the second place, it was an unscientific
fact stated. But modern medical science has very
cleverly demonstrated that Jesus, according to the
Gospel accounts, died of rupture of the heart. About
the middle of the last century, a celebrated English
physician and surgeon, Dr. Stroud, wrote a treatise
entitled, " Physical Cause of the Death of Christ." In
this book, he proved very clearly that cardiac rupture
was the immediate cause of the death of Jesus on the
cross. Many arguments were adduced to establish this
fact. Among others, it was urged that the shortness of
time during which the sufferer remained upon the cross
and His loud cry just before " He gave up the ghost,"
tended to prove that a broken heart was the cause
of the death of the Man of Sorrows. But the strong-
est proof, according to the author of this work,
was the fact that blood and water flowed from the
dead man when a spear was thrust into His side.
This, says Dr. Stroud, has happened frequently when
the heart was suddenly and violently perforated after
death from cardiac rupture. Within a few hours after
death from this cause, he says, the blood frequently
separates into its constituent parts or essential ele-
ments: crassamentum, a soft clotted substance of deep-
red color, and serum, a pale, watery liquid — popularly
called blood and water, which will flow out separately,

1 John xix. 34.

62 THE TRIAL OF JESUS

if the pericardium and heart be violently torn or punc-
tured. In this treatise numerous medical authorities
are cited and the finished work is indorsed by several
of the most famous physicians and surgeons of Eng-
land.

It is very probable that St. John did not know the
physical cause of the strange flow of blood and water
from the side of Jesus. It seems that he was afraid
that he would not be believed; for, in the following
verse, he was careful to tell the world that he himself
had personally seen it. " And he that saw it bare rec-
ord, and his record is true: And he knoweth that he
saith true that ye might believe." *

Here again modern medical science has corrobo-
rated, in the matter of the flowing of blood and water
from the side of Jesus, the simple narrative of the gen-
tle and loving Evangelist.

Still another illustration of resemblance, coinci-
dence, and corroboration is furnished by the incident of
the arrest of Jesus in the Garden. St. John says: " As
soon, then, as he had said unto them, I am he, they
went backward and fell to the ground." 2

This is only one of several cases mentioned in history
where ordinary men have been dazed and paralyzed
in the presence of illustrious men against whom they
were designing evil. When a Gallic trooper was sent
by Sulla to Minturnae to put Marius to death, the old
Roman lion, his great eyes flashing fire, arose and ad-
vanced toward the slave, who fled in utter terror from
the place, exclaiming, " I cannot kill Caius Marius! "3

1 John xix. 35. 2 John xviii. 6. 3 "Encyc. Brit.," vol. xv. p. 550.

THE RECORD OF FACT 63

Again, we learn from St. Matthew that at the mo-
ment of the arrest in the Garden, " all the disciples
forsook him and fled."

This is no isolated case of cowardice and desertion.
It is merely an illustration of a universal truth: that
the multitude will follow blindly and adore insanely
the hero or prophet in his hour of triumph and coro-
nation, but will desert and destroy him at the moment
of his humiliation and crucifixion.

Note the burning of Savonarola. The patriot-
priest of the Florentine Republic believed himself in-
spired of God; his heroic life and martyr death seemed
to justify his claim. From the pulpit of St. Mark's
he became the herald and evangel of the Reformation,
and his devoted followers hung upon his words as if
inspiration clothed them with messages from the skies.
And yet when a wicked Inquisition had nailed him to
the cross and fagots were flaming about him, this same
multitude who adored him, now reviled him and
jeered and mocked his martyrdom.

Note the career of Napoleon. When the sun of Aus-
terlitz rose upon the world the whole French nation
grew delirious with love and homage for their em-
peror, who was once a subaltern of Corsica. But
when the Allies entered Paris after the battle of Leip-
sic, this same French nation repudiated their imperial
idol, cast down his images, canceled his decrees, and
united with all Europe in demanding his eternal ban-
ishment from France. The voyage to Elba followed.
But the historic melodrama of popular fidelity and
fickleness was not yet completely played. When this

64 THE TRIAL OF JESUS

same Napoleon, a few months later, escaped from his
islet prison in the Mediterranean and landed on the
shores of France, this same French nation again grew
delirious, welcomed the royal exile with open arms,
showered him with his eagles, and almost smothered
him with kisses. A hundred days passed. On the
frightful field of Waterloo, " Chance and Fate com-
bined to wreck the fortunes of their former king."
Again the fickle French multitude heaped execrations
upon their fallen monarch, declared the Napoleonic
dynasty at an end and welcomed with acclamations of
joy the return of the exiled Bourbon Louis XVIII.

And when the Evangelist wrote these words : " All
the disciples forsook him and fled," he simply gave
expression to a form of truth which all history reflects
and corroborates.

Again, the parallels and resemblances of sacred and
profane history do not seem to stop with mere narra-
tives of facts. Secular history seems to have produced
at times characters in the exact likeness of those in
sacred history. The resemblance is often so striking
as to create astonishment. For instance, who was St.
Peter but Marshal Ney by anticipation? Peter was
the leader of the Apostolic Twelve; Ney was the chief
of the Twelve Marshals of Napoleon. Peter was im-
pulsive and impetuous; so was Ney. Peter was the
first to speak and act in all the emergencies of the
Apostolic ministry; Ney, so Dumas tells us, was al-
ways impatient to open the battle and lead the first
charge. Peter was probably the last to leave the gar-
den in which the great tragedy of his Master had

THE RECORD OF FACT 6$

begun; Ney was the last to leave the horrors of a Rus-
sian winter in which the beginning of the end of the
career of his monarch was plainly seen. Peter denied
Jesus; Ney repudiated Napoleon, and even offered to
bring him, at the time of his escape from Elba, in
a cage to Louis XVIII. Peter was afterwards cruci-
fied for his devotion to Jesus whom he had denied;
Ney was afterwards shot for loyalty to Napoleon
whom he had once repudiated.

The examples heretofore given involve the idea of
comparison and are based upon resemblance. These
illustrations could be greatly extended, but it is be-
lieved that enough has been said in this connection.
However, in closing this brief discussion of the human
element in the sacred writings as evidenced by the
coincidences and resemblances of their narratives to
those of profane history, slight mention may be made
of another test of truth which may be applied to the
histories of the Evangelists. This test is not derived
from a comparison which is focused upon any particu-
lar group of historic facts. It springs from an instan-
taneously recognized and inseparable connection be-
tween the statements made by the Gospel writers and
the experience of the human race. A single illustra-
tion will suffice to elucidate this point. When Jesus
was nailed upon the cross, the sad and pathetic spec-
tacle was presented of the absence of the Apostolic
band, with the exception of St. John, who was the only
Apostle present at the crucifixion. The male members
of the following of the Nazarene did not sustain and
soothe their Master in the supreme moment of His an-

66 THE TRIAL OF JESUS

guish. But the women of His company were with
Him to the end. Mary, his mother, Mary Magdalene,
Mary, the wife of Cleophas, Salome, the mother of
St. John the Evangelist, and others, doubtless among
" the women that followed him from Galilee," min-
istered to His sufferings and consoled Him with their
presence. They were the last to cling to His cross and
the first to greet Him on the morning of the third day;
for when the resurrection morn dawned upon the
world, these same women were seen hastening toward
the sepulcher bearing spices — fragrant offerings of
deathless love. What a contrast between the loyalty
and devotion of the women and the fickle, faltering
adherence of the men who attended the footsteps of
the Man of Sorrows in His last days! One of His
Apostles denied Him, another betrayed Him, and all,
excepting one, deserted Him in His death struggle.
His countrymen crucified Him ignominiously. But
" not one woman mentioned in the New Testament
ever lifted her voice against the Son of God."

This revelation from the sacred pages of the devo-
tion of woman is reflected in universal history and ex-
perience. It is needless to give examples. Suffice it
to say that when Matthew, Mark, Luke, and John tell
us of this devotion, we simply answer: yes, this has
been ever true in all countries and in every age. We
have learned it not only from history but from our
own experience in all the affairs of life, extending
from the cradle to the grave. The night of sorrow
never grows so dark that a mother's love will not ir-
radiate the gloom. The criminal guilt of a wayward

THE RECORD OF FACT 67

son can never become so black that her arms will not
be found about him. If we pass from loving loyalty
to the individual, to patriotic devotion to the causes of
the nations, woman's fidelity is still undying. The
women of France are said to have paid the German
war debt. The message of the Spartan mother to her
soldier son is too well known to be repeated. When
the legions of Scipio engirdled the walls of Carthage
and desperation seized the inhabitants of the Punic
city, Carthaginian women cut their long black hair to
furnish bowstrings to the Carthaginian archers. Illus-
trations might be multiplied; but these will suffice to
show that Mary and Martha and Salome, the women
of the Gospels, are simply types of the consecrated
women of the world.

When we come to summarize, we are led to declare
that if the Gospel historians be not worthy of belief we
are without foundation for rational faith in the secular
annals of the human race. No other literature bears
historic scrutiny so well as the New Testament biogra-
phies. Not by a single chain, but by three great chains
can we link our Bible of to-day with the Apostolic
Bible. The great manuscripts: the Vatican, the Alex-
andrian, and the Sinaitic, dating from the middle of
the fourth and fifth centuries, must have been copies
of originals, or at least of first copies. The Bible is
complete in these manuscripts to-day.

The Versions, translations of the original Scriptures
from the language in which they were first written
into other languages, form a perfect connection be-
tween the days of the Apostles and our own. The

68 THE TRIAL OF JESUS

Vulgate, the celebrated Latin version of St. Jerome,
was completed A.D. 385. In making this translation
the great scholar has himself said that he used
" ancient (Greek) copies." Manuscripts that were
ancient, A.D. 385, must have been the original writings,
or, at least, first copies. The Vulgate, then, is alone a
perfect historic connection between the Bible that we
read to-day and that studied by the first Christians.

Again, the Writings of the Church Fathers furnish
a chain, without a single missing link, between the
Bible of this generation and that of the first generation
of the followers of the Christ. It has been truthfully
said that if all the Bibles in the world were destroyed
an almost perfect Bible could be reconstructed from
quotations from these writings, so numerous and so ex-
act are they. Beginning with Barnabas and Clement,
companions of St. Paul, and coming down through the
ages, there is not a single generation in which some
prince or potentate of the Church has not left con-
vincing evidence in writing that the Books of the Old
and New Testament which we read to-day are identi-
cal with those read by the first propagators of our
faith. The chain of proof forged from the Writings
of the early Fathers is made up of a hundred links,
each perfect within itself and yet relinked and welded
with a hundred others that make each and all doubly
strong. If these various testimonies, the Manuscripts,
the Versions, and the Writings of the Church Fathers,
be taken, not singly, but collectively, in support and
corroboration of each other, we have, then, not merely
a chain but rather a huge spiritual cable of many wires,

THE RECORD OF FACT 69

stretching across the great sea of time and linking our
Bible of to-day inseparably with that of the Apostolic
Age.

If it be objected that these various writings might
have been and probably were corrupted in coming
down to us through the centuries, reply may be made
that the facts of history repel such suggestions. As
Mr. Greenleaf has suggested, the jealousy of opposing
sects preserved them from forgery and mutilation.
Besides these sects, it may be added, there were, even in
the earliest times, open and avowed infidels who as-
saulted the cardinal tenets of the Christian faith and
made the Gospel histories the targets for their attacks.
They, too, would have detected and denounced any
attempt from any source to corrupt these writings.

Another and final, and probably the most cogent
reason for the remarkable preservation of the books of
the Bible, is the reverential care bestowed upon them
by their custodians in every age. It is difficult for the
modern world to fully appreciate the meaning and
extent of this reverence and care. Before the age of
printing, it must be remembered, the masses of the
people could not and did not possess Bibles. In the
Middle Ages it required a small fortune to own a sin-
gle copy. The extreme scarcity enhanced not only the
commercial value but added to the awful sanctity that
attached to the precious volume; on the principle that
the person of a king becomes more sacred and mysteri-
ous when least seen in public. Synagogues and monas-
teries were, for many centuries, the sole repositories of
the Holy Books, and the deliberate mutilation of any

7o THE TRIAL OF JESUS

portion of the Bible would have been regarded like the
blaspheming of the Deity or the desecration of a
shrine. These considerations alone are sufficient reason
why the Holy Scriptures have come down to us uncor-
rupted and unimpaired.

These various considerations are the logical basis of
that rule of law laid down by Mr. Greenleaf, under
which the Gospel histories would be admitted into a
modern court of law in a modern judicial proceeding.

Under legal tests laid down by Starkie, we have seen
that the Evangelists should be believed, because: (i)
They were honest and sincere, that is, they believed
that they were telling the truth; (2) they were un-
doubtedly men of good intelligence and were eye-
witnesses of the facts narrated by them in the New
Testament histories; (3) they were independent his-
torians, who wrote at different times and places and,
in all essential details, fully corroborate each other;

(4) excepting in the matter of miracles, which skep-
ticism has never been able to fully disprove, their tes-
timony is in full conformity with human experience;

(5) their testimony coincides fully and accurately
with all the collateral, social, historical, and religious
circumstances of their time, as well as with the teach-
ings and experience of universal history in every age.

Having received from antiquity an uncorrupted
message, born of truth, we have, it is believed, a per-
fect record of fact with which to discuss the trial of
Jesus.

PART II
HEBREW CRIMINAL LAW

MOSES AND THE LAW (MICHAEL ANGELO)

CHAPTER I

HEBREW CRIMINAL LAW — MOSAIC AND TALMUDIC

HE Pentateuch and the Talmud
form the double basis of He-
brew jurisprudence. The wis-
dom of the lawgiver," says Ba-
con, " consists not only in a
platform of justice, but in the
application thereof." The Mo-
saic Code, embodied in the Pen-
J tateuch, furnished to the chil-
dren of Israel the necessary platform of justice;
ancient tradition and Rabbinic interpretation contained
in the Talmud, supplied needed rules of practical
application. Employing classic terminology, it may
be said that the ordinances of Moses were the substan-
tive and the provisions of the Talmud were the adjec-
tive laws of the ancient Hebrews. These terms are not
strictly accurate, however, since many absolute rights
are declared and defined in the Talmud as well as in
the Pentateuch. Another definition, following the
classification of Roman legists, describes Mosaic in-
junction as the lex scripta and Talmudic provision
as the lex non scripta of the Commonwealth of Israel.
In other words, the Pentateuch was the foundation,
the cornerstone; the Talmud was the superstruc-

73

74 THE TRIAL OF JESUS

ture, the gilded dome of the great temple of Hebrew
justice.

Bible students throughout the world are familiar
with the provisions of the Mosaic Code; but the con-
tents of the Talmud are known to few, even among
scholars and literary men. The most appalling igno-
rance has existed in every age among the Gentile un-
initiated as to the nature and identity of this gigantic
literary compilation. Henricus Segnensis, a pious
monk of the Middle Ages, having heard and read
many things about the despised heretical Talmud, con-
ceived it to be a person and, in a transport of religious
frenzy, declared that he would sooner or later have
him, the Talmud, put to death by the hangman!1

For the benefit of the average reader as well as to
illuminate the general subject, a short description of
the Talmud will be given.

Definition. — Many attempts have been made to de-
fine the Talmud, but all definition of this monumental
literary production is necessarily inaccurate and in-
complete because of the vastness and peculiarity of the
matter treated. To describe it as an encyclopedia of
the life and literature, law and religion, art and science
of the Hebrew people during a thousand years would
convey only an approximately correct idea of its true
meaning, for it is even more than the foregoing de-
scriptive terms would indicate. Emanuel Deutsch in
his brilliant essay on the Talmud defines it as " a Cor-
pus Juris, an encyclopedia of law, civil and penal, ec-
clesiastical and international, human and divine. It is

1 Mendelsohn, "Criminal Jurisprudence of the Ancient Hebrews," p. 191.

HEBREW CRIMINAL LAW 75

a microcosm, embracing, even as does the Bible,
heaven and earth. It is as if all the prose and poetry,
the science, the faith and speculation of the Old World
were, though only in faint reflections, bound up in it
in nuceT

Benny describes it as " the Talmud — that much
maligned and even more misunderstood compilation
of the rabbins; that digest of what Carlyle would term
allerlei-wissenschaften; which is at once the compen-
dium of their literature, the storehouse of their tradi-
tion, the exponent of their faith, the record of their
acquirements, the handbook of their ceremonials and
the summary of their legal code, civil and penal."

To speak of the Talmud as a book would be inaccu-
rate. It is a small library, or collection of books.
" Modern editions of the Talmud, including the most
important commentaries, consist of about 3,000 folio
sheets, or 12,000 folio pages of closely printed matter,
generally divided into twelve or twenty volumes. One
page of Talmudic Hebrew intelligibly translated into
English would cover three pages; the translation of
the whole Talmud with its commentaries would ac-
cordingly make a library of 400 volumes, each num-
bering 360 octavo pages." *

It would be well to bear in mind that the contents
of the Talmud were not proclaimed to the world by
any executive, legislative, or judicial body; that they
were not the result of any resolution or mandate of any
congregation, college, or Sanhedrin; that they were
not, in any sense, formal or statutory. They were sim-

1 Mendelsohn, p. 189, n. I.

76 THE TRIAL OF JESUS

ply a great mass of traditionary matter and commen-
tary transmitted orally through many centuries before
being finally reduced to writing. Rabbinism claims
for these traditions a remote antiquity, declaring them
to be coeval with the proclamation of the Decalogue.
Many learned doctors among the Jews ascribe this an-
tiquity to the whole mass of traditional laws. Others
maintain that only the principles upon which Rabbinic
interpretation and discussion are based, can be traced
back so far. But it is certain that distinct traditions
are to be found at a very early period in the history of
the children of Israel, and that on their return from
Babylonian captivity these traditions were delivered
to them by Ezra and his coadjutors of the Great As-
sembly.

This development of Hebrew jurisprudence along
lines of written and oral law, Pentateuch and Talmud,
Mosaic ordinance and time-honored tradition, seems
to have followed in obedience to a general principle
of juristic growth. Lex scripta and lex non scripta are
classical Roman terms of universal application in
systems of enlightened jurisprudence. A charter, a
parchment, a marble column, a table of stone, a sacred
book, containing written maxims defining legal rights
and wrongs are the beginnings of all civilized schemes
of justice. Around these written, fundamental laws
grow and cluster the race traditions of a people which
attach themselves to and become inseparable from the
prime organic structure. These oral traditions are the
natural and necessary products of a nation's growth
and progress. The laws of the Medes and Persians,

HEBREW CRIMINAL LAW 77

at once unalterable and irrevocable, represent a
strange and painful anomaly in the jurisprudence of
mankind. No written constitution, incapable of
amendment and subject to strict construction, can long
survive the growth and expansion of a great and
progressive people. The ever-changing, perpetually
evolving forms of social, commercial, political, and
religious life of a restless, marching, ambitious race,
necessitate corresponding changes and evolutions in
laws and constitutions. These necessary legal supple-
ments are as varied in origin as are the nations that
produce them. Magna Charta, wrung from John at
Runnymede, became the written basis of English law
and freedom, and around it grew up those customs and
traditions that — born on the shores of the German
Ocean, transplanted to the Isles of Britain, nurtured
and developed through a thousand years of judicial in-
terpretation and application — became the great basic
structure of the Common Law of England.

What the Mosaic Code was to the ancient Hebrews,
what Magna Charta is to Englishmen, the Koran is to
Mahometans: the written charter of their faith and
law. Surrounding the Koran are many volumes of
tradition, made up of the sayings of Mahomet, which
are regarded as equally sacred and authoritative as the
Koran itself. These volumes of Mahometan tradition
are called the Sonna and correspond to the Talmud of
the Hebrews. An analysis of any great system of juris-
prudence will reveal the same natural arrangement of
written and oral law as that represented by the Penta-
teuch and the Talmud of the Jews.

78 THE TRIAL OF JESUS

The word " Talmud " has various meanings, as it
appears in Hebrew traditional literature. It is an old
scholastic term, and " is a noun formed from the verb
' limmed '==' to teach.' It therefore means, primarily,
'teaching,' although it denotes also 'learning'; it is
employed in this latter sense with special reference to
the Torah, the terms ' Talmud ' and ' Torah ' being
usually combined to indicate the study of the Law, both
in its wider and its more restricted sense." 1 It is thus
frequently used in the sense of the word " exegesis,"
meaning Biblical exposition or interpretation. But
with the etymological and restricted, we are not so
much interested as with the popular and general sig-
nification of the term " Talmud." Popularly used, it
means simply a small collection of books represented
by two distinct editions handed down to posterity by
the Palestinian and Babylonian schools during the
early centuries of the Christian era.

Divisions of the Talmud. — The Talmud is divided
into two component parts: the Mishna, which may be
described as the text; and the Gemara, which may be
termed the commentary.2 The Mishna, meaning tra-
dition, is almost wholly law. It was, indeed, of old,
translated as the Second or Oral Law — the SevTepcocns
— to distinguish it from the Written Law delivered by
God to Moses. The relationship between the Mishna,
meaning oral law, and the Gemara, meaning commen-
tary, may be illustrated by a bill introduced into Con-
gress and the debates which follow. In a general way,

1 "Jewish Encyc," vol. xii. p. I.

2 Emanuel Deutsch, "The Talmud," p. 26.

HEBREW CRIMINAL LAW 79

the bill corresponds to the Mishna, and the debates to
the Gemara. The distinction, however, is that the law
resulting from the passage of the bill is the effect and
culmination of the debate; while the Mishna was al-
ready law when the Gemara or commentary was made.
As we have seen above, Hebrew jurisprudence in its
principles and in the manner of their interpretation
was chiefly transmitted by the living voice of tradition.
These laws were easily and safely handed down from
father to son through successive generations as long as
Jewish nationality continued and the Temple at Jeru-
salem still stood. But, with the destruction of the
Temple and the banishment of the Jews from Palestine
(A.D. jo) , the danger became imminent that in the loss
of their nationality would also be buried the remem-
brance of their laws. Moved with pity and compas-
sion for the sad condition of his people, Judah the
Holy, called Rabbi for preeminence, resolved to col-
lect and perpetuate for them in writing their time-
honored traditions. His work received the name
Mishna, the same which we have discussed above.
But it must not be imagined that this work was the
sudden or exclusive effort of Rabbi Judah. His
achievement was merely the sum total and culmination
of the labors of a long line of celebrated Hebrew sages.
"The Oral Law had been recognized by Ezra; had
become important in the days of the Maccabees; had
been supported by Pharisaism; narrowed by the school
of Shammai, codified by the school of Hillel, systema-
tized by R. Akiba, placed on a logical basis by R. Ish-
mael, exegetically amplified by R. Eliezer, and con-

THE TRIAL OF JESUS

stantly enriched by successive rabbis and their schools.
Rabbi Judah put the coping-stone to the immense
structure." 1

Emanuel Deutsch gives the following subdivisions
of the Mishna:

The Mishna is divided into six sections. These are sub-
divided again into n, 12, 7, 9 (or 10), n, and 12 chapters,
respectively, which are further broken up into 524 para-
graphs. We shall briefly describe their contents :

Section I. Seeds: of Agrarian Laws, commencing with
a chapter on Prayers. In this section, the various tithes and
donations due to the Priests, the Levites, and the poor, from
the products of the lands, and further the Sabbatical year
and the prohibited mixtures in plants, animals, garments, are
treated of.

Section II. Feasts: of Sabbaths, Feast, and Fast days,
the work prohibited, the ceremonies ordained, the sacrifices
to be offered, on them. Special chapters are devoted to the
Feast of the Exodus from Egypt, to the New Year's Day, to
the Day of Atonement (one of the most impressive portions
of the whole book), to the Feast of Tabernacles and to that
of Haman.

Section III. Women: of betrothal, marriage, divorce,
etc., also of vows.

Section IV. Damages: including a great part of the civil
and criminal law. It treats of the law of trover, of buying
and selling, and the ordinary monetary transactions. Further,
of the greatest crime known to the law, viz., idolatry. Next
of witnesses, of oaths, of legal punishments, and of the San-
hedrin itself. This section concludes with the so-called " Sen-
tences of the Fathers," containing some of the sublimest
ethical dicta known in the history of religious philosophy.

Section V. Sacred Things: of sacrifices, the first-born,
etc.; also of the measurements of the Temple (Middoth).

Section VI. Purifications: of the various levitical and

1 Farrar, "Hist, of Interpretation."

HEBREW CRIMINAL LAW 81

other hygienic laws, of impure things and persons, their puri-
fication, etc.1

Recensions. — The Talmud exists in two recensions:
the Jerusalem and the Babylonian. These two edi-
tions represent a double Gemara; the first (Jerusalem)
being an expression of the schools in Palestine and re-
dacted at Tiberias about 390 A.D. ; the second (Baby-
lonian) being an expression of the schools in Babylo-
nia and redacted about 365-427 A.D.

The Mishna, having been formed into a code, be-
came in its turn what the Pentateuch had been before
it, a basis of discussion and development. The Ge-
mara of the Jerusalem Talmud embodies the critical
discussions and disquisitions on the Mishna by hun-
dreds of learned doctors who lived in Palestine, chiefly
in Galilee, from the end of the second till about the
middle of the fifth century of the Christian era. The
Gemara of the Babylonian Talmud embodies the criti-
cisms and dissertations on the same Mishna of numer-
ous learned doctors living in various places in Baby-
lonia, but chiefly those of the two great schools of
Sura and Pumbaditha.1 The Babylonian Talmud is
written in " West Aramaean," is the product of six or
seven generations of constant development, and is
about four times as large as that of the Jerusalem Tal-
mud, which is written in " East Aramaean."2 It should
be kept clearly before the mind that the only differ-
ence between these two recensions is in the matter of

1 Emanuel Deutsch, "The Talmud," p. 47.

2 " Encyc. Brit.," vol. xxiii. p. 35.

3 Emanuel Deutsch, "The Talmud," p. 58.

8a THE TRIAL OF JESUS

commentary. The two sets of doctors whose different
commentaries distinguish the two Talmuds dealt with
the same Mishna as a basis of criticism. But decided
differences are noticeable in the subject matter and
style of the two Gemaras represented by the two re-
censions of the Talmud. The discussions and com-
mentaries in the Jerusalem Talmud are simple, brief,
and pointed; while those of the Babylonian Talmud
are generally subtle, abstruse, and prolix. The disser-
tations in the Jerusalem Talmud are filled to overflow-
ing with archaeology, geography, and history, while
the Babylonian Talmud is more marked by legal and
religious development.

But the reader should not form a wrong impression
of the contents of the Talmud. They are a blending
of the oral law of the Mishna and the notes and com-
ments of the sages. The characteristics of both the
editions are legal and religious, but a multitude of ref-
erences are made in each to things that have no con-
nection with either religion or law. " The Talmud
does, indeed, offer us a perfect picture of the cosmo-
politanism and luxury of those final days of Rome,
such as but few classical or postclassical writings con-
tain. We find mention made of Spanish fish, of
Cretan apples, Bithynian cheese, Egyptian lentils and
beans, Greek and Egyptian pumpkins, Italian wine,
Median beer, Egyptian Zyphus; garments imported
from Pelusium and India, shirts from Cilicia, and
veils from Arabia. To the Arabic, Persian, and In-
dian materials contained, in addition to these, in the
Gemara, a bare allusion may suffice. So much we ven-

HEBREW CRIMINAL LAW 83

ture to predict, that when once archaeological and lin-
guistic science shall turn to this field, they will not
leave it again soon."

Relation of Talmud to Mishna. — The relation of
the Talmud, used in the popular sense, to the Mishna,
raises the question of the relation of the whole to one
of its parts. The varying meanings of Mishna, Ge-
mara, and Talmud very easily confuse the ordinary
reader. If these terms are considered separately in the
order in which they appear in the preceding sentence,
simple mathematical addition will greatly aid in elu-
cidating matters. The Mishna is a vast mass of tradi-
tion or oral law which was finally reduced to writing
about the close of the second century of the Christian
era. The Gemara is the Rabbinical exposition of the
meaning of the Mishna. The Talmud is the sum of
the Mishna plus the Gemara. In other words, the
Talmud is the elaboration or amplification of the
Mishna by manifold commentaries, designated as
the Gemara. It frequently happens that the Talmud
and the Mishna appear in the same sentence as terms
designating entirely different things. This association
in a different sense inevitably breeds confusion, unless
we pause to consider that the Mishna has a separate
existence from the Talmud and a distinct recension of
its own. In this state it is simply a naked code of laws.
But when the Gemara has been added to it the Talmud
is the result, which, in its turn, becomes a distinct en-
tity and may be referred to as such in the same sentence
with the Mishna.

Relation of Talmud to Pentateuch. — As before sug-

84 THE TRIAL OF JESUS

gested, the Pentateuch, or Mosaic Code, was the Writ-
ten Law and the very foundation of ancient Hebrew
jurisprudence. The Talmud, composed of the Mishna,
i. e., Tradition, and the Gemara, i. e., Commentary,
was the Oral Law, connected with, derived from, and
built upon the Written Law. It must be remembered
that the commonwealth of the Jews was a pure theoc-
racy and that all law as well as all religion emanated
directly or indirectly from Jehovah. This was as true
of Talmudic tradition as of Mosaic ordinance. Hillel,
who interpreted tradition, was as much inspired of
God as was Moses when he received the Written Law
on Sinai. Emanuel Deutsch is of the opinion that
from the very beginning of the Mosaic law there must
have existed a number of corollary laws which were
used to interpret and explain the written rules; that,
besides, there were certain enactments of the primitive
Council of the Desert, and certain verdicts issued by
the later " judges within the gates " — all of which en-
tered into the general body of the Oral Law and were
transmitted side by side with the Written Law through
the ages.1 The fourth book of Ezra, as well as other
Apocryphal writings, together with Philo and certain
of the Church Fathers, tells us of great numbers of
books that were given to Moses at the same time that
he received the Pentateuch. These writings are doubt-
less the source of the popular belief among the Jews
that the traditional laws of the Mishna had existed
from time immemorial and were of divine origin.
" Jewish tradition traces the bulk of the oral injunc-

1 Emanuel Deutsch, "The Talmud," p. 27.

HEBREW CRIMINAL LAW 85

tions, through a chain of distinctly named authorities,
to ' Sinai itself.' It mentions in detail how Moses
communicated those minutiae of his legislation, in
which he had been instructed during the mysterious
forty days and nights on the Mount, to the chosen
guides of the people, in such a manner that they
should forever remain engraven on the tablets of their
hearts." x This direct descent of the Oral Law from
the Sacred Mount itself would indicate an independ-
ent character and authority. Nevertheless, Talmudic
interpretation of tradition professed to remain always
subject to the Mosaic Code; to be built upon, and to
derive its highest inspiration from it. But, as a matter
of fact, while claiming theoretically to be subordinate
to it, the Talmud finally superseded and virtually dis-
placed the Pentateuch as a legal and administrative
code. This was the inevitable consequence and effect
of the laws of growth and progress in national exist-
ence. Altered conditions of life, at home and in exile,
necessitated new rules of action in the government of
the Jewish commonwealth. The Mosaic Code was
found inadequate to the ever-changing exigencies of
Hebrew life. As a matter of fact, Moses laid down
only general principles for the guidance of Hebrew
judges. He furnished the body of the law, but a sys-
tem of legal procedure was wholly wanting. The Tal-
mud supplied the deficiency and completed a perfect
whole. While yet in the Wilderness, Moses com-
manded the Israelites to establish courts and appoint
judges for the administration of justice as soon as they

1 Emanuel Deutsch, "The Talmud," p. 27.

86 THE TRIAL OF JESUS

were settled in Palestine.1 This clearly indicates that
the great lawgiver did not intend his ordinances and
injunctions to be final and exclusive. Having fur-
nished a foundation for the scheme, he anticipated
that the piety, judgment, and learning of subsequent
ages would do the rest. His expectations were fulfilled
in the development of the traditions afterwards em-
bodied in the Mishna, which is the principal compo-
nent part of the Talmud.

As before suggested, with the growth in population
and the ever-increasing complications in social, politi-
cal, and religious life, and with the general advance
in Hebrew civilization, Mosaic injunction began to
prove entirely inadequate to the national wants. In
the time intervening between the destruction of the
first and second Temples, a number of Mosaic laws
had become utter anachronisms; others were perfectly
impracticable, and several were no longer even under-
stood. The exigencies of an altered mode of life and
the changed conditions and circumstances of the peo-
ple rendered imperative the enactment of new laws
unknown to the Pentateuch. But the divine origin of
the Hebrew system of law was never for a moment for-
gotten, whatever the change and wherever made. The
Rabbins never formally repealed or abolished any
Mosaic enactment. They simply declared that it had
fallen into desuetude. And, in devising new laws ren-
dered necessary by changed conditions of life they in-
variably invoked some principle or interpretation of
the Written Law.

1 Deut. xvi. 18.

HEBREW CRIMINAL LAW 87

In the declining years of Jewish nationality, many
characteristic laws of the Pentateuch had become ob-
solete. The ordinance which determined the punish-
ment of a stubborn and rebellious son; the enactment
which commanded the destruction of a city given to
idolatry; and, above all, the lex talionis had become
purely matters of legend. On the other hand, many
new laws appear in the Talmud of which no trace
whatever can be discovered in the Pentateuch. " The
Pharisees," says Josephus, " have imposed upon the
people many laws taken from the tradition of the
Fathers, which are not written in the law of Moses." *
The most significant of these is the one providing for
Antecedent Warning in criminal prosecutions, the
meaning and purpose of which will be fully discussed
in another chapter.

Vicissitudes of the Talmud. — An old Latin adage
runs: " Habent sua fata libelli " 2 (Even books are
victims of fate). This saying is peculiarly applicable
to the Talmud, which has had, in a general way, the
same fateful history as the race that created it. Pro-
scription, exile, imprisonment, confiscation, and burn-
ing was its lot throughout the Middle Ages. During
a thousand years, popes and kings vied with each other
in pronouncing edicts and hurling anathemas against
it. During the latter half of the sixteenth century it
was burned not fewer than six different times by royal
or papal decree. Whole wagonloads were consigned
to the flames at a single burning. In 1286, in a letter
to the Archbishop of Canterbury, Honorius IV de-

1 " Ant.," XIII. 10, 6. 2 Horace.

88 THE TRIAL OF JESUS

scribed the Talmud as a " damnable book " (liber
damnabilis), and vehemently urged that nobody in
England be permitted to read it, since " all other evils
flow out of it." * On New Year's day, 1553, numerous
copies of the Talmud were burned at Rome in compli-
ance with a decree of the Inquisition. And, as late as
1757, in Poland, Bishop Dembowski, at the instigation
of the Frankists, convened a public assembly at Kame-
netz-Podolsk, which decreed that all copies of the
Talmud found in the bishopric should be confis-
cated and burned by the hangman.2

Of the two recensions, the Babylonian Talmud bore
the brunt of persecution during all the ages. This re-
sulted from the fact that the Jerusalem Talmud was
little read after the closing of the Jewish academies in
Palestine, while the Babylonian Talmud was the
popular edition of eminent Jewish scholars throughout
the world.

It is needless to say that the treatment accorded the
venerable literary compilation was due to bitter preju-
dice and crass ignorance. This is well illustrated by
the circumstance that when, in 1307, Clement V was
asked to issue a bull against the Talmud, he declined
to do so, until he had learned something about it. To
his amazement and chagrin, he could find no one who
could throw any light upon the subject. Those who
wished it condemned and burned were totally ignorant
of its meaning and contents. The surprise and disgust
of Clement were so great that he resolved to found

1 Emanuel Deutsch, "The Talmud," p. 12.

2 "Jewish Encyc," vol. xii. p. 22.

HEBREW CRIMINAL LAW 89

three chairs in Hebrew, Arabic, and Chaldee, the
three tongues nearest the idiom of the Talmud. He
designated the Universities of Paris, Salamanca, Bo-
logna, and Oxford as places where these languages
should be taught, and expressed the hope that, in time,
one of these universities might be able to produce a
translation of " this mysterious book." 1 It may be
added that these plans of the Pope were never consum-
mated.

The Message and Mission of the Talmud. — To ap-
preciate the message and mission of the Talmud, its
contents must be viewed and contemplated in the light
of both literature and history. As a literary produc-
tion it is a masterpiece — strange, weird, and unique —
but a masterpiece, nevertheless. It is a sort of spiritual
and intellectual cosmos in which the brain growth and
soul burst of a great race found expression during a
thousand years. As an encyclopedia of faith and schol-
arship it reveals the noblest thoughts and highest as-
pirations of a divinely commissioned race. Whatever
the master spirits of Judaism in Palestine and Babylon
esteemed worthy of thought and devotion was devoted
to its pages. It thus became a great twin messenger,
with the Bible, of Hebrew civilization to all the races
of mankind and to all the centuries yet to come. To
Hebrews it is still the great storehouse of information
touching the legal, political, and religious traditions
of their fathers in many lands and ages. To the Bibli-
cal critic of any faith it is an invaluable help to
Bible exegesis. And to all the world who care for

1 Emanuel Deutsch, "Talmud," p. 12.

9o THE TRIAL OF JESUS

the sacred and the solemn it is a priceless literary
treasure.

As an historical factor the Talmud has only re-
motely affected the great currents of Gentile history.
But to Judaism it has been the cementing bond in
every time of persecution and threatened dissolution.
It was carried from Babylon to Egypt, northern
Africa, Spain, Italy, France, Germany, and Poland.
And when threatened with national and race destruc-
tion3 the children of Abraham in every land bowed
themselves above its sacred pages and caught there-
from inspiration to renewed life and higher effort.
The Hebrews of every age have held the Talmud in
extravagant reverence as the greatest sacred heirloom
of their race. Their supreme affection for it has
placed it above even the Bible. It is an adage with
them that, " The Bible is salt, the Mischna pepper, the
Gemara balmy spice," and Rabbi Solomon ben Joseph
sings:

" The Kabbala and Talmud hoar
Than all the Prophets prize I more;
For water is all Bible lore,
But Mischna is pure wine."

More than any other human agency has the Talmud
been instrumental in creating that strangest of all po-
litical phenomena — a nation without a country, a race
without a fatherland.

CHAPTER II

HEBREW CRIMINAL LAW — CRIMES AND PUNISHMENTS

APITAL crimes, under Hebrew
law, were classified by Maimon-
ides according to their respec-
tive penalties. His arrange-
ment will be followed in this
chapter.1

Hebrew jurisprudence pro-
vided four methods of capital
punishment: (i) Beheading;
(2) Strangling; (3) Burning; (4) Stoning.

Crucifixion was unknown to Hebrew law. This
cruel and loathsome form of punishment will be fully-
discussed in the second volume of this work.

Thirty-six capital crimes are mentioned by the Pen-
tateuch and the Talmud.

Beheading was the punishment for only two crimes:

(1) Murder.

(2) Communal apostasy from Judaism to idolatry.
Strangling was prescribed for six offenses:

(1) Adultery.

(2) Kidnaping.

(3) False prophecy.

(4) Bruising a parent.

1 Maimon., "H. Sanh." xv. 10-13.

91

92 THE TRIAL OF JESUS

(5) Prophesying in the name of heathen deities.

(6) Maladministration (the "Rebellious Elder").
Burning was the death penalty for ten forms of

incest — criminal commerce:

(1) With one's own daughter.

(2) With one's own son's daughter.

(3) With one's own daughter's daughter.

(4) With one's own stepdaughter.

(5) With one's own stepson's daughter.

(6) With one's own stepdaughter's daughter.

(7) With one's own mother-in-law.

(8) With one's own mother-in-law's mother.

(9) With one's own father-in-law's mother.
(10) With a priest's daughter.1

Stoning was the penalty for eighteen capital
offenses :

(1) Magic.

(2) Idolatry.

(3) Blasphemy.

(4) Pythonism.

(5) Pederasty.

(6) Necromancy.

(7) Cursing a parent.

(8) Violating the Sabbath.

(9) Bestiality, practiced by a man.

(10) Bestiality, practiced by a woman.

(11) Sacrificing one's own children to Moloch.

(12) Instigating individuals to embrace idolatry.

(13) Instigating communities to embrace idolatry.

1 Mendelsohn, "Criminal Jurisprudence of the Ancient Hebrews," pp.
45-50.

HEBREW CRIMINAL LAW 93

(14) Criminal conversation with one's own mother.

(15) Criminal conversation with a betrothed virgin.

(16) Criminal conversation with one's own step-
mother.

(17) Criminal conversation with one's own daugh-
ter-in-law.

(18) Violation of filial duty (making the "Prodi-
gal Son").1

The crime of false swearing requires special notice.
This offense could not be classified under any of the
above subdivisions because of its peculiar nature.
The Mosaic Code ordains in Deut. xix. 16-21 : " If a
false witness rise up against any man to testify against
him that which is wrong . . . and, behold, if the
witness be a false witness, and hath testified falsely
against his brother; then shall ye do unto him, as he
had thought to have done unto his brother . . . and
thine eye shall not pity; but life shall go for life, eye
for eye, tooth for tooth, hand for hand, foot for foot."
Talmudic construction of this law awarded the same
kind of death to him who had sworn falsely against his
brother that would have been meted out to the alleged
criminal, if the testimony of the false swearer had been
true.

Imprisonment, as a method of punishment, was un-
known to the Mosaic Code. Leviticus xxiv. 12 and
Numbers xv. 34 seem to indicate the contrary; but the
imprisonment therein mentioned undoubtedly refers
to the mere detention of the prisoner until sentence
could be pronounced against him. Imprisonment as

1 Mendelsohn, "Criminal Jurisprudence of the Ancient Hebrews," pp. 45-50.

94 THE TRIAL OF JESUS

a form of punishment was a creation of the Talmudists
who legalized its application among the Hebrews.
According to Mendelsohn, five different classes of
offenders were punished by imprisonment:

(i) Homicides; whose crime could not be legally
punished with death, because some condition or other,
necessary to produce a legal conviction, had not been
complied with.

(2) Instigators to or procurers of murder; such, for
instance, as had the deed committed by the hands of a
hireling.

(3) Accessories to loss of life, as, for instance, when
several persons had clubbed one to death, and the
court could not determine the one who gave the death
blow.

(4) Persons who having been twice duly con-
demned to and punished with flagellation for as many
transgressions of one and the same negative precept,
committed it a third time.

(5) Incorrigible offenders, who, on each of three
occasions, had failed to acknowledge as many warn-
ings antecedent to the commission of one and the same
crime, the original penalty for which was excision.1

Flagellation is the only corporal punishment men-
tioned by the Pentateuch. The number of stripes ad-
ministered were not to exceed forty and were to be im-
posed in the presence of the judges.2 Wherever the
Mosaic Code forbade an act, or, in the language of the
sages, said " Thou shalt not," and prescribed no other
punishment or alternative, a Court of Three might im-

1 Mendelsohn, p. 43. 2 Mendelsohn, pp. 39, 40.

HEBREW CRIMINAL LAW 95

pose stripes as the penalty for wrongdoing. Mendel-
sohn gives the following classification:

Flagellation is the penalty of three classes of of-
fenses:

(1) The violation of a negative precept, deadly in
the sight of heaven.

(2) The violation of any negative precept, when
accomplished by means of a positive act.

(3) The violation of any one of the prohibitive
ordinances punishable, according to the Mosaic law,
with excision, to which, however, no capital punish-
ment at the instance of a human tribunal is attached.1

The Mishna enumerates fifty offenses punishable by
stripes, but this enumeration is evidently incomplete.
Maimonides gives a full classification of all the of-
fenses punishable by flagellation, the number of which
he estimates to be two hundred and seven. The last
three in his list are cases in which the king takes too
many wives, accumulates too much silver or gold, or
collects too many horses.2

Slavery was the penalty for theft under ancient He-
brew law. This is the only case where the Mosaic law
imposed slavery upon the culprit as a punishment for
his crime; and a loss of liberty followed only where
the thief was unable to make the prescribed restitution.
Exodus xxii. 1-3 says:

If a man shall steal an ox, or a sheep, and kill it, or sell
it, he shall restore five oxen for an ox, and four sheep for a
sheep ... if he have nothing, then he shall be sold for his
theft.

1 Mendelsohn, pp. 39, 40. 2 Maimonides ("Yad"), "Sanhedrin" xix.

96 THE TRIAL OF JESUS

Penal servitude, or slavery, was imposed only on
men, never on women. Slavery, as a penalty for theft,
was limited to a period of six years in obedience to the
Mosaic ordinance laid down in Exodus xxi. 2.

If thou buy a Hebrew servant, six years he shall serve:
and in the seventh, he shall go free for nothing.

It should be remarked, in this connection, that sla-
very, as a punishment for crime, carried with it none
of the odium and hardship usually borne by the slave.
The humanity of Hebrew law provided that the cul-
prit, thief though he was, should not be degraded or
humiliated. He could be compelled to do work for
his master, such as he had been accustomed to do while
free, but was relieved by the law from all degrading
employment, such as " attending the master to the
bath, fastening or unfastening his sandals, washing his
feet, or any other labor usually performed by the regu-
lar slave." Hebrew law required such kindly treat-
ment of the convict thief by his master that this maxim
was the result: " He who buys a Hebrew slave, buys
himself a master."

Internment in a city of refuge was the punishment
for accidental homicide. Mischance or misadventure,
resulting in the slaying of a fellow-man, was not,
properly speaking, a crime; nor was exile in a city of
refuge considered by the Talmudists a form of punish-
ment. But they are so classified by most writers on
Hebrew criminal law. Among nearly all ancient na-
tions there was a place of refuge for the unfortunate
and downtrodden of the earth; debtors, slaves, crimi-

HEBREW CRIMINAL LAW 97

nals, and political offenders; some sacred spot — an
altar, a grave, or a sanctuary dedicated and devoted to
some divinity who threw about the hallowed place
divine protection and inviolability. Such was at Ath-
ens the Temple of Theseus, the sanctuary of slaves.
It will be remembered that the orator Demosthenes
took refuge in the Temple of Poseidon as a sanctuary,
when pursued by emissaries of Antipater and the
Macedonians.1 Among the ancient Hebrews, there
were six cities of refuge; three on either side of the
Jordan. They were so located as to be nearly opposite
each other. Bezer in Reuben was opposite Hebron in
Judah; Schechem in Ephraim was opposite to Ramoth
in Gad; and Golan in Manasseh was opposite to
Kedesh in Naphtali.2 Highways in excellent condi-
tion led from one to the other. Signposts were placed
at regular intervals to indicate the way to the nearest
city of refuge. These cities were designated by the
law as asylums or sanctuaries for the protection of in-
nocent slayers of their fellow-men from the " avenger
of blood." Among nearly all primitive peoples of
crude political development, such as the early Ger-
mans, the ancient Greeks and Slavs, certain North
American savage tribes and the modern Arabs, Corsi-
cans and Sicilians, the right of private vengeance was
and is taught and tolerated. Upon the " next of kin,"
the " avenger of blood," devolved the duty of hunting
down and slaying the guilty man. Cities of refuge
were provided by Mosaic law for such an emergency

1 Dr. Smith's "Hist, of Greece," p. 557.

2 "Jewish Encyc," vol. ii. p. 257.

98 THE TRIAL OF JESUS

among the Hebrews. This provision of the Mosaic
Code doubtless sprang from a personal experience of
its founder. Bible students will remember that Moses
slew an Egyptian and was compelled to flee in conse-
quence.1 Remembering his dire distress on this occa-
sion, the great lawgiver was naturally disposed to
provide sanctuaries for others similarly distressed.
But the popular notion of the rights of sanctuary
under the Mosaic law is far from right. That a com-
mon murderer could, by precipitate flight, reach one
of the designated places and be safe from his pursuers
and the vengeance of the law, is thought by many.
The observation of Benny on this point is apt and
lucid:

Internment in one of the cities of refuge was not the
scampering process depicted in the popular engraving: a man
in the last stage of exhaustion at the gate of an Eastern town;
his pursuers close upon him, arrows fixed and bows drawn;
his arms stretched imploringly towards a fair Jewish damsel,
with a pitcher gracefully poised upon her head. This may
be extremely picturesque, but it is miserably unlike the cus-
tom in vogue among the later Hebrews. Internment in a
city of refuge was a sober and judicial proceeding. He who
claimed the privilege was tried before the Sanhedrin like any
ordinary criminal. He was required to undergo examina-
tion; to confront witnesses, to produce evidence, precisely as
in the case of other offenders. He had to prove that the
homicide was purely accidental; that he had borne no malice
against his neighbor; that he had not lain in wait for him
to slay him. Only when the judges were convinced that the
crime was homicide by misadventure was the culprit ad-
judged to be interned in one of the sheltering cities. There
was no scurrying in the matter; no abrupt flight; no hot pur-

1 Ex. ii. 1 2-1 6.

HEBREW CRIMINAL LAW 99

suit, and no appeal for shelter. As soon as judgment was
pronounced the criminal was conducted to one of the ap-
pointed places. He was accompanied the whole distance
by two talmide-chachamin-disciples of the Rabbins. The
avengers of the blood dared not interfere with the offender on
the way. To slay him would have been murder, punishable
with death.

Execution of Capital Sentences. (1) Beheading. —
The Hebrews considered beheading the most awful
and ignominious of all forms of punishment. It was
the penalty for deliberate murder and for communal
apostasy from Judaism to idolatry, the most heinous
offenses against the Hebrew theocracy. Beheading
was accomplished by fastening the culprit securely to
a post and then severing his head from his body by a
stroke with a sword.1

(2) Strangling. — The capital punishment of stran-
gling was effected by burying the culprit to his waist
in soft mud, and then tightening a cord wrapped in a
soft cloth around his neck, until suffocation ensued.2

(3) Burning. — The execution of criminals by burn-
ing was not done by consuming the living person with
fire, as was practiced in the case of heretics by prel-
ates in the Middle Ages and in the case of white cap-
tives by savages in colonial days in America. Indeed,
the term " burning " seems to be a misnomer in this
connection, for the culprit was not really burned to
death. He was simply suffocated by strangling. As
in the case of strangling, the condemned man was
placed in a pit dug in the ground. Soft dirt was then

1 "Sanh." 52b; Maim., "H. Sanh." xv. 4. 2 "H. Sanh." xv. 5.

ioo THE TRIAL OF JESUS

thrown in and battered down, until nothing but his
head and chest protruded. A cord, wrapped in a soft
cloth, was then passed once around his neck. Two
strong men came forward, grasped each an end, and
drew the cord so hard that suffocation immediately
followed. As the lower jaw dropped from insensi-
bility and relaxation, a lighted wick was quickly
thrown into his mouth. This constituted the burning.1
There is authority for the statement that instead of a
lighted wick, molten lead was poured down the cul-
prit's throat.2

(4) Stoning. — Death by stoning was accomplished
in the following manner: The culprit was taken to
some lofty hill or eminence, made to undress com-
pletely, if a man, and was then precipitated violently
to the ground beneath. The fall usually broke the
neck or dislocated the spinal cord. If death did not
follow instantaneously the witnesses hurled upon his
prostrate body heavy stones until he was dead. If the
first stone, so heavy as to require two persons to carry
it, did not produce death, then bystanders threw stones
upon him until death ensued. Here, again, " stoning "
to death is not strictly accurate. Death usually re-
sulted from the fall of the man from the platform,
scaffold, hill, or other elevation from which he was
hurled. It was really a process of neck-breaking, in-
stead of stoning, as burning was a process of suffoca-
tion, instead of consuming with fire.

These four methods of execution — beheading, stran-

1 Benny, "Crim. Code of the Jews," p. 90.

2 Mendelsohn, p. 159.

HEBREW CRIMINAL LAW 101

gling, burning, and stoning — were the only forms of
capital punishment known to the ancient Hebrews.
Crucifixion was never practiced by them; but a post-
humous indignity, resembling crucifixion, was em-
ployed as an insult to the criminal, in the crimes of
idolatry and blasphemy. In addition to being stoned
to death, as a punishment for either of these crimes, the
dead body of the culprit was then hanged in public
view as a means of rendering the offense more hideous
and the death more ignominious. This hanging to a
tree was in obedience to a Mosaic ordinance contained
in Deut. xxi. 22. The corpse was not permitted, how-
ever, to remain hanging during the night.

The burial of the dead body of the criminal imme-
diately followed execution, but interment could not
take place in the family burial ground. Near each
town in ancient Palestine were two cemeteries ; in one
of them were buried those criminals who had been ex-
ecuted by beheading or strangling; in the other were
interred those who had been put to death by stoning
or burning. The bodies were required to remain, thus
buried, until the flesh had completely decayed and
fallen from the bone. The relatives were then per-
mitted to dig up the skeletons and place them in the
family sepulchers.

CHAPTER III

HEBREW CRIMINAL LAW — COURTS AND JUDGES

HE Hebrew tribunals were
three in kind: the Great San-
hedrin; the Minor Sanhedrin;
and the Lower Tribunal, or the
Court of Three.

The Great Sanhedrin, or
Grand Council, was the high
court of justice and the supreme
tribunal of the Jews. It sat at
Jerusalem. It numbered seventy-one members. Its
powers were legislative, executive, and judicial. It
exercised all the functions of education, of govern-
ment, and of religion. It was the national parliament
of the Hebrew Theocracy, the human administrator
of the divine will. It was the most august tribunal
that ever interpreted or administered religion to man.
The Name. — The word " Sanhedrin " is derived
from the Greek {avvihpiov) and denotes a legisla-
tive assembly or an ecclesiastical council deliberating
in a sitting posture. It suggests also the gravity and
solemnity of an Oriental synod, transacting business of
great importance. The etymology of the word indi-
cates that it was first used in the later years of Jewish
nationality. Several other names are also found in

102

HEBREW CRIMINAL LAW 103

history to designate the Great Sanhedrin of the Jews.
The Council of Ancients is a familiar designation of
early Jewish writers. It is called Gerusia, or Senate,
in the second book of Maccabees.1 Concilium, or
Grand Council, is the name found in the Vulgate.2
The Talmud designates it sometimes as the Tribunal
of the Maccabees, but usually terms it Sanhedrin, the
name most frequently employed in the Greek text of
the Gospels, in the writings of the Rabbins, and in the
works of Josephus.3

Origin of the Great Sanhedrin. — The historians are
at loggerheads as to the origin of the Great Sanhedrin.
Many contend that it was established in the Wilder-
ness by Moses, who acted under divine commission
recorded in Numbers xi. 16, 17: "Gather unto me
seventy of the elders of Israel, whom thou knowest to
be the elders of the people, and officers of them; and
bring them unto the tabernacle of the congregation,
that they may stand with thee; and I will take of the
Spirit that is upon thee and will put it upon them; and
they shall bear the burden of the people with thee, that
thou bearest it not alone." Over the seventy elders,
Moses is said to have presided, making seventy-one,
the historic number of the Great Sanhedrin. Several
Christian historians, among them Grotius and Selden,
have entertained this view; others equally celebrated
have maintained contrary opinions. These latter con-
tend that the council of seventy ordained by Moses ex-

1 Chap. I. 10; X. i, 2. 2 Matt. xxvi. 59.

3 "Ant.," XIV. Chap. V. 4; "Wars of the Jews," I. VIII. 5; "Tal-
mud," "Sanhedrin."

104 THE TRIAL OF JESUS

isted only a short time, having been established to assist
the great lawgiver in the administration of justice;
and that, upon the entrance of the children of Israel
into the Promised Land, it disappeared altogether.
The writers who hold this view contend that if the
great assembly organized in the Wilderness was per-
petuated side by side with the royal power, through-
out the ages, as the Rabbis maintained, some mention
of this fact would, in reason, have been made by the
Bible, Josephus, or Philo.

The pages of Jewish history disclose the greatest
diversity of opinion as to the origin of the Great San-
hedrin. The Maccabean era is thought by some to be
the time of its first appearance. Others contend that
the reign of John Hyrcanus, and still others that the
days of Judas Maccabeus, marked its birth and begin-
ning. Raphall, having studied with care its origin
and progress, wrote: "We have thus traced the exist-
ence of a council of Zekenim or Elders founded by
Moses, existing in the days of Ezekiel, restored under
the name of Sabay Yehoudai, or Elders of the Jews,
under Persian dominion; Gerusia, under the suprem-
acy of the Greeks; and Sanhedrin under the Asmo-
nean kings and under the Romans." *

Brushing aside mere theory and speculation, one
historical fact is clear and uncontradicted, that the first
Sanhedrin Council clothed with the general judicial
and religious attributes of the Great Sanhedrin of the
times of Jesus, was established at Jerusalem between
170 and 106 B.C.

1 "Post Bib!. Hist.," vol. i. p. 106.

HEBREW CRIMINAL LAW 105

Organization of the Great Sanhedrin. — The sev-
enty-one members composing the Great Sanhedrin
were divided into three chambers:

The chamber of priests;
The chamber of scribes;
The chamber of elders.

The first of these orders represented the religious or
sacerdotal; the second, the literary or legal; the third,
the patriarchal, the democratic or popular element of
the Hebrew population. Thus the principal Estates
of the Commonwealth of Israel were present, by rep-
resentation, in the great court and parliament of the
nation.

Matthew refers to these three orders and identifies
the tribunal that passed judgment upon Christ: "From
that time forth, began Jesus to shew unto his disci-
ples, how that he must go unto Jerusalem, and suffer
many things of the elders and chief priests and
scribes, and be killed and raised again the third
day." *

Theoretically, under the Hebrew constitution, the
" seventy-one " of the three chambers were to be
equally divided:

Twenty-three in the chamber of priests,
Twenty-three in the chamber of scribes,
Twenty-three in the chamber of elders.

A total of sixty-nine, together with the two presid-
ing officers, would constitute the requisite number,
seventy-one. But, practically, this arrangement was
rarely ever observed. The theocratic structure of the

1 Matt. xvi. 21.

106 THE TRIAL OF JESUS

government of Israel and the pious regard of the peo-
ple for the guardians of the Temple, gave the priestly
element a predominating influence from time to time.
The scribes, too, were a most vigorous and aggressive
sect and frequently encroached upon the rights and
privileges of the other orders. Abarbanel, one of the
greatest of the Hebrew writers, has offered this expla-
nation: "The priests and scribes naturally predomi-
nated in the Sanhedrin because, not having like the
other Israelites received lands to cultivate and im-
prove, they had abundant time to consecrate to the
study of law and justice, and thus became better quali-
fied to act as judges." *

Qualifications of Members of the Great Sanhedrin.
— The following qualifications were requisite to en-
title an applicant to membership in the Great San-
hedrin:

(i) He must have been a Hebrew and a lineal de-
scendant of Hebrew parents.2

(2) He must have been " learned in the law " ; both
written and unwritten.

His legal attainment must have included an inti-
mate acquaintance with all the enactments of the Mo-
saic Code, with traditional practices, with the precepts
and precedents of the colleges, with the adjudications
of former courts and the opinions of former judges.
He must have been familiar not only with the laws
then actively in force, but also with those that had be-
come obsolete.3

1 "Commentary on the Law," vol. ccclxvi. recto.

2 "Sanhedrin " 32. 3 Benny.

HEBREW CRIMINAL LAW 107

(3) He must have had judicial experience; that is,
he must have already filled three offices of gradually
increasing dignity, beginning with one of the local
courts, and passing successively through two magistra-
cies at Jerusalem.1

(4) He must have been thoroughly proficient in
scientific knowledge.

The ancient Sanhedrists were required to be es-
pecially well grounded in astronomy and medicine.
They were also expected to be familiar with the arts
of the necromancer.2 We are also led to believe from
the revelations of the Talmud that the judges of Israel
were well versed in the principles of physiology and
chemistry, as far as these sciences were developed and
understood in those days. History records that Rabbi
Ismael and his disciples once engaged in experimental
dissection in order to learn the anatomy of the human
frame. On one occasion a deceitful witness tried to
impose upon a Hebrew court by representing sper-
matic fluid to be the albumen of an egg. Baba bar
Boutah was enabled, from his knowledge of the ele-
ments of chemistry, to demonstrate the fact of fraud
in the testimony of the witness. Eighty disciples of
the famous Academy of Hillel are said to have been
acquainted with every branch of science known in
those days.3

(5) He must have been an accomplished linguist;
that is, he must have been thoroughly familiar with
the languages of the surrounding nations.

Interpreters were not allowed in Hebrew courts. A

1 Jose b. Halafta, I. c. 2 R. Johanan, "Sanhedrin" 19a. 3 Benny.

108 THE TRIAL OF JESUS

knowledge of several languages was, therefore, indis-
pensable to the candidate who sought membership in
the Great Sanhedrin. " In the case of a foreigner
being called as a witness before a tribunal, it was abso-
lutely necessary that two members should understand
the language in which the stranger's evidence was
given; that two others should speak to him; while
another was required to be both able to understand and
to converse with the witness. A majority of three
judges could always be obtained on any doubtful point
in the interpretation of the testimony submitted to the
court. At Bither there were three Rabbins acquainted
with every language then known; while at Jabneh
there were said to be four similarly endowed with the
gift of ' all the tongues.' " *

(6) He must have been modest, popular, of good
appearance, and free from haughtiness.2

The Hebrew mind conceived modesty to be the
natural result of that learning, dignity, and piety
which every judge was supposed to possess. The quali-
fication of " popularity " did not convey the notion of
electioneering hobnobbing and familiarity. It meant
simply that the reputation of the applicant for judicial
honors was so far above reproach that his countrymen
could and would willingly commit all their interests of
life, liberty, and property to his keeping. By " good
appearance " was meant that freedom from physical
blemishes and defects, and that possession of physical
endowments that would inspire respect and reverence
in the beholder. The haughty judge was supposed to

1 Benny. 2 "Sanhedrin" 17a; "Menahoth" 65a.

HEBREW CRIMINAL LAW 109

be lacking in the elements of piety and humility which
qualified him for communion with God. Haughti-
ness, therefore, disqualified for admission to the Great
Sanhedrin.

(7) He must have been pious, strong, and coura-
geous}

Piety was the preeminent qualification of a judge of
Israel. Impiety was the negation of everything Israel-
itish. Strength and courage are attributes that all
judges in all ages and among all races have been sup-
posed to possess in order to be just and righteous in
their judgments.

Disqualifications. — Disqualifications of applicants
for membership in the Great Sanhedrin are not less
interesting than qualifications. They are in the main
mere negatives of affirmatives which have already
been given, and would seem, therefore, to be super-
fluous. But they are strongly accentuated in Hebrew
law, and are therefore repeated here.

( 1 ) A man was disqualified to act as judge who had
not, or had never had, any regular trade, occupation,
or profession by which he gained his livelihood.

The reason for this disqualification was based
upon a stringent maxim of the Rabbins : " He who
neglects to teach his son a trade, is as though he
taught him to steal! " A man who did not work and
had never labored in the sweat of his brow for an
honest livelihood, was not qualified, reasoned the He-
brew people, to give proper consideration or ex-
tend due sympathy to the cause of litigants whose

1 Sifre, Num. 92 (ed. Friedmann, p. 25b).

no THE TRIAL OF JESUS

differences arose out of the struggles of everyday
life.

(2) In trials where the death penalty might be in-
flicted, an aged man, a person who had never had any
children of his own, and a bastard were disqualified to
act as judge.

A person of advanced years was disqualified because
according to the Rabbins old age is frequently marked
by bad temper; and " because his years and infirmities
were likely to render him harsh, perhaps obstinate and
unyielding." On the other hand, youth was also a
disqualification to sit in the Sanhedrin. According to
the Rabbis, twenty-five years was the age which en-
titled a person to be called a Man; 1 but no one was
eligible to a seat in the Sanhedrin until he had reached
the age of forty years.2 The ancient Hebrews re-
garded that period as the beginning of discretion and
understanding.

A person without children was not supposed to pos-
sess those tender paternal feelings " which should
warm him on behalf of the son of Israel who was in
peril of his life."

The stain of birth and the degradation in character
of a bastard were wholly inconsistent with the high
ideals of the qualifications of a Hebrew judge.

(3) Gamblers, dice players, bettors on pigeon
matches, usurers, and slave dealers were disqualified to
act as judges.

The Hebrews regarded gambling, dice playing, bet-
ting on pigeon matches, and other such practices as

1 Yalkut, "Exodus," Sec. 167. 2 Sotah 22b.

HEBREW CRIMINAL LAW in

forms of thievery; and thieves were not eligible to sit
as judges in their courts. No man who was in the
habit of lending money in an usurious manner could
be a judge. It was immaterial whether the money was
lent to a countryman or a stranger. Slave dealers were
disqualified to act as judges because they were re-
garded as inhuman and unsympathetic.

(4) No man was qualified to be a judge who had
dealt in the fruits of the seventh year.

Such a person was deemed lacking in conscience and
unfitted to perform judicial functions.

(5) No man who was concerned or interested in a
matter to be adjudicated was qualified to sit in judg-
ment thereon.

This is a universal disqualification of judges under
all enlightened systems of justice. The weakness and
selfishness of human nature are such that few men are
qualified to judge impartially where their own in-
terests are involved.

(6) All relatives of the accused man, of whatever
degree of consanguinity, were disqualified from sitting
in judgment on his case.

This is only a variation of the disqualification of
interest.

(7) No person who would be benefited, as heir, or
otherwise, by the death or condemnation of an accused
man, was qualified to be his judge.

This, too, was a variation of the disqualification of
interest.

(8) The king could not be a member of the San-
he dr in.

ii2 THE TRIAL OF JESUS

Royalty disqualified from holding the place of
judge because of the high station of the king and be-
cause his exercising judicial functions might hamper
the administration of justice.

And, finally, in closing the enumeration of disquali-
fications, it may be added that an election to a seat ob-
tained by fraud or any unfair means was null and void.
No respect was shown for the piety or learning of such
a judge; his judicial mantle was spat upon with scorn,
and his fellow judges fled from him as from a plague
or pest. Hebrew contempt for such a judge was ex-
pressed in the maxim: "The robe of the unfairly
elected judge is to be respected not more than the
blanket of an ass."

Officers of the Great Sanhedrin. — Two presiding
officers directed the proceedings of the Great Sanhe-
drin. One of these, styled prince (nasi), was the chief
and the president of the court. The other, known as
the father of the Tribunal (ab-beth-din), was the vice-
president.

There has been much discussion among the histo-
rians as to the particular chamber from which the
president was chosen. Some have contended that the
presidency of the Sanhedrin belonged by right to the
high priest. But the facts of history do not sustain
this contention. Aaron was high priest at the time
when Moses was president of the first Sanhedrin in the
Wilderness; and, besides, the list of presidents pre-
served by the Talmud reveals the names of many who
did not belong to the priesthood. Maimonides has
made the following very apt observation on the sub-

HEBREW CRIMINAL LAW 113

ject: "Whoever surpassed his colleagues in wisdom
was made by them chief of the Sanhedrin." *

According to most Jewish writers, there were two
scribes or secretaries of the Sanhedrin. But several
others contend that there were three. Benny says :
"Three scribes were present; one was seated on the
right, one on the left, the third in the center of the hall.
The first recorded the names of the judges who voted
for the acquittal of the accused, and the arguments
upon which the acquittal was grounded. The second
noted the names of such as decided to condemn the
prisoner and the reasons upon which the conviction
was based. The third kept an account of both the pre-
ceding so as to be able at any time to supply omissions
or check inaccuracies in the memoranda of his brother
reporters." 2

In addition to these officers, there were still others
who executed sentences and attended to all the police
work of legal procedure. They were called shoterim.3

There was no such officer as a public prosecutor or
State's attorney known to the laws of the ancient He-
brews. The witnesses to the crime were the only
prosecutors recognized by Hebrew criminal jurispru-
dence; and in capital cases they were the legal execu-
tioners as well.

There was also no such body as the modern Grand
Jury known to ancient Hebrew criminal law. And no
similar body or committee of the Sanhedrin per-

1 "Const, of the Sanhedrin," Chap. I.

2 Benny, "The Criminal Code of the Jews," p. 71.

3 Saalschutz, "Das Mosaische Recht," p. 58; Deut. xx. 5, 6.

ii4 THE TRIAL OF JESUS

formed the accusatory functions of the modern Grand
Jury. The witnesses were the only accusers, and their
testimony was both the indictment and the evidence.
Until they testified, the man suspected was deemed not
only innocent but unaccused.

The profession of the law, in the modern sense of
the term, was no part of the judicial system of the an-
cient Hebrews. There were no advocates as we know
them. There were, indeed, men learned in the law —
Pharisees and Sadducees — who knew all the law.
There were doctors of the law: men whom Jesus con-
founded when a youth in the Temple at the age of
twelve.1 But there were no lawyers in the modern
sense: professional characters who accept fees and
prosecute cases. The judges and disciples performed
all the duties of the modern attorney and counselor-at-
law. The prophets were the sole orators of Hebrew
life, but they were never allowed to appear as defend-
ants of accused persons. Indeed, they themselves
were at times compelled to play the role of defendants.
Jeremiah is an illustrious example.2 Both Keim 3 and
Geikie 4 speak of a Baal Rib, a counsel appointed to
see that everything possible was done to secure the
rights of an accused person at a Hebrew criminal trial.
But these statements are not in accord with standard
works on ancient Hebrew jurisprudence. Indeed,
Friedlieb emphatically denies that there was any such
person as a Baal Rib or Dominus Litis among the an-

1 Luke ii. 46-51. 2 Jer. xxxvii., xxxviii.

3 "Jesus of Nazara," vol. vi. p. 45.

4 "The Life and Words of Christ," vol. ii. p. 517.

HEBREW CRIMINAL LAW 115

cient Hebrews.1 It seems that in the closing years of
Jewish nationality, specially retained advocates were
known, for St. Luke tells us that the Jews employed
Tertullus, a certain orator, to prosecute St. Paul.2
But this was certainly an exceptional case. It is his-
torically certain that in the early ages of the Jewish
Commonwealth litigants pleaded their own causes.
This we learn from the case of the two women who
appeared before King Solomon, and laid before him
their respective claims to a child.3

Compensation of Officers. — The judges of Israel
were originally not paid anything for their services.
The honor of the office itself was considered sufficient
emolument for labors performed. Indeed, the office
of teacher and judge in Israel was so highly prized
that the struggles and sacrifices of a lifetime were not
considered too great to pay for a place in the Great
Sanhedrin. Such high station was regarded as a sa-
cred sphere into which the idea of material gain
should not enter. The regular court days were, there-
fore, spent by the judge on the bench, without any ex-
pectation of reward for his services. The other days
of the week he spent in earning a livelihood. But in
later years of the national life a change seems to have
taken place. The ancient rule was so far modified that
when the services of the judge were required on days
when he was engaged in his private pursuits, custom
and the law gave him the right to claim a substitute
during the time he was occupied on the bench; or, in
default of a substitute, to claim remuneration for the

1 "Archaeol." 87. 2 Acts xxiv. 1, 2. 3I Kings iii. 16-28.

n6 THE TRIAL OF JESUS

time which he had lost. Another modification was
that if his legal duties required his entire time, the
judge in Israel was entitled to support from the com-
munal treasury, and was even permitted to accept fees
from litigants. This practice was discouraged, how-
ever, by the Rabbis, who looked with disfavor upon
the appointment of judges who were not entirely able
to support themselves.

The secretaries and other officers of subordinate
dignity were paid for their services.1

Sessions of the Courts. — In the early days of the He-
brew Commonwealth the laws provided for no regular
court days. The Sanhedrin convened as occasion re-
quired, to transact such business and dispose of such
cases as came before it. But this practice was often-
times found to be expensive and annoying to litigants
who came into Jerusalem from the country and found
no courts in session. To accommodate the country
folk, the farmers, and shepherds, Ezra and his coad-
jutors of the Great Assembly designated Mondays and
Thursdays as regular court days. This enactment
was not prohibitive, however. Court might be held
on any day of the week that necessity required. The
reason assigned by the Rabbins for the selection of
Mondays and Thursdays as court days was that on
those days people from the country usually congre-
gated in populous places, in their houses of worship,
to hear the law read and interpreted. While in attend-
ance upon these sacred services, it was thought that

1 Mendelsohn, "Criminal Jurisprudence of the Ancient Hebrews," pp.
102, 103.

HEBREW: CRIMINAL LAW 117

the time was both convenient and propitious for the
settlement of their legal difficulties.1

The authorities are divided as to the exact official
hours of the day for holding court. " The Sanhedrin
sat from the close of the morning sacrifice to the time
of the evening sacrifice," is the language of the Jeru-
salem Talmud.2 Mendelsohn says: "The official
hours for holding court were between the morning
service and noon; but a suit entered upon during the
legal hours could be carried on until evening, and
civil cases could be continued even after nightfall." 3
But in no case of a criminal nature could the court
continue its session during the night.4

The Minor Sanhedrins in the provinces, as well as
the local Courts of Three, usually held their sessions
in the most public place, that is, at the city gate. The
two Minor Sanhedrins of Jerusalem held their sessions
at the entrance to the Temple-mound and to the wom-
an's department respectively. The Great Sanhedrin
convened in an apartment of the national temple at
Jerusalem, known as the Lishkath haggazith. This
apartment was the celebrated " Hall of Hewn
Stones." 5

Recruitments. — The young Hebrew disciple who
possessed the necessary mental, spiritual, and personal
qualifications for judicial honors was styled Haber,
which means associate, fellow.6 Such a disciple was
first solemnly ordained and received the title of Zaken

1 Mendelsohn, pp. 96-98. 4 Mishna, "Sanhedrin," Chap. IV. I.

2 "Sanhedrin," Chap. I. fol. 19. 5 Mendelsohn, p. 98.

3 Mendelsohn, p. 97. 6" Sanhedrin " 8b, 41a, el al.

n8 THE TRIAL OF JESUS

(elder) or Rabbi. This title rendered him eligible to
membership in the different courts. But that he might
acquire necessary experience for membership in the
Great Sanhedrin and become a sage worthy of Israel,
he was required to begin at the lowest rung of the judi-
cial ladder and work gradually to the top. He was
first appointed by the Great Sanhedrin to a place in
one of the local courts, consisting of three members;
he then served as a member of one of the provincial
Sanhedrins; was then promoted to the first, and after-
wards to the second Minor Sanhedrin at Jerusalem;
and was elevated finally to the Great Sanhedrin itself.1
After this manner, all the courts of the ancient He-
brews were recruited and replenished from time to
time; the young aspirant to judicial favors beginning
in the local Court of Three and rising by successive
steps to the Great Sanhedrin at Jerusalem.

The exact method of filling vacancies and thus re-
plenishing the membership of the Great Sanhedrin is
not certainly known.2 The following extract from the
Talmud, however, is thought to be authoritative:

In front of them (the judges of the Great Sanhedrin) sat
three rows of learned disciples; each of them had his own
special place. Should it be necessary to promote one of them
to the office of judge, one of those in the foremost row was
selected. His place was then supplied by one in the second
row, while one from the third was in turn advanced to the
second. This being done, someone was then chosen from the
congregation to supply the vacancy thus created in the third
row. But the person so appointed did not step directly into

1 Mendelsohn, p. 101.

2 Schurer, "The Jewish People in the Time of Jesus Christ," 2d Div., I.

HEBREW CRIMINAL LAW 119

the place occupied by the one last promoted from the third
row, but into the place that beseemed one who was only newly
admitted.1

Quorum of the Great Sanhedrin. — Twenty-three
members constituted a quorum of the Great Sanhe-
drin. This was the full number of the membership of
a Minor Sanhedrin.

Number of Votes Required to Convict. — "In crimi-
nal trials a majority of one vote is sufficient for an ac-
quittal; but for a condemnation a majority of two is
necessary," is the language of the Mishna.2 The full
membership of the Great Sanhedrin was seventy-one.
A condemnation by thirty-five acquitted the accused;
a condemnation by thirty-six also acquitted. At least
thirty-seven votes were needed to convict. If a bare
quorum was present, at least thirteen votes were neces-
sary to condemn.

A very peculiar rule of Hebrew law provided that
" a simultaneous and unanimous verdict of guilty ren-
dered on the day of trial, had the effect of an ac-
quittal." 3 Such a verdict was considered to be lack-
ing in the element of mercy, and was thought to result
more from conspiracy and mob violence than from
mature judicial deliberation.

Jurisdiction of the Great Sanhedrin. — The jurisdic-
tion of the Great Sanhedrin is briefly and concisely
stated in the Mishna:

The judgment of the seventy-one is besought when the
affair concerns a whole tribe or is regarding a false prophet

1 "Sanhedrin" IV. 4. 2 "Sanhedrin" IV. I. 3 "Sanhedrin" 17a, p. 176.

iio THE TRIAL OF JESUS

cr the high-priest; when it is a question whether war shall be
declared or not; when it has for its object the enlargement of
Jerusalem or its suburbs; whether tribunals of twenty-three
shall be instituted in the provinces, or to declare that a town
has become defiled, and to place it under ban of excommuni-
cation.1

Edward Gibbon has also defined the jurisdiction of
the same court as follows:

With regard to civil objects, it was the supreme court of
appeal; with regard to criminal matters, a tribunal constituted
for the trial of all offences that were committed by men in
any public station, or that affected the peace and majesty of
the people. Its most frequent and serious occupation was the
exercise of judicial power. As a council of state and as a
court of justice, it possessed many prerogatives. Every power
was derived from its authority, every law was ratified by its
sanction.

The Great Sanhedrin possessed all the powers and
attributes of a national parliament and a supreme
court of judicature. It corresponded to the Areopa-
gus of Athens and to the senate of Rome. It took cog-
nizance of the misconduct of priests and kings. Jose-
phus tells us that Herod the Great was arraigned as
a criminal before its judges, and that King Hyrcanus
himself obeyed its mandates and decrees.

Appeals. — Appeals were allowed from a Minor
Sanhedrin to the Great Sanhedrin. But there was no
appeal from a mandate, judgment, or decree of the
Great Sanhedrin. " Its authority was supreme in all
matters ; civil anl political, social, religious, and crimi-
nal."

1 "Sanhedrin," Chap. I. 5.

HEBREW CRIMINAL LAW

121

It is believed that enough has been said touching
the character, organization, and jurisdiction of the
supreme tribunal of the ancient Hebrews to satisfy the
average reader. Indeed, it may be that this limit has
been exceeded. The remainder of this chapter will be
devoted to a short review of the Minor Sanhedrins and
the Courts of Three.

Minor Sanhedrins. — There was no fixed number of
Minor Sanhedrins for the administration of justice in
the Hebrew Commonwealth. Wherever and when-
ever, in any town or city inhabited by at least one hun-
dred and twenty families, the people desired a Sanhe-
drin of three-and-twenty members, such a tribunal was
established. For this purpose, an application was
made to the Great Sanhedrin at Jerusalem, which dis-
patched a mandate to the town ordering the residents
to assemble and to nominate from among themselves
persons qualified to act as judges. The electors were
expected to bear in mind the qualifications that would
fit a judge for membership in the Great Sanhedrin, to
which all local judges might eventually be elevated.
Accordingly, only " good men and true " were
chosen at the town mass meeting. Immediately upon
receipt of the return to the mandate, an authorization
was sent back from Jerusalem to the town or city
which confirmed the election and constituted the
judges selected a Sanhedrin of three-and-twenty
members.1

Jurisdiction of the Minor Sanhedrins. — The juris-
diction of the Minor Sanhedrins extended to nearly

1 Benny.

122 THE TRIAL OF JESUS

all criminal cases involving imprisonment or seclu-
sion for life, internment in a city of refuge, and
capital punishment. Adultery, seduction, blasphemy,
incest, manslaughter, and murder belonged to these
different classes. This court condemned an ox to be
butchered that had gored a man to death. The con-
demnation proceedings were something in the nature
of a trial of the beast; and the owner was severely fined
where the evidence proved that he knew the vicious
disposition and habits of the animal. The delibera-
tions at the trial of the bull were most careful and sol-
emn, since the value of a human life was involved in
the proceedings and had to be estimated in the judg-
ment.

Besides jurisdiction in criminal matters, the Sanhe-
drins of three-and-twenty members performed certain
civil functions. They were the tax boards of the va-
rious provinces. They constituted the regular agen-
cies of government for the distribution of public
charity. The management and administration of pub-
lic elementary schools were under their control. The
legal standards of weights and measures were in-
spected by them and received their seals. Sanitary
regulations, repairing the defenses of walled cities,
and maintaining the public highways in good condi-
tion, were among the duties of the Minor Sanhedrins.

The qualifications of judges of these courts were the
same as those required for membership in the Great
Sanhedrin. This was true because the judges of the
provincial courts might be promoted to the supreme
tribunal at Jerusalem. The Minor Sanhedrins might

HEBREW CRIMINAL LAW 123

be very aptly described as the nisi prius courts of the
Commonwealth of Israel. It was in these courts of
three-and-twenty members that the bulk of Hebrew
litigation was disposed of. It seems that, though equal
in number, they were not all regarded as equal in
learning or authority. It is distinctly stated that ap-
peals could be taken from one Minor Sanhedrin to
another " deemed of superior authority." 1 The dif-
ference was probably due to the fact that in the larger
towns were located colleges and schools, some of whose
professors were doubtless either advisers or members
of the local Sanhedrin. At any rate, when a difficult
question, civil or criminal, could not be determined,
for want of an authoritative and registered decision,
by an ordinary Sanhedrin of three-and-twenty judges,
the matter was referred to the nearest neighboring
Sanhedrin thought to be of greater repute. If no au-
thentic tradition offering a solution of the litigated
question was in the possession of the Sanhedrin to
which appeal had been taken, the matter was then re-
ferred to the first Minor Sanhedrin in Jerusalem which
sat in the Har-habaith. If the judges of this court
were themselves without precedent touching upon the
litigated proposition, it was still further referred to the
second Minor Sanhedrin of Jerusalem, located in the
Azarah. If, again, this court was without the neces-
sary tradition that would enable it to decide the ques-
tion, the matter was finally brought before the Great
Sanhedrin. If this august tribunal was without prece-
dent and tradition that would enable its members to

1 Benny.

i24 THE TRIAL OF JESUS

dispose of the question according to adjudicated cases,
they then decided, nevertheless, in accordance with the
sentiments and principles of natural justice.

It should be remembered that of the Minor Sanhe-
drins to which every town of one hundred and twenty
families was entitled, two sat at Jerusalem. It was left
optional with a litigant from the provinces to appeal
to the local Sanhedrin or to one of the Minor Sanhe-
drins in Jerusalem. Local bias or prejudice was thus
avoided.

Lower Tribunals. — The lowest order of Hebrew
tribunal was the Court of Three, composed of judges
selected by the litigants themselves. The plaintiff
chose one member, the defendant selected another, and
these two chose a third. A majority opinion decided
all questions. In the later years of Jewish nationality,
it was thought best to have at least one authorized
jurist (mumcha) in the Court of Three. This par-
ticular judge was probably an appointee of the Great
Sanhedrin from among the young disciples (Zaken or
Rabbis). This appointment was doubtless intended
to give repute to the local court and experience to the
legal aspirant, as well as to furnish a possible recruit
to the Great Sanhedrin.1

These courts corresponded very nearly to the mod-
ern courts of Justices of the Peace. Their jurisdiction
extended to civil matters of small importance and to
petty criminal offenses. They were not permanent,
being more in the nature of referees or arbitrators, and
sat only when occasion required. Their sessions were

1 Benny.

HEBREW CRIMINAL LAW 125

public and were held in the open air under trees, or
at the city gate.

Thus much for the judicial system of courts and
judges among the ancient Hebrews. It was simple in
the extreme, democratic to the core, and seems to have
been thoroughly reliable and effective. It was founded
upon universal suffrage, subject only to the general su-
pervision and occasional appointments of the Great
Sanhedrin. The judges were ever in touch with the
sympathies and the best interests of the people.

Peculiarities of the Hebrew System. — Certain very
striking peculiarities marked the Hebrew system:

(1) There were no lawyers or advocates. These
judicial disputants have been known to every other
system of enlightened jurisprudence. But there were
no Ciceros, Erskines, Choates among the ancient He-
brews. The judges were the defenders as well as the
judges of the accused. It may be easily read between
the lines that the framers and builders of the Hebrew
judicial system regarded paid advocates as an abomi-
nation and a nuisance. King Ferdinand, of Spain,
seems to have had the Hebrew notion when, more than
a thousand years after Jerusalem fell, he sent out colo-
nies to the West Indies, with special instructions " that
no lawyers should be carried along, lest lawsuits
should become ordinary occurrences in the New
World." 1 Ferdinand evidently agreed with Plato
that lawyers are the plague of the community.2

(2) There was no secret body, with the accusatory
functions of the modern Grand Jury, connected with

1 Mendelsohn, p. 140, n. 327. 2 Montaigne, "Essays," III. C. XIII.

I26 THE TRIAL OF JESUS

the ancient Hebrew judicial system. The witnesses
were the accusers, and their testimony constituted both
the indictment and the evidence.

(3) There were no public prosecutors or State's at-
torneys known to the Hebrew system. Here, again,
the witnesses were the informants, prosecutors, and, in
capital cases, executioners of the accused.

(4) No court, among the ancient Hebrews, could
consist of a single judge. Three was the number of the
lowest court; three-and-twenty, of the next highest;
and seventy-one, of the Great Sanhedrin at Jerusalem.
A single intelligence acting judicially would have
been regarded as a usurpation of divine prerogative.
The basis of this peculiar Hebrew notion is a single
sentence from the Pirke Aboth, iv. 8 : " Be not a sole
judge, for there is no sole judge but One." 1

1 "Un homme ne jugera jamais seul; cela n'appartient qu'a Dieu."
"Ne sis judex unus; non est enim unicus judex, nisi unus." — Salvador,
"Institutions de Moi'se," L. IV. Chap. II. p. 357.

CHAPTER IV

HEBREW CRIMINAL LAW — WITNESSES AND EVIDENCE

OMPETENCY. — The qualifi-
cations of a competent witness,
under Hebrew law, were almost
identical with those of a quali-
fied judge, mentioned in a pre-
vious chapter. Self-evidently,
all persons who were not incom-
petent, were competent.

Incompetency. — The follow-
ing persons were incompetent to be witnesses: Gen-
tiles, women,1 minors, slaves,2 idiots and lunatics, deaf
mutes, blind men, gamblers, usurers, illiterate or im-
modest persons, persons who had been convicted of ir-
religion or immorality, relatives by affinity or consan-
guinity, and all persons directly interested in the case.
The witness must have been a Hebrew, though the
Talmud mentions cases in which certain facts were al-
lowed to stand proved upon statements " made inno-
cently " by a Gentile; that is, not as a witness in court.
Women were not permitted to be witnesses ordi-

1 "But let not the testimony of women be admitted, on account of the
levity and boldness of their sex." — Josephus, "Ant.," IV. 8, 15.

2 "Nor let servants be admitted to give testimony, on account of the ig-
nobility of their souls."—" Ant.," IV. 8, 15.

127

128 THE TRIAL OF JESUS

narily, because of the " levity and boldness of the
sex." 1 In capital cases, they were not allowed to tes-
tify against the accused, because the law required the
witnesses to become the executioners of the condemned
man, and it was not deemed proper to impose this sol-
emn and awful duty upon the weaker sex.

Puberty or adolescence marked the age which quali-
fied a person to be a witness in criminal cases; that is,
the thirteenth year must have been passed.

Immoral and irreligious persons were incompetent
to testify. Such men were termed " wicked " in refer-
ence to the law as laid down in Exodus xxiii. i : "Thou
shalt not raise a false report: put not thine hand with
the wicked to be an unrighteous witness." Under the
stigma of the immoral and irreligious came dicers,
usurers, pigeon fliers, and those who traded in the
fruits of the Sabbatical year. Maimonides also men-
tions as incompetent " men who showed lack of self-
respect by eating on the street, walking about naked at
their work, or living openly on the charity of
Gentiles." 2 Publicans — tax-gatherers — were usually
classed with heathens and sinners as being among the
immoral and irreligious. This class of persons were
suspected by the Jews, not only because they were re-
garded as the official representatives of the Roman
oppressors of Judea, but also because extortion and
cruelty were frequently practiced by them. Theocri-
tus being asked which was the most cruel of all beasts,
replied: " Among the beasts of the wilderness, the bear

1 "Ant.," IV. 8, 15.

2 Maimonides, I. C. XI. 6, based on "Sanh." 26b.

HEBREW CRIMINAL LAW 129

and the lion are the most cruel, but among the beasts
of the city, the Publican and the Parasite." l

The doctrine of interest as a disqualification to tes-
tify was carried to the limit of declaring a person in-
competent to be a witness when he was the citizen of
a town where claim of title to the public bath house
or the square was made, until he had first divested him-
self of all share in the title to the litigated property.2

Number Required to Convict. — Under Hebrew
law, both Mosaic and Talmudic, at least two witnesses
were required to convict an accused person. The
prosecuting witness being included, three were neces-
sary.

Concerning capital punishment, the Mosaic ordi-
nance, referring to this rule, runs thus:

At the mouth of two witnesses, or three witnesses, shall he
that is worthy of death be put to death; but at the mouth of
one witness he shall not be put to death.3

Whoso killeth any person, the murderer shall be put to
death by the mouth of witnesses; but one witness shall not
testify against any person to cause him to die.4

From the Talmud we learn that this Mosaic pro-
vision was maintained with scrupulous fidelity in the
administration of justice throughout all the years of
Jewish nationality. It was a requirement of prudence
and safety which commends itself to every logician and
legist. It is not necessary to be a criminal lawyer of
large experience to know that the blackest falsehood
can almost always secure at least one champion. Pliny,

1 Mendelsohn, p. 118. 3 Deut. xvii. 6.

2 "Talmud," B. B. 43a. 4Num. xxxv. 30.

i3o THE TRIAL OF JESUS

the historian, knew this when he wrote: " Nullum
tarn impudens mendacium est quod teste careatT x

The requirement of two witnesses was not, however,
peculiar to the jurisprudence of the Hebrews. Nearly
every ancient code contained a similar enactment. It
was especially prominent in Roman law.2 But it can
scarcely be found to-day in any modern legislation.
In prosecutions for the crimes of treason and perjury
under the Common Law of England, two witnesses
were required; in almost all other cases, one positive
witness was sufficient.3

The American Constitution requires two witnesses
to the same overt act, to convict of treason.4 And the
penal laws of the majority of the American States
have provisions requiring at least two witnesses, or one
witness corroborated by circumstantial evidence, to
establish guilt in the prosecution of certain crimes;
notably, the sexual crimes of rape and seduction,
the crime of perjury, as well as all crimes where
it is sought to convict upon the testimony of an
accomplice.

More than one hundred years ago, Montesquieu
boasted of such a requirement in French law and de-
clared that those laws which condemn a man to death
on the testimony of a single witness are fatal to lib-
erty.5 The reason of the rule proclaimed by the great

1 "Hist. Nat.," Lib. VIII. Cap. XXII.

2 L. 20, Dig. De quaestionibus, xlviii. 18.

3 Blackstone, iv. 357. 4 Con. U. S., Art. Ill, Sec. 3.

5"Les lois qui font perir un homme sur la deposition d'un seul temoin,
sont fatales a la liberte. La raison en exige deux; parce qu'un temoin qui
affirme, et un accuse qui nie, font un partage; et il faut un tiers pour le vider.

HEBREW CRIMINAL LAW 131

French writer is the same as that put forth by the an-
cient Rabbins. It was assumed that the defendant in
a criminal case would plead not guilty and deny the
facts of the crime. His plea and denial would simply
counterbalance and destroy the testimony of a single
witness swearing for the commonwealth. The testi-
mony of a third witness was, therefore, indispensable
to a decision. It may be objected that this rule was
absurd, since a conviction was impossible unless the
State could produce more witnesses than the accused.
But we shall learn later that the doctrine of sifting
testimony and weighing the credibility of witnesses
did not obtain so strictly among the ancient Hebrew
judges as it does in cases of modern trial by jury under
English and American law.

Agreement of Witnesses. — The witnesses were re-
quired to agree in all essential details; else, their testi-
mony was invalid and had to be rejected.

The Talmudic provision is: " If one witness contra-
dicts another, the testimony is not accepted." x

The illustration of the rule given by Maimonides,
in his commentary on this provision, is: " For instance,
if one witness were to testify to having seen an Israelite
in the act of worshiping the sun, and another to hav-
ing seen the same man worshiping the moon, yet,
although each of the two facts proves clearly that the
man had committed the horrible crime of idolatry, the

Les Grecs and les Romains exigeaient une voix de plus pour condamner.
Nos lois francaises en demandent deux. Les Grecs pretendaient que leur
usage avait ete etabli par les dieux; mais c'est le notre." — "De L'Esprit Des
Lois," L. XII. C. Ill,

1 Mishna, "Sanhedrin," C. V. 2.

i32 THE TRIAL OF JESUS

discrepancy in the statements of the witnesses invali-
dates their testimony and the accused is free." 1

This rule of strict agreement, it is supposed, ex-
tended, at first, only to criminal cases, but it was un-
doubtedly afterwards applied to civil causes as well.
An eminent contributor to the " Jewish Encyclope-
dia " says:

In civil cases, however, it is not necessary that the two
witnesses should agree very closely as to the time and place.
Thus, if of two witnesses to a loan one should say, " A lent
B a jar of oil," the other, " He lent him a jar of wine "; or,
if one should say, " I was present when the money was paid
at Jerusalem," the other, " I saw it paid at Hebron "; or, if
one should say, " I saw it paid in the month of Nisan," the
other, " I saw it paid in Iyyar," their testimony would be
void. But if one says he saw it paid in the upper and the
other in the lower story; or if he says on the first of the
month and the other on the second of the month, such evi-
dence is within the limit of fair mistake and the testimony
stands. Even less does a disagreement as to circumstances
other than time and place affect the testimony; for instance,
if one say the money is black from usage, the other that it
was new, this would be regarded as an immaterial circum-
stance, and the testimony would stand. Where the two wit-
nesses vary only in the matter of quantity, the lesser quantity
is sufficiently proved.2

One of the strangest provisions of Hebrew law was
the requirement that the testimony of each witness to
the transaction should cover the entire case. This was
a Talmudic rule resulting from Rabbinic construction
of the Mosaic ordinance, requiring at least two wit-

1 Maimonides, "Sanhedrin," Chap. XX.

2 "Jewish Encyc," vol. v. p. 277.

HEBREW CRIMINAL LAW 133

nesses to establish a crime. The doctors of the law
construed the rule to mean that the testimony of each
witness was to be complete within itself and to extend
to the whole case. Hebrew law did not permit the use
of circumstantial evidence in criminal prosecutions.
Only eyewitnesses of the crime were competent. Un-
der English and American law a crime may be proven
by any number of witnesses, each of whom testifies to a
separate fact which constitutes a link in the chain of
circumstantial evidence. But this method of proof
was forbidden by both the Pentateuch and the Tal-
mud. Under Hebrew law the capital crime of kid-
naping was made up of the two elements of Abduc-
tion and Selling. The testimony of two witnesses —
one to the fact of Abduction, the other to the fact of
Selling — was insufficient to convict. Each had to tes-
tify to the facts of both Abduction and Selling. This
Talmudic rule of criminal procedure was undoubtedly
based upon a supreme regard for the sanctity of hu-
man life and upon the fact that the Hebrews rejected
circumstantial evidence altogether in proving crime.
The extreme of the rule is declared by Mendelsohn
when he says : " And even where there appeared a
legal number of duly qualified witnesses, the testimony
was insufficient to convict, unless they agreed not only
with regard to the prisoner's offense, but also with re-
gard to the mode of committing it. Rabbinic law does
not subject a person to capital, nor even to corporal
punishment, unless all witnesses charge him with one
and the same criminal act, their statements fully agree-
ing in the main circumstances, and declaring that they

i34 THE TRIAL OF JESUS

saw one another, while seeing him engaged in the
crime." *

No Oath Required. — An oath, in the modern sense,
was never administered to a Hebrew witness.

Testimony was given under the sanction of the
Ninth Commandment: " Thou shalt not bear false
witness against thy neighbor." This solemn prohibi-
tion of bearing false witness was regarded by both
Moses and the Talmudists as a sufficient safeguard
against perjury. It was a settled maxim of Talmudic
law that: "Whosoever will not tell the truth without
an oath, would not scruple to assert falsehood with an
oath." The doctrine was carried still further by some
of the Jewish philosophers who declared that swearing
was injurious in itself; and that he who consents to
swear should ipso facto be suspected of lacking credi-
bility.2

In the place of an oath, the following solemn warn-
ing or adjuration was administered to each witness in
the presence of the entire court:

Forget not, O witness, that it is one thing to give evidence
in a trial as to money and another in a trial for life. In
a money suit, if thy witness-bearing shall do wrong, money
may repair that wrong. But in this trial for life, if thou sin-
nest, the blood of the accused and the blood of his seed to
the end of time shall be imputed unto thee. . . . Therefore
was Adam created one man and alone, to teach thee that if
any witness shall destroy one soul out of Israel, he is held
by the Scripture to be as if he had destroyed the world; and
he who saves one such soul to be as if he had saved the
world. . . . For a man from one signet ring may strike off

1 "Criminal Jurisprudence of the Ancient Hebrews," p. 29.

2 Philo Judaeus, "De Decalogo," III.

HEBREW CRIMINAL LAW 135

many impressions, and all of them shall be exactly alike. But
He, the King of the kings of kings, He the Holy and the
Blessed, has struck off from His type of the first man the
forms of all men that shall live, yet so that no one human
being is wholly alike to any other. Wherefore let us think
and believe that the whole world is created for a man such
as he whose life hangs on thy words. But these ideas must
not deter thee from testifying to what thou actually knowest.
Scripture declares: "The witness who hath seen or known,
and doth not tell, shall bear his iniquity." Nor must ye
scruple about becoming the instrument of the alleged crim-
inal's death. Remember the Scriptural maxim: "In the
destruction of the wicked, there is joy." 1

It will be observed that the two elements of this pre-
liminary caution were, first, a solemn warning against
injustice to the accused through false swearing and a
reminder of the inevitable retribution of Heaven upon
the perjured swearer and his remote descendants; sec-
ond, a pointed admonition against timidity or fear in
testifying.

Bound by this tremendous sanction, the Hebrew
witness was prepared to testify. The method was
unique, but seems to have been thoroughly effective.
Students of law will not be struck by its peculiarity.
They are well aware that any plan or mode is legal and
effective that binds the conscience of the witness.
Even under modern codes that impose an oath, no
fixed form is imperatively demanded. In King v.
Morgan, I Leach C. L. 54, a Mahometan was sworn
upon the Koran; in Omychund v. Baker, I Atk. 21, a
Gentoo was sworn by touching the foot of a Brahmin;
in Reg. v. Entrehman, I Car. & M. 248, a Chinese wit-

1 Prov. xi. 10; Mishna, "Sanhedrin " IV. 5.

136 THE TRIAL OF JESUS

ness took an oath by kneeling down and breaking a
saucer, the oath being administered through an inter-
preter in these words: "You shall tell the truth, the
whole truth; the saucer is cracked, and if you do not
tell the truth, your soul will be cracked like the
saucer."

Examination of Witnesses. — As an act of caution
against the admission of irrelevant testimony, and as
a means of placing before the entire court, in the first
instance, only such evidence as was deemed strictly
legal, a preliminary examination of witnesses was con-
ducted in private by a special committee of the Sanhe-
drin appointed for that purpose. All irrelevant tes-
timony developed at this private examination was
immediately declared inadmissible and was cast aside.
The necessary result of this most sensible proceeding
was the discovery, in advance, of discrepancies in the
statements of witnesses and the eradication of all ille-
gal testimony. The full court sitting in regular session
were not, therefore, exposed to the danger of being
prejudiced by the recital of facts that had no legal con-
nection with the case. Modern jurists might easily
learn something from the ancient Hebrews in this
regard. Every sensible lawyer is perfectly well aware
of the absurdity and injustice of the modern method
of criminal procedure in allowing skilled and design-
ing attorneys to propose certain kinds of irrelevant tes-
timony in the presence of the jury, knowing very well
that it will be overruled by the court. These attorneys
frequently deliberately draw out such testimony from
the witness with the expectation and understanding

HEBREW CRIMINAL LAW 137

that it will be ordered stricken out. The rule of prac-
tice that allows incompetent testimony to be tempora-
rily introduced upon a promise that a foundation will
be laid or relevancy shown, is abortive instead of pro-
ductive of justice. The mere clerical act of striking
out incompetent testimony does not, as a matter of fact,
remove the impression of prejudice from the brain of
the judge or juror. The ancient Sanhedrists were men
of brilliant education and superior natural endow-
ments. They were trained in powers of logical analy-
sis, and yet they were unwilling to trust themselves
with the possession of prejudicial facts arising from
incompetent testimony. It is respectfully submitted
that the modern average juror, whose mind is usually
undisciplined in logic and legal matters, is not able
to sift and disentangle the relevant from the irrelevant
in the record of a civil or criminal trial of two or more
weeks' duration. Theoretically, he is; but practically,
he is not. Every impression, good or bad, legal or
illegal, received at the trial, affects his judgment and
enters into the general summary of the case in reach-
ing a verdict.

Separation of Witnesses. — The witnesses were re-
quired to give their testimony separately and always
in the presence of the accused.

Daniel said to the people concerning the two old
men who testified against Susanna: " Separate them,
and I will examine them." 1

By this was meant that witnesses could not be exam-
ined until they had been separated in conformity with

1 Apocrypha.

i3 8 THE TRIAL OF JESUS

law. Under modern practice in most jurisdictions,
witnesses may be separated and examined one at a time
out of the presence of each other. The rule of separa-
tion is, however, generally optional with the litigant
and discretionary with the court; the ruling of the
court being usually reversed only in case of abuse of
discretion. But among the Hebrews the requirement
was mandatory and imperative. It had to be observed
in every case.

Mode of Examination of Witnesses. — The mode
employed by the Hebrew judges in examining wit-
nesses is without a precedent or parallel in the juris-
prudence of the world. Two distinct sets of questions
constituted the examination. The first set consisted of
a series of interrogations relating to the time and place
of the alleged crime. These questions were prescribed
by law and could not be varied in the slightest. The
technical name applied to the first set of questions was
Hakiroth. The second set was termed Bedikoth 1 and
included all interrogations touching the investigation
of relevant circumstances and corroborative facts sur-
rounding the case. The following seven questions,
constituting the Hakiroth, the first set of questions,
were propounded to each witness: "Was it during a
year of jubilee? Was it in an ordinary year? In what
month? On what day of the month? At what hour?
In what place? Do you identify this person? " 2

These seven questions were framed and applied in
conformity with a fundamental principle of the He-
brew law of evidence that the testimony of any witness,

1 Benny. 2 Mishna, "Sanhedrin," Chap. V. i.

HEBREW CRIMINAL LAW 139

if false, should admit of being impeached and over-
thrown by proof of an alibi against the witness. It
seems, indeed, that proof of an alibi against the witness
was the only method of impeachment known to He-
brew law. It may be readily seen that the only state-
ments capable of being thus contradicted were con-
fined to those relating to the details of time and place.
To illustrate: Suppose that two witnesses had testified
that the alleged crime was committed in a certain town
at a certain hour; suppose that it subsequently ap-
peared in evidence that, at the stated time, one or both
these witnesses were in a neighboring town. In such
a case, the witness or witnesses stood impeached, their
testimony was overthrown and they, themselves, be-
came subject to the pains and penalties of perjury.

The failure of any witness to answer satisfactorily
any of the seven questions above mentioned entitled the
accused to immediate acquittal. Any material disa-
greement between two or more witnesses required by
the law in answer to any one of these questions, like-
wise entitled the prisoner to immediate discharge.
These seven questions seem to have been framed not so
much to develop truthful testimony and to promote
the ends of justice from the standpoint of the State as
to enable the defendant to attack and destroy the testi-
mony of hostile witnesses. The rule and the reason
thereof are thus clearly and succinctly stated by Men-
delsohn:

The several particulars referring to time and place must
be furnished with the greatest possible precision and cer-
tainty, and that by the whole party of witnesses. The slight-

140 THE TRIAL OF JESUS

est disagreement on the part of the witnesses in regard to any
one of these particulars invalidates the entire testimony. Even
where a number of witnesses greater than that required by
law, as three, appear, and two agree on every point, but the
third differs from them as to more than one day, or more
than one hour in the day, the whole testimony is invalidated.
For time and place are the only points which affect the person
of the witness himself; he not being able to be at more than
one spot at any one time; time and place are, accordingly, the
only grounds on which the witness may be confuted and duly
punished.

The second set of questions, termed the Bedikoth,
embraced all matters not brought out by the Hakiroth,
such as would form the basis of legitimate modern di-
rect or cross examination. The following kinds of
evidence, however, were not admissible under either
set of questions: Evidence of character, good or bad;
previous convictions of the accused; and evidence as
to the prisoner's antecedents. Such matters were not
relevant, under Hebrew law, and could not be urged
against the prisoner.1

False Witnesses. — Hebrew law provided that false
witnesses should suffer the penalty provided for the
commission of the crime which they sought by their
testimony to fix upon the accused.

The Scriptural authority for this rule is the fol-
lowing:

"And the judges shall make diligent inquisition;
and, behold, if the witness be a false witness and hath
testified falsely against his brother, then shall ye do
unto him as he had thought to do unto his brother.

1 Benny.

HEBREW CRIMINAL LAW 141

. . . And thine eye shall not pity; but life shall go for
life, eye for eye, tooth for tooth, hand for hand, foot
for foot." J

" And they arose against the two elders, for Daniel
had convicted them of false witness, by their own
mouth; and according to the law of Moses, they did
unto them in such a sort as they maliciously intended
to do their neighbor; and they put them to death." 2

The Accused as Witness. — The accused was never
compelled, under Hebrew law, to testify against him-
self; but was permitted and encouraged to offer testi-
mony in his own behalf. His confession of guilt was
accepted in evidence and considered in connection
with other facts of the case, but was never permitted,
standing alone, to form the basis of a conviction.

The following is the commentary of Maimonides on
this rule of law:

We have it as a fundamental principle of our juris-
prudence that no one can bring an accusation against himself.
Should a man make a confession of guilt before a legally
constituted tribunal, such confession is not to be used against
him, unless properly attested by two other witnesses. It is,
however, well to remark that the death sentence issued
against Achan was an exceptional case, brought about by the
nature of the circumstances attending it, for our law never
condemns on the single confession of an accused party.3

It is needless to suggest that the accused was never
put under oath. His position in this regard was ex-
actly the same as that of any other Hebrew witness.

1 Deut. xix. 18-21. 2 Apocrypha.

3 Maimonides, Mishna, "Sanhedrin," Chap. IV. 2.

1 42 THE TRIAL OF JESUS

A special reason assigned for not swearing the accused
is that offered in the celebrated maxim: " In most men
religion is silent when interest speaks." Again, the
inducement to perjury was so great that it was thought
imprudent to allow the accused to confess under the
solemnity of an oath.

The principle of law which rejects a bare confession
of guilt as a basis of criminal conviction is one of the
most merciful and benign known to jurisprudence. It
is intended to protect the commonwealth against per-
jury and deception on the part of the accused. It is
also intended to protect the prisoner against ignorance
and rashness. It is a well-known fact that the masses
of mankind are ignorant of law, both civil and crimi-
nal. Not one in a thousand in the most enlightened
commonwealths can define successfully the elements of
the crimes of the state of which he is a citizen. By
refusing to allow an uncorroborated confession to be
made the basis of a conviction, the State simply throws
the mantle of charity and protection around the igno-
rance of the prisoner who confesses. It is also well
known that men will frequently confess guilt when
they are not guilty; sometimes, when they are even
ignorant of the facts constituting the offense. This is
one of the strangest things known to psychology and
mental philosophy.1 It is derived from the well-known
and universally recognized weakness of the human
will when confronted with a charge that threatens to
blight and destroy life and character at a single blow.

1 Munsterberg, " On the Witness Stand," " Untrue Confessions," pp.

HEBREW CRIMINAL LAW 143

A celebrated modern writer, while discussing this rule
of Hebrew law, wrote the following observations upon
the origin and motive of confession of guilt under
criminal charges:

The confession of the accused made no exception to the
rule, showing how a confession could be made the result of
weakness, or folly, or of interest — yes, even of interest.
Some homicide on one occasion confessed himself to be guilty
of robbery or arson in order to obtain proof of his innocence
of some greater crime which he had committed at the same
time; a husband persisted in declaring himself guilty of out-
rage upon a woman, really committed by some unknown
person, in order that, by being sentenced on this account, he
might prove his marital efficiency, which had been disputed
by his wife, who was contemplating steps to annul her mar-
riage. Some weak-minded people, unable to support the tor-
ture of a harassing examination, and eager to regain their
liberty, make a full confession, accusing themselves in order
not to be indicted, like those persons who, crossing a river
on a plank bridge, throw themselves, through nervousness,
into the rushing water, in order not to fall in. Fools, from
want of responsibility, or through a boastful nature, accept,
affirm, or confess everything of which they know nothing.1

The reasons above stated lie at the foundation of all
modern provisions framed for the protection of the
accused against precipitate self-condemnation. But,
strange to say, these reasons were not urged by the
framers or interpreters of Hebrew law. The explana-
tion offered by the Talmud was simply this: " He is
his own kin"; and, as we have seen, relatives were
never permitted to be witnesses. A modern Jewish
writer has assigned the following reason for the rule

1 Rosadi.

i44 THE TRIAL OF JESUS

forbidding a confession to form the basis of a convic-
tion: that, if the prisoner were innocent, he should not
be permitted to incriminate himself by a false confes-
sion; if he were guilty, he was a wicked person, and,
therefore, incompetent to testify under Hebrew law.1
This rule was not enforced, however, against the de-
fendant when testifying in his own behalf; an addi-
tional proof of the merciful regard of Hebrew law for
the unfortunate position of a human being charged
with crime. His testimony, though self-serving, was
given due weight when urged in his own defense. Lit-
tle attention was paid to it when he testified against
himself.

Relevancy of Hebrew Evidence. — Hearsay evi-
dence was irrelevant under Hebrew law. " Hearsay
evidence was barred equally in civil as in criminal
cases, no matter how strongly the witness might be-
lieve in what he heard and however worthy and nu-
merous were his informants." 2

Circumstantial evidence was irrelevant under He-
brew law. " The sages had very little more confidence
in circumstantial evidence given for the purpose of
' taking money out of ' the defendant's pocket, than in
that given for the purpose of inflicting the penalty of
death or stripes. Ket. ii. 10 has been cited, according
to which a witness may testify that, when a boy, he saw
a woman walk about in maidenly attire; the object
being to prove that she married as a maiden, not as a
widow, and is therefore entitled to a greater sum for
her jointure. In discussing this clause, the Talmud

1 Rabbi Wise, "Martyrdom of Jesus." 2 "Yad," Edut, xvii. I.

HEBREW CRIMINAL LAW 145

remarks that this is only arguing from the majority of
cases; for though in most cases those wearing maidens'
attire are not widows, occasionally they are; and
money ought not to be taken out of a man's pocket on
reasoning from the greater number of cases. In fact,
circumstantial evidence was generally rejected." 1

There were occasional exceptions to the rule in the
administration of Hebrew civil law, but none in crimi-
nal law. In criminal cases no Hebrew prisoner could
be convicted upon circumstantial evidence. Every
link in the chain of testimony had to be forged by the
direct evidence of at least two competent witnesses;
else the accused was acquitted and discharged.

Written, or documentary evidence, was not relevant,
under Hebrew law, in criminal prosecution. The rea-
son of this rule was derived from a literal interpreta-
tion of the Mosaic ordinance: "Whoso killeth any
person, the murderer shall be put to death by the
mouth of witnesses." 2 The expression, " mouth of wit-
nesses," was construed by the interpreters of the law
to require oral testimony and to exclude writing in all
criminal prosecutions.

Kinds of Oral Testimony. — Hebrew oral testimony
is divided by the Mishna into three leading classes: 3

( 1 ) Vain testimony.

(2) Standing testimony.

(3) Adequate testimony.

" Vain testimony " seems to have been wholly im-
material and irrelevant. It was not even conditionally

1 "Jewish Encyc," vol. v. p. 279. 2 Num. xxxv. 30

3 Mishna, "Sanhedrin" V. 3, 4.

146 THE TRIAL OF JESUS

admitted, but was instantly and permanently rejected.
The New Testament seems to indicate that such testi-
mony was rendered against Jesus by the " many false
witnesses " who first came, and that this testimony was
rejected.

" Standing testimony " seems to have been condi-
tionally admitted and to have been allowed to remain
in evidence until it was properly confirmed by and
joined to other evidence which the law required. It
was not valid, however, until so connected and con-
firmed. We must remember that at least two wit-
nesses, agreeing in all essential details, were needed,
under Hebrew law, to convict a prisoner. It is evi-
dent then that the testimony of the first witness against
the accused was necessarily regarded as " standing tes-
timony," until the second or confirming witness, which
the law required, had testified. This testimony is also
referred to in the New Testament when it is said that:
" At the last, came two false witnesses, And said, This
fellow said, I am able to destroy the temple of God
and to build it in three days." * The testimony of the
first of these witnesses was doubtless allowed to stand
until it was shown that the second witness did not ren-
der testimony in agreement with it. Contradictory tes-
timony was thrown out under Hebrew criminal pro-
cedure; and this was done regardless of the number of
witnesses who testified against the accused. It seems
that a rigid application of the principle of exclusion
based upon contradictory statements would have shut
out the testimony of any number of agreeing witnesses,

1 Matt. xxvi. 60.

HEBREW CRIMINAL LAW 147

if said testimony had been contradicted in a radical
and material way by even a single witness. The sift-
ing of evidence and the weighing of the credibility of
witnesses, which is the peculiar prerogative of the
modern jury, were no part of the duties of the ancient
Sanhedrists. The testimony of all the witnesses against
the accused had to agree in all material respects, else it
was wholly rejected. Now it necessarily follows that
all testimony against a prisoner was of the " standing "
or provisional kind until the last witness had testified,
and it was found that the evidence in its entirety was
in legal agreement. Mark, using the almost exact
technical expression of the law, tells us, concerning the
false testimony against Jesus, that " their witness
agreed not together." 1 This disagreement caused the
" standing testimony " of the first witness to fall and
the charge of threatening or attempting to destroy the
Temple was abandoned, as we shall see in a later part
of this work.

" Adequate testimony," under Hebrew criminal
procedure, was evidence that was competent, material,
and in legal agreement. When two or more witnesses,
being the entire number, against the accused agreed in
all essential details, their testimony was considered
adequate, and if the judges believed it to be true they
based a conviction upon it.

Antecedent Warning. — It is deemed appropriate in
this chapter to call attention to and briefly discuss a
very striking peculiarity of the law of evidence under
Hebrew criminal procedure. In the chapter on Mo-

1 Mark xiv. 56.

148 THE TRIAL OF JESUS

saic and Talmudic law, reference was made to the cele-
brated proviso, called " Antecedent Warning." This
proviso was unknown to the Mosaic Code, being a
creation of Talmudic law, and is without a parallel in
the jurisprudence of the world. Briefly stated, Ante-
cedent Warning, under Hebrew law, meant simply
this: That no person charged with crime involving
life and death, or even corporal punishment, could be
convicted, unless it was shown by competent testimony
that immediately before the commission of the crime
the offender was warned that what he was about to do
was a crime, and that a certain penalty was attached
thereto. The warning was not effective if any time
elapsed between the admonition and the commission
of the offense. Furthermore, the warning was of no
force unless it was shown that the alleged criminal had
duly acknowledged it and had expressed a willingness
to suffer corporal punishment or to die for the act. It
must have been shown that, having received the warn-
ing, the would-be offender turned to his monitor and
said, " I am very well aware of the nature of the act I
am about to commit, of the rules of law applicable
thereto, and of the inevitable consequences of my mis-
deed " — else the court could not consider the condition
complied with.

This peculiar proviso seems to have been intended
to serve three distinct purposes: (i) To protect the
would-be offender against his own ignorance and rash-
ness and to prevent the commission of crime by a
timely warning; (2) to aid in establishing guilty in-
tention, that is, criminal intent, at the trial of the pris-

HEBREW CRIMINAL LAW 149

oner, after the commission of the offense; (3) to en-
able the judges to determine the exact penalty to assess.
The first two purposes are self-evident. The third
merits a brief consideration. To complete the warn-
ing, it was essential that the offender be told the exact
penalty attached to the crime which he was about to
commit; whether the punishment was capital or cor-
poral, and the exact kind, if capital; that is, whether
beheading, burning, stoning, or strangling. Now, it
often happened that two crimes were committed by
the same person in one day; the penalty for one of
which being flagellation and the other death. And it
sometimes happened that two different crimes were the
result of one criminal transaction. In such a case, the
nature of the Antecedent Warning would guide the
judges in decreeing punishment. To illustrate: The
Mosaic Code forbids the killing of either a cow or a
ewe " and her young both in one day "; 1 and a viola-
tion of this prohibition, according to Rabbinic law,
entails the punishment of flagellation. Another Mo-
saic ordinance imposes the penalty of death on the
Jewish idolater.2 Now, it might have happened that
the last two offenses mentioned were committed by the
same person at the same time, as when an Israelite
slaughtered a ewe and her young and sacrificed them
as an offering to an idol. The question would at once
arise: Which penalty should be assessed, death for
idolatry, or flagellation for killing the ewe and her
young both on the same day? Here, the nature of the
Warning would determine. If the prisoner had been

1 Lev. xxii. 28. 2 Deut. xvii. 5; "Sanhedrin" VII. 4.

ISO THE TRIAL OF JESUS

told that flagellation would be the punishment, then
stripes were administered. If he had been warned
that death was the penalty, then capital punishment
was meted out to him. If the caution had included
both death and flagellation, then death would have
been administered, because of the enormity of the
crime of idolatry and for the reason that all lesser pun-
ishments are merged in death.

Another illustration of the third purpose above
mentioned, that is, to enable the judges to determine
the exact punishment to administer, is this: The an-
cient Nazarites made solemn vows of abstemiousness.1
And when any Israelite took the Nazarite vow and
violated it, he subjected himself to the penalty of flag-
ellation if he drank a certain measure (34 l°g) of
wine. If he drank several such measures in succession,
the question would arise how he was to be punished.
Again, the antecedent caution would decide. If the
testimony showed that he had received due warning
before each drink, then he was punished for each
drink separately. If he had been admonished only
once, he was punished only once for the whole de-
bauch.2

The enforcement of this proviso established a rule
of criminal procedure peculiar to the Hebrews, and
recognized by no other nation. Such a requirement
seems to be utterly subversive of the celebrated maxim
that has found place in every other enlightened system
of law: Ignorantia juris, quod quisque tenetur scire,
neminem excusat. Among modern civilized nations,

1Num. vi. 2-4. 2 "Jewish Encyc," vol. vi. p. 260.

HEBREW CRIMINAL LAW 151

ignorance or mistake of fact in criminal law, as well
as ignorance or mistake of the meaning and effect of
civil or private law, has sometimes been permitted to
operate as an excuse in favor of the victim of the igno-
rance or mistake; but ignorance of the criminal or
public law has never been permitted to be pleaded as
a defense to an indictment for crime. Such a plea
would threaten the very existence of the state by ren-
dering the proof of crime and the conviction of crimi-
nals impossible.

Other reasons besides those assigned above have
been advanced to explain the invention of such a pro-
viso by the Talmudists. None of them is entirely sat-
isfactory. Rabbinowicz has urged with great force
that the enactment was the offspring of a constantly in-
creasing tendency on the part of the framers of the
Talmud to mitigate the rigors of the Mosaic Code, and
to abolish altogether the punishment of death by mak-
ing the conviction of criminals practically impossible.1
But this view has been ably and probably successfully
combated by Benny and others. To say the least, it
was a senseless provision when viewed from the stand-
point of the state in maintaining order and preserving
the commonwealth. The Rabbins framed several ex-
ceptions to its operation which were doubtless de-
signed to stay the progress of certain forms of crime
and to preserve the state. The false witness was ex-
cluded from the benefit of this proviso, as were also
the instigator to idolatry and the burglar. The false
witness was denied the benefit because of the impossi-

1 " Einleitung in der Gesetzgebung," p. 4.

i si THE TRIAL OF JESUS

bility of foreseeing that he would swear falsely and of
forewarning him; the idolater was excepted because of
the heinousness of the crime of idolatry under a theo-
cratic commonwealth; and the burglar was denied the
benefit of the caution for the very peculiar reason that
the " breaking in," while committing the crime of bur-
glary, was sufficient warning.1

Such a rule is utterly without foundation in logic
or reason from the simple fact that crime in every age
has been committed with every circumstance of cau-
tion and concealment that criminal ingenuity could
devise; usually under the cover of night, often with a
mask, frequently by the aid of accomplices to give no-
tice of the appearance of the officers of the law, and
nearly always with subsequent attempts to wipe out
evidences of the commission of the offense. To re-
quire a preliminary caution, such as the Antecedent
Warning of the Jews, was to handicap the state most
seriously and to render almost impossible the appre-
hension and punishment of public malefactors.

1 "Jewish Encyc," vol. vi. p. 260; Benny, "Criminal Code of the Jews,"
p. 97; Saalschiitz, "Das Mosaische Recht," n. 560.

CHAPTER V

HEBREW CRIMINAL LAW — MODE OF TRIAL AND EXECU-
TION IN CAPITAL CASES

HE administration of Hebrew
criminal law was marked by
lofty conception of right and
wrong, and was pervaded by a
noble sentiment of justice and
humanity. From the framing
of the Decalogue to the latest
years of Jewish nationality, each
succeeding generation witnessed
some humane and merciful modification of existing
rules. Talmudic interpretation invented a series or
collection of sayings that gave form and character to
the whole body of later Hebrew law. These maxims
were intended to mitigate the rigors of the Mosaic
Code and to establish safeguards against negligence or
injustice to the defendant in criminal trials. Indeed,
every possible precaution was taken to render impossi-
ble the wrongful conviction of an accused person.
The student of Hebrew law is at times astonished by
the excessive caution inculcated in criminal procedure.
Certain cautionary rules are no less than pedantic, and
may be justly and aptly styled Judaical. The judges
leaned always to the side of the defendant and gave

'S3

i54 THE TRIAL OF JESUS

him the advantage of every possible doubt. They
went a step farther and sought pretext after pretext
that would result in an acquittal. A sense of awful
responsibility weighed upon the hearts and consciences
of the judges. The services of the synagogue were not
conducted with deeper fervor or greater religious so-
lemnity than were the proceedings of a capital trial in
the great Judgment Hall of the Sanhedrin. Certain
sacred maxims flamed forever like beacon lights along
the pathway of the members of the court during the
solemn deliberations. " A judge," says the Talmud,
" should always consider that a sword threatens him
from above, and destruction yawns at his feet." The
ancient adage, " the pen of the law fears the thunder
of Heaven," though of Chinese origin, is Hebraic in
spirit. " Thou shalt do no unrighteousness in judg-
ment" was the leading aphorism of Hebrew jurispru-
dence. Among the earliest traditions of the Fathers,
we read this maxim: "When a judge decides not ac-
cording to truth, he makes the majesty of God to de-
part from Israel. But if he judges according to the
truth, were it only for one hour, it is as if he estab-
lished the whole world, for it is in judgment that the
divine presence in Israel has its habitation." Hebrew
horror of capital punishment and dread of taking hu-
man life are well expressed in the celebrated maxim
of the Mishna: "The Sanhedrin, which so often as
once in seven years, condemns a man to death, is a
slaughter-house." 1 And more striking and startling
still is the terrible sentence of Rabbi Meir: "What

1 Mishna, treatise Makhoth.

HEBREW CRIMINAL LAW 155

doth God say (if one may speak of God after the man-
ner of men) when a malefactor suffers the anguish due
to his crime? He says, My head and my limbs are
pained. And if he so speaks of the suffering even of
the guilty, what must he utter when the righteous is
condemned? " The whole spirit of Talmudic caution
is well illustrated by the principal rule of the Pirke
Aboth, which says: "Be cautious and slow in judg-
ment, send forth many disciples, and make a fence
round the law." 1

In addition to the maxims above mentioned, which
were more religious than legal, four cardinal rules of
criminal procedure — " strictness in the accusation,
publicity in the discussion, full freedom granted to the
accused, and assurance against all dangers or errors of
testimony " 2 — molded the judgment and guided the
consciences of Hebrew judges. These sayings of the
Fathers and maxims of the law were the touchstones
of all their judicial inquiries and meditations at the
trial of capital cases. With prayer in their hearts and
these maxims upon their lips, they applied themselves
to the solemn duties of their office.

A most interesting passage in the Mishna draws a
striking contrast between capital trials and those in-
volving questions of money only. The relevancy of
the passage to this chapter is so great that it is deemed
best to quote it entire:

Money trials and trials for life have the same rule of in-
quiry and investigation. But they differ in procedure in the

1 Mishna, "Capita Patrum," I. i.

2 Salvador, "Institutions de Mo'ise."

156 THE TRIAL OF JESUS

following points: The former require only three, the latter
three-and-twenty judges.

In the former it matters not on which side the judges
speak who give the first opinions; in the latter, those who are
in favor of acquittal must speak first.

In the former, a majority of one is always enough; in the
latter, a majority of one is enough to acquit, but it requires
a majority of two to condemn.

In the former, a decision may be quashed on review (for
error), no matter which way it has gone; in the latter, a con-
demnation may be quashed, but not an acquittal.

In the former, disciples of the law present in the court may
speak (as assessors) on either side; in the latter, they may
speak in favor of the accused, but not against him.

In the former, a judge who has indicated his opinion, no
matter on which side, may change his mind; in the latter, he
who has given his voice for acquittal may not change.

The former (money trials) are commenced only in the
daytime, but may be concluded after nightfall; the latter
(capital trials) are commenced only in the daytime, and
must also be concluded during the day.

The former may be concluded by acquittal or condemna-
tion on the day on which they have begun ; the latter may be
concluded on that day if there is a sentence of acquittal, but
must be postponed to a second day if there is to be a con-
demnation. And for this reason capital trials are not held
on the day before a Sabbath or a feast day.1

The principal features of a Hebrew capital trial
before the Great Sanhedrin were: (i) The Morning
Sacrifice; (2) the Assembling of the Judges in the
Lishkath haggazith, or the Hall of Hewn Stones; (3)
the Examination of Witnesses; (4) the Debates and
Balloting of the Judges on the guilt or the innocence
of the accused. These successive steps will be briefly
considered in this chapter.

iMishna, "Sanhedrin" IV. 1.

HEBREW CRIMINAL LAW i57

The Morning Sacrifice. — It is not positively known
what legal connection, if any, the morning sacrifice
had with the trial of a capital case before the Great
Sanhedrin at Jerusalem. Several writers contend that
there was no essential legal connection; that the sacri-
fice was offered at the break of day whether a capital
case was to be tried or not; and that the court was not
dependent upon this religious observance for jurisdic-
tion in the trial of criminal cases. Other writers hold
opposite views, and contend that the morning sacrifice
was essential to give jurisdiction to the court. MM.
Lemann consider it an error in the trial of Jesus that
the morning sacrifice was not offered before the com-
mencement of proceedings.1 Certain passages from
the Mishna very strongly support this second view:
that the court could not legally convene until the
morning sacrifice had been offered. " The Sanhedrin
sat from the close of the morning sacrifice to the time
of the evening sacrifice." 2 . . . " Since the morning
sacrifice was offered at the break of day, it was hardly
possible for the Sanhedrin to assemble until an hour
after that time." 3 These passages seem to indicate
that the morning sacrifice was necessary before the
court could legally convene. This question will be
found more fully discussed under Point V of the Brief
in this volume. The method of offering the morning
sacrifice was as judicial in its precision as it was re-
ligious in its solemnity.

1 "Jesus Before the Sanhedrin," p. log.

2 "Talmud," Jerus., Sanh., C. I. fol. 19.

3 Mishna, "Tamid," C. III.

158 THE TRIAL OF JESUS

The Assembling of the Judges. — At the close of the
morning sacrifice, the members of the court entered
the judgment hall in solemn procession. They took
their seats, " turbaned, on cushions or pillows, in ori-
ental fashion, with crossed legs, and unshod feet, in a
half-circle." 1 The high priest sat in the center with
the other members of the court to the right and left
of him. " His head was crowned with a turban of blue
inwrought with gold. On his bosom hung the priestly
breastplate, in which glittered twelve precious stones,
emblems of the twelve tribes of Israel. A flowing robe
of blue, gathered about his waist by a girdle of purple,
scarlet, and gold embroidery, enveloped his person and
set off the pure white linen of his capacious sleeves.
The buttons of this costly robe were onyx stones. His
slippered feet were half concealed beneath the long
fringe of his pontifical vestments, which were curi-
ously embroidered with pomegranates in gold and
scarlet and crimson. No Roman Catholic pontiff ever
wore robes more resplendent than those in which the
high priest was attired on public and state occasions.
Immediately before him sat the scribes or clerks of the
court. The one on his left hand wrote down whatever
testimony was adduced against the accused; what votes
were cast for his condemnation. The one on the right
transcribed what appeared in his favor." 2

According to most writers, including Dr. Lyman
Abbott, only two scribes were present having seats
at each end of the semicircle. According to Benny,

1 Geikie, vol. ii. p. 517.

2 Lyman Abbott, "Jesus of Nazareth," pp. 446, 447.

HEBREW CRIMINAL LAW 159

however, "three scribes were present; one was seated
on the right, one on the left, the third in the cen-
ter of the hall. The first recorded the names of the
judges who voted for the acquittal of the accused and
the arguments upon which the acquittal was grounded.
The second noted the names of such as decided to con-
demn the prisoner and the reasons upon which the con-
viction was based. The third kept an account of both
the preceding, so as to be able at any time to supply
omissions or check inaccuracies in the memoranda of
his brother reporters."

The prisoner was placed in front of the high priest,
in a conspicuous position, where he could see all and
could be seen by all.

Thus organized and arranged, the Sanhedrin began
the work of the day.

Examination of Witnesses. — The examination of
witnesses, who were also accusers, marked the begin-
ning of proceedings. It is doubtful if the indictment
against criminals was in writing. The first witness
who was to testify was led into an adjoining room and
solemnly warned. He was asked questions similar to
the following: Is it not probable that your belief in
the prisoner's guilt is derived from hearsay or circum-
stantial evidence? In forming your opinions concern-
ing the guilt of the accused, have you or not been influ-
enced by the remarks of persons whom you regard as
reputable and trustworthy? Are you aware that you
will be submitted to a most searching examination?
Are you acquainted with the penalty attached to the
crime of perjury?

160 THE TRIAL OF JESUS

After this preliminary warning, conveyed in these
questions, had been given, the most learned and vener-
able of the judges administered to the witness the fol-
lowing impressive adjuration:

Forget not, O witness, that it is one thing to give evidence
in a trial as to money, and another in a trial for life. In
a money suit, if thy witness-bearing shall do wrong, money
may repair that wrong. But in this trial for life, if thou
sinnest, the blood of the accused, and the blood of his seed
to the end of time, shall be imputed unto thee. . . . There-
fore was Adam created one man and alone, to teach thee
that if any witness shall destroy one soul out of Israel, he
is held by the Scripture to be as if he had destroyed the world ;
and he who saves one such soul to be as if he had saved the
world. . . . For a man from one signet-ring may strike off
many impressions, and all of them shall be exactly alike. But
He, the King of the kings of kings, He the Holy and the
Blessed, has struck off from His type of the first man the
forms of all men that shall live; yet so, that no one human
being is wholly alike to any other. Wherefore let us think
and believe that the whole world is created for a man such
as he whose life hangs on thy words. But these ideas must
not deter you from testifying from what you actually know.
Scripture declares : " The witness who hath seen or known,
and doth not tell, shall bear his iniquity." Nor must ye scru-
ple about becoming the instrument of the alleged criminal's
death. Remember the Scriptural maxim : " In the destruc-
tion of the wicked, there is joy."

At the close of this solemn exhortation, the examina-
tion of the witness commenced. The Hakiroth, seven
questions prescribed by law, touching the identity of
the prisoner and fixing the elements of time and place,
were asked. They were as follows: Was it during a
year of jubilee? Was it an ordinary year? In what

HEBREW CRIMINAL LAW 161

month? On what day of the month? At what hour?
In what place? Do you identify this person?

These questions being satisfactorily answered, the
next step was a rigid examination into the facts and
circumstances attending the commission of the crime
and the connection of the accused therewith. This
process of examination and cross-examination was
termed the Bedikoth and embraced all questions not
included in the Hakiroth which tended to establish
the guilt or innocence of the prisoner at the bar.

When the witnesses for the Commonwealth of Is-
rael had been examined, witnesses for the defendant
were heard. The accused was also urged to say any-
thing he wished in his own behalf. As we have before
pointed out, the Hakiroth questions as to time and
place could be rebutted only by establishing an alibi
against the witnesses for the state. If such an alibi was
proved, the defendant was acquitted and at once dis-
charged. A contributor to the "Jewish Encyclopedia,"
discussing this point of procedure, says: " It has been
shown under Alibi how a ' set ' of witnesses may be
convicted as ' plotters ' by another set or sets proving
an alibi on them. But the opposite party may prove
an alibi on the convicting set or in some other way
show that the facts testified to by the first set were im-
possible or untrue. Under such circumstances, a mod-
ern judge or jury would weigh the credibility of the
witnesses and the probability of their stories and de-
cide between them accordingly. The sages did not
trust themselves or their successors with this discretion.
If there were no indicia or fraud, they held that as

1 62 THE TRIAL OF JESUS

some one was evidently lying they could not decide
which of them it was, and that there was no evidence
on the point." * The result was an acquittal.

If material contradictions in the testimony of the
witnesses were shown by the Bedikoth, the trial was
at once terminated and the accused was free. The
failure of any witness to answer satisfactorily any of
the seven questions above mentioned entitled the ac-
cused to immediate acquittal. Any material disagree-
ment between the two or more witnesses required by
the law in answer to any of these questions likewise
entitled the prisoner to an immediate discharge. If
the prosecuting witnesses relied upon documentary,
circumstantial or hearsay evidence to convict, their
testimony was at once rejected and the defendant was
released.

But if the accused failed to establish an alibi against
the prosecuting witnesses in the matter of the Haki-
roth; and if the Bedikoth developed evidence fairly
consistent and uncontradictory; and if the testimony
of the witnesses was purely oral, that is, was not docu-
mentary, hearsay or circumstantial, then there was
legally admissible evidence to lay before the Sanhe-
drin. The competent witnesses who could render rele-
vant testimony were then led, one at a time, before the
general body and required to testify.

The Debates and Balloting of the Judges. — All the
evidence, pro and con, having been adduced, the tri-
bunal began a full discussion of the case, preliminary
to casting ballots. Arguments could be begun only on

1 "Jewish Encyc," vol. v. pp. 279, 280.

HEBREW CRIMINAL LAW 163

behalf of the accused. Nothing was permitted to be
said against him until one of the judges had urged
something in his behalf, and had said: " As I view the
matter, and according to such and such evidence, it
seems to me that the prisoner should be acquitted."
The discussion became general for and against the ac-
cused. The entire record was then overhauled. Each
item of evidence was carefully considered and sub-
jected to the minutest criticism. Contradictions were
noted and extenuating facts pleaded. If one of the
disciples occupying one of the three rows of seats
could offer any cogent or valid reason why the pris-
oner should not be convicted, he was invited to take
his seat among the judges, and was regarded as a mem-
ber of the court during the remainder of the day. If
his argument resulted in the acquittal of the accused
and saved a human life he was made a permanent
member of the court. On the other hand, if one of the
disciples had anything to say that would tend to injure
the defendant he was not permitted to raise his voice.
When the entire case had been exhaustively dis-
cussed, the argument was closed and the balloting on
the guilt or innocence of the accused commenced.
The scribes were in readiness to record the votes and
note the reasons assigned therefor. The youngest
members of the tribunal were required to vote first,
in order that they might not be unduly influenced by
the example of their seniors in age and authority.
The high priest, who was generally president of the
Sanhedrin, addressed a gentle admonition to the
youngest member, who was never less than forty years

1 64 THE TRIAL OF JESUS

of age, to render a free and untrammeled verdict, and
not to be awed or influenced by the patriarchs of the
court. This admonition was repeated in the case of
each youthful member of the tribunal. When the bal-
loting commenced, each judge arose in his place and
voted; at the same time making a short speech explana-
tory of his ballot. To secure a conviction it was not
necessary that the members of the Sanhedrin should be
unanimous. Indeed a peculiar rule of Hebrew law
provided that if the verdict was instantaneous and
unanimous it was invalid and could not stand. If the
prisoner had not a single friend in court, the element
of mercy was wanting in the verdict, said the ancient
Hebrews, and the proceedings were regarded in the
light of conspiracy and mob violence. A majority vote
of at least two members was necessary to convict. A
majority vote of one in his favor would acquit. Any
majority amounting to two or more that did not reach
unanimity was sufficient to condemn. If the accused
was tried before a Minor Sanhedrin of three-and-
twenty members or before the Great Sanhedrin with a
bare quorum (twenty-three members, the same number
as the full membership of a Minor Sanhedrin), a vote
of thirteen members was necessary, in either case, to
convict. If eleven judges were for conviction and twelve
for acquittal, the prisoner was discharged at once; a
majority of one vote being sufficient for that purpose.
If twelve were in favor of conviction and eleven for
acquittal, the condemnation of the accused was impos-
sible; a majority of at least two being required to con-
demn. According to some writers, an acquittal was

HEBREW CRIMINAL LAW 165

the result in such a case. According to others, in such
a contingency the following novel expedient was em-
ployed to reach a verdict: From the first row of dis-
ciples two additional judges were selected and added
to the original twenty-three members. Balloting then
commenced anew. If the vote resulted in a majority
of at least two against the prisoner, he stood convicted.
If not, two more disciples were added from the first
row in front and this process of increasing by twos the
number of the Sanhedrin was continued until the
requisite majority was secured. If it happened that
the constant additions finally raised the number to
seventy-one, the membership of the Great Sanhedrin,
the process of increasing by twos was discontinued,
and final balloting then began. If thirty-six voted for
conviction and thirty-five for acquittal, the whole case
was reargued for a reasonable time until one of the
thirty-six yielded and declared in favor of acquittal.
In case the thirty-six members persevered in their de-
termination to convict, the prisoner was discharged.

At any stage of the trial, from the beginning with
the three-and-twenty judges through all the successive
additions of new members, a majority vote of one or
more in favor of the accused would acquit; a majority
of two or more, not amounting to unanimity, would
convict.

In case of an acquittal the prisoner was imme-
diately released and the trial was closed. In the event
of conviction sentence could not be pronounced
until the next afternoon and the session of the court
was accordingly adjourned until the following day.

1 66 THE TRIAL OF JESUS

Upon adjournment the members of the Sanhedrin
with measured step and solemn mien left the cham-
ber in which the trial had been conducted. Out-
side the judgment hall, in the open street, the judges
formed themselves into groups or knots of five or
six to discuss the trial and to lament the awful
misfortune impending over Jerusalem; for such was
the Hebrew conception of the execution of a son of
Israel. The nucleus of each group was formed of
elders of the Sanhedrin; the younger members came
up from behind, leaned over between the shoulders of
the patriarchs, and listened attentively and devoutly
to what they were saying about the case. Gradually
the groups broke up and the judges linked arm in arm,
by twos, walked slowly homeward, still discussing the
facts and arguments adduced at the trial. Finally
they parted and retired to their respective homes. No
heavy food, like meat, and no intoxicating beverage,
were taken for the remainder of the day or during the
night. Nothing was done that would incapacitate
them for correct thinking. At sunset they began to
make calls upon each other for the purpose of exam-
ining more carefully and debating more fully the is-
sues of the case. When these visits were concluded, in
the early evening, each judge retired to the privacy
of his own home to sleep, meditate, and pray. At the
dawn of day, they arose and prepared to resume again
the solemn responsibilities of their office. The morn-
ing sacrifice was offered and the judges again assem-
bled at sunrise in the hall of justice. They reseated
themselves in the form of a semicircle; the prisoner

HEBREW CRIMINAL LAW 167

was again led to the bar of the court; the witnesses
were again produced; and the scribes, bringing with
them the minutes of the former meeting, again took
seats in their accustomed places.

The second part of the trial then began. It must be
remembered that there were two trials of every He-
brew capital case. The second day was not a trial de
novo; but was a proceeding in the nature of an appeal
and was intended to accomplish a review of the pro-
ceedings of the previous day. Additional testimony,
however, which had been discovered after the close of
the first trial, might be introduced. But the record
of facts seems not to have been considered so important
as the question of the fixed opinions of the judges.
Each member of the Sanhedrin was required, on the
second day, to vote again and to declare anew his no-
tions concerning the guilt or innocence of the accused.
The statements of each judge were carefully noted by
the scribes and compared with his statements of the
previous day. If any judge voted for conviction at the
second trial and founded his judgment on reasons and
arguments radically different from those of the first
day, his verdict was rejected. A member who had
voted for acquittal on the first day was not permitted
to change his vote for conviction on the second day.
But one who had voted for condemnation at the first
trial, might, by giving valid reasons, vote on the second
day for acquittal.1

A most striking peculiarity of Hebrew law is to be
noted in their method of counting votes and arriving

1 Benny.

1 68 THE TRIAL OF JESUS

at sums total in favor of or against the accused. Cer-
tain peculiar rules were to be strictly applied in deter-
mining the ultimate result. When upon examination
of the record it was discovered that two or more judges
had advanced identical arguments, though each sup-
ported his contention by different Biblical citations,
their collective opinions were regarded as the common
expression of a single mind and all their votes were
counted only as one. Father and son, teacher and
pupil, being members of the same court, counted also
as one, provided their votes and opinions were arrayed
on the same side, but not when they were placed in
antagonism.1

When the balloting was complete the number for
and against the prisoner was again announced. If a
majority of at least two votes were registered against
him he stood convicted a second time. But the hu-
mane and indulgent spirit of Hebrew law continued to
operate and deferred immediate sentence. The judges
continued to deliberate. No one thought of quitting
the judgment hall on the second day of the trial. No
one ate anything, no one drank anything on this second
day; for the day that was to condemn an Israelite to
death was to be a fast day for those who condemned
him. It was to be a day of prayerful meditation. An-
cient maxims of the Fathers, framed for the protection
of the accused, were reconsidered. All the merciful
tendencies of Talmudic interpretation were invoked
and pleaded by the judges, the defenders of the ac-
cused. It was hoped that a few hours' time would dis-

1 Mendelsohn, p. 144.

HEBREW CRIMINAL LAW 169

cover facts favorable to the doomed man. New argu-
ments, it was thought, might be offered and new
witnesses might be forthcoming in his behalf. As they
continued to deliberate, the fatal hour approached.
There was to be no thirty or sixty days, as in America,
between sentence and execution, during which time
the condemned man could make peace with God. The
moment that saw the judgment finally pronounced wit-
nessed the beginning of its execution. Sunset, Na-
ture's symbol of the extinguishment of the light of life,
was the time fixed for both.

The death march and the final circumstances attend-
ing the execution of a Hebrew prisoner are without
parallel in the jurisprudence of the world. As the cul-
prit was led away to his doom, a man, carrying in his
hand a flag, was stationed at the entrance of the San-
hedrin Hall. A mounted officer of the court followed
the procession at a convenient distance and kept his
eyes constantly turned in the direction of the flag
bearer on the hill. A herald, carrying aloft a staff
from which fluttered a crimson banner, made procla-
mation to the gazing multitude along the way that a
human being was about to be executed. He cried
aloud: " AB is to be put to death on the testimony of
CD and XY, on such and such a charge. If any man
knows anything favorable to the accused, in the name
of God let him come forth and speak, in order that the
prisoner may be led back to the Sanhedrin Hall to be
again confronted and tried by his judges."

If any witness, friend or stranger, came forth to fur-
nish new evidence in favor of the condemned man, the

i7o THE TRIAL OF JESUS

procession was halted and the accused was led back to
the Sanhedrin Chamber. If any member of the court
still sitting in the hall of judgment bethought himself
of any new argument in behalf of the accused that had
not been offered at the trial, he arose quickly in his
place and stated it to his fellow-judges. The flag at
the gate was then waved and the mounted messenger,
chosen for such an emergency, saw it waving and gal-
loped forward to stop the execution.

The culprit himself could delay or prevent the ac-
complishment of the death sentence if he could give to
the Rabbins who escorted him any valid reason why
he should not be put to death. He was led back as
often as he gave any good excuse, not exceeding five
times, the number prescribed by law. If no new wit-
nesses appeared and if the prisoner made no further
plea for life, the procession proceeded to within a
short distance of the place of execution. The convict
was then exhorted to declare himself guilty of the
crime of which he was charged and to make full con-
fession of all his sins. He was told that a full confes-
sion would entitle him to a happy existence beyond
this life, since the flood of death would wash away all
stains of sin and cleanse the soul of all the iniquities of
existence in this world. If the condemned man still
refused to confess that he was guilty of the crime with
which he was charged, he was then urged to say:
" May my death prove an atonement for all my trans-
gressions."

He was then led to the ground of execution. The
death draught, consisting of a mixture of frankincense

HEBREW CRIMINAL LAW 171

and myrrh, poured into a cup of vinegar or light wine,
was then given him. Stupefaction followed, render-
ing the culprit unconscious of his impending doom
and insensible to the agonies of death. In Jerusalem,
this benumbing and stupefying mixture was furnished
by the Hebrew women, whose tender and merciful re-
gard for the wretched and unfortunate of earth has in
all ages been a striking characteristic of the sex. As
soon as the draught had been administered the execu-
tion took place. The prisoner was either stoned, stran-
gled, burned, or beheaded, according to the nature of
his crime. In case of blasphemy or idolatry the dead
body was afterwards hung upon a gallows until dusk.
But ordinarily the corpse was immediately interred
after execution. On the outskirts of every town there
were two graveyards for criminals; in one of these
those who had been burned or stoned were buried ; in
the other were interred those who had been hanged or
beheaded. As soon as decomposition had taken place
— that is, when the flesh had decayed and fallen from
the bones — the relatives were allowed to remove the
skeleton and to deposit it in the family burial ground.
Soon after the execution the friends and relatives of
the dead man made friendly calls upon the judges who
had tried and sentenced him. These visits were in-
tended to show that the visitors harbored no feelings
of bitterness or revenge against those who, in con-
demning one of their loved ones to death, had only
performed the high and righteous duties of just and
honorable judges of Israel.

PART III
THE BRIEF

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THE BRIEF

NUMBER of difficult and con-
fusing questions present them-
selves at the very beginning of
any extensive and impartial in-
vestigation of the trial of Jesus.
Did the Great Sanhedrin ex-
ist at the time of Christ? If it
existed, was it still a legally con-
stituted court, having jurisdic-
tion to try capital offenses? Did it have jurisdiction of
the particular offense with which Jesus was charged?
If the Great Sanhedrin was actually in existence, had
criminal jurisdiction in capital cases, and was judi-
cially empowered to try the offense with which Jesus
was charged, did it actually try Him? Were the rules
of criminal procedure, prescribed in the Mishna and
cited in this Brief, in existence and actively in force in
Judea at the time of the trial of Jesus? What was the
nature of the charge brought against the Christ? Was
Fie guilty as charged? Were forms of law duly ob-
served in the trial of the accusation against Him?
Answers to these questions, which will be considered
in the Brief in the order above enumerated, will cover
the legal aspects of the Hebrew trial of Jesus.

Did the Great Sanhedrin exist at the time of Christ?

175

176 THE TRIAL OF JESUS

The answer to this question is of prime importance,
since the existence of a court having jurisdiction of the
person and subject matter of the suit is a fundamental
consideration in all litigation. It is generally sup-
posed that the Hebrew trial of Jesus took place before
the Great Sanhedrin in Jerusalem. But many able
writers, both Jewish and Gentile, deny that this court
had any existence at the time of Christ. In the " Mar-
tyrdom of Jesus," Rabbi Wise says: "But this body
did positively not exist at the time when Jesus was cru-
cified, having been dissolved 30 A.C. In nowise, then,
any passages of the Gospels must be understood to
refer to the Great Sanhedrin." Many Jewish and sev-
eral eminent Gentile authors agree with this conten-
tion, which is founded upon a passage in Josephus in
which it is declared that King Herod had all the mem-
bers of the Sanhedrin put to death.1 It is contended
by these writers that the supreme tribunal of the Jews
was then abolished and was not restored until subse-
quent to the crucifixion. Opposed to this assertion,
however, is the weight of both reason and authority.
Schiirer is of the opinion that Josephus did not mean
literally " all " ( ttolvtols) when he wrote that Herod
had destroyed all the members of the Great Sanhe-
drin; since in the following book he relates that the
same king caused to be put to death the forty-five most
prominent members of the party of Antigonus, who
must themselves have been members of this court; and
forty-five are twenty-six fewer than seventy-one, the
full membership of the Great Sanhedrin.2 The same

1 Josephus, "Ant.," XIV. 9, 4. 2 Schiirer, 2d div., vol. i. p. 175.

THE BRIEF i77

author asserts the existence and discusses the jurisdic-
tion of this court in the following language: " As re-
gards the area over which the jurisdiction of the Great
Sanhedrin extended, it has already been remarked
above that its civil authority was restricted, in the time
of Christ, to the eleven toparchies of Judea proper.
And, accordingly, for this reason it had no judicial au-
thority over Jesus Christ so long as He remained in
Galilee. It was only as soon as He entered Judea that
He came directly under its jurisdiction." x

Again, Salvador, who may be justly styled the Jew-
ish Blackstone, wrote concerning the condemnation of
Jesus: " The senate declared that Jesus, son of Joseph,
born at Bethlehem, had profaned the name of God in
usurping it for himself, a simple citizen. The capital
sentence was then pronounced." Now, the word
" senate " is properly applied nowhere in literature to
any other Hebrew court than the Great Sanhedrin.
This High Court of the Jews has been frequently com-
pared to the senate of Rome, to the Areopagus of the
Greeks and to the parliament of England. It should
be noted in this connection that the great Jewish writer
not only styled the body that tried Jesus " senate "
(Great Sanhedrin) but stated that it pronounced a
capital sentence, thus declaring that the supreme tri-
bunal of the Jews not only existed at the time of Jesus
but had the right to decree capital punishment.

Edersheim, discussing the alleged abolition of the
Sanhedrin by Herod, says: "The Sanhedrin did exist
during his reign, though it must have been shorn of

1 Schiirer, 2d div., vol. f. p. 184.

178 THE TRIAL OF JESUS

all real power, and its activity confined to ecclesiastical
or semi-ecclesiastical causes. We can well believe that
neither Herod nor the procurators would wish to
abolish the Sanhedrin, but would leave to them the ad-
ministration of justice, especially in all that might in
any way be connected with purely religious questions.
In short, the Sanhedrin would be accorded full juris-
diction in inferior and in religious matters; with the
greatest show, but with the least amount of real rule
or of supreme authority." 1 This is a powerful voice
in favor of the existence of the supreme tribunal of the
Jews at the time of Christ; for Edersheim's " Life and
Times of Jesus the Messiah " is the best and most re-
liable biography of the Savior in any language.

Keim bases his advocacy of the existence of the San-
hedrin at the time of Christ on New Testament au-
thority. " Not only," he says, " does the New Testa-
ment speak of Synedria in the time of Jesus and the
Apostles, but Jesus Himself, in a well-established
utterance, mentions the Synedrion (Sanhedrin) as the
highest legally constituted tribunal and as having the
right to pass the sentence of death." 2

The strongest passage in the New Testament sup-
porting the contention of the existence of the Great
Sanhedrin at the time of the crucifixion is contained
in Acts v. 21 : " But the high priest came, and they that
were with him, and called the council together, and all
the senate of the children of Israel, and sent to the
prison to have them brought." Here, the use of the

1 " Life and Times of Jesus the Messiah," vol. ii. p. 556.

2 "Jesus of Nazara," vol. vi. p. 37.

THE BRIEF 179

words " high priest," " council," and " senate " in the
same connection, strongly suggests, almost accurately
describes, the president and members of the Great San-
hedrin; and besides, the words, " sent to the prison to
have them brought," indicate that this body was exer-
cising judicial functions.

Again, the utterance of Jesus above referred to by
Keim is found in two passages of Matthew. The first
is in Chap. xvi. 21 : " From that time forth began Jesus
to shew unto His disciples, how that He must go unto
Jerusalem, and suffer many things of the elders and
chief priests and scribes, and be killed and be raised
again the third day." The second is in Chap. xx. 18:
" Behold, we go up to Jerusalem; and the Son of man
shall be betrayed unto the chief priests and unto the
scribes, and they shall condemn him to death." The
" elders " and " chief priests " and " scribes " were the
characteristic constituent elements of the Great Sanhe-
drin; and the prophecy, "they shall condemn him to
death," ascribed to them the highest judicial preroga-
tive, the right of passing the death sentence. In his
brilliant essay on the Talmud, Emanuel Deutsch
emphatically says: "Whenever the New Testament
mentions the ( Priests, the Elders, and the Scribes ' to-
gether, it means the Great Sanhedrin." * It is impos-
sible to refrain from contrasting this statement of a
most eminent and learned Jewish writer with that of
Rabbi Wise, also very scholarly and pious, " In no
wise, then, any passages of the Gospels must be consid-
ered to refer to the Great Sanhedrin." Suffice it to

1 "The Talmud," p. 32.

i8o THE TRIAL OF JESUS

say that the weight of authority is with Emanuel
Deutsch. And that which seems to conclusively dis-
prove the whole theory of the nonexistence of the
Great Sanhedrin at the date of the crucifixion, is the
fact that Josephus — whose account of the alleged kill-
ing of all the members of the Sanhedrin by Herod is
the very basis of the theory — in a subsequent chapter,
relating to a subsequent event, describes the summon-
ing of Hyrcanus, former king and high priest, before
the Sanhedrin to be tried by them. As a result of the
trial, Hyrcanus was put to death.1 Such a personage
could have been tried and condemned only by the
Great Sanhedrin, which was in existence subsequent to
the alleged destruction of all its members by Herod.

It is believed that enough has been said to show that
the contention that the Great Sanhedrin did not exist
at the time of Christ is not well founded. As a matter
of reason, the mere destruction of the members of the
court by Herod did not, of necessity, abolish the court
itself. From what we know of the character and pol-
icy of Herod, he simply had the members of an old
and unfriendly aristocracy put to death in order that
he might make room in the court for an entirely new
body friendly to him and devoted to his interests.
Again, it is entirely improbable that the Roman mas-
ters, of whom Herod was but a subject prince and '
tool, would have permitted the destruction of the most
important local institution of a conquered state. The
policy of the Romans in this regard is well known.
Whenever it was consistent with the dignity and safety

1 "Ant." xv. 6, 2.

THE BRIEF 181

of the Roman empire, local institutions were allowed
to remain intact and undisturbed. We are not aware
of any good historical reason why the Great Sanhe-
drin, the national parliament, and the supreme tri-
bunal of the Jews, should have been abolished thirty
years before Christ, as Rabbi Wise and other eminent
scholars and theologians have contended. After all, it
seems to be more a matter of dogma than of history.
The majority of Jewish writers rest their case upon
Josephus, with their peculiar construction of the pas-
sage; the majority of Christian writers quite naturally
prefer the New Testament. But the line is not closely
drawn. Dr. Geikie, the eminent Gentile author, sup-
ports the Jewish opinion, without reference, however,
to the passage in Josephus. On the other hand, Salva-
dor, Edersheim, and Deutsch, all writers of Jewish
blood, support the Christian contention.

The assertion of Graetz that Jesus was arraigned
before one of the Minor Sanhedrins,1 of which there
were two in Jerusalem, is not to be taken seriously,
since these minor courts had no jurisdiction of the
crime with which Jesus was charged.2 It is very evi-
dent from the weight of authority that Jesus was tried
before the Great Sanhedrin, and that this court had
authority to pass sentence of death. Upon this theory,
the author will proceed in framing the Brief.

Did the Great Sanhedrin have jurisdiction to try
capital offenses at the time of the crucifixion? This

1 "History of the Jews," vol. ii. p. 163.

2 "Tribus, pseudo-propheta, sacerdos magnus, non nisi a septuaginta et
unius judicum consessu judicantur." — "Mishna, De Synedriis," i. 5.

1 82 THE TRIAL OF JESUS

question, involving great difficulty and much confu-
sion in discussing the trial of Jesus, arises from the di-
vergent opinions of Bible scholars as to the exact legal
and political status of the Jews at the time of Christ.
Many concede the existence of the Great Sanhedrin at
this time, but insist that it had been shorn of its most
important judicial attributes; that the right to try capi-
tal cases had been wholly taken from it; and that it
retained the legal right to try only petty crimes and
religious offenses not involving the death penalty.
The Jews contend, and indeed the Talmud states that
" forty years before the destruction of the Temple the
judgment of capital causes was taken away from Is-
rael." The great weight of authority, however, is reg-
istered against this view. The New Testament teach-
ings on the subject have just been discussed in the
beginning of the Brief. The opinion generally held by
Bible scholars is that the Great Sanhedrin continued
to exist after the Roman conquest of Judea and after
the time of Herod; that its legislative, executive, and
judicial powers remained substantially unimpaired in
local matters pertaining to the internal affairs of the
Jews; and that the Roman representatives intervened
only when Roman interests required and the sover-
eignty of the Roman State demanded. The question of
sovereignty presented itself, indeed, whenever the ques-
tion of life and death arose; and Rome reserved to her-
self, in such cases, the prerogative of final judicial de-
termination. Both Renan and Salvador hold the view
that the Sanhedrin had the right of initiative, the cog-
nitio causa] that is, the right to try the case. In the

THE BRIEF 183

event of the acquittal of the accused the matter was
finally ended without Roman interference, but in case
of conviction the Roman legate or procurator cer-
tainly might review and probably was required to re-
view the matter, and either affirm or reverse the sen-
tence. This is the prevalent opinion among the best
writers; and is plausible because it is at once consistent
with the idea of the maintenance of Roman sover-
eignty and of the preservation of the local government
of the Jews. However, many able writers, among
them Rosadi and Dupin, assert that the Jews had lost
the right, by virtue of Roman conquest, even to try
capital cases. And it must be admitted that the logic
of law is in their favor, though the facts of history and
the weight of authority are against them.

Did the Great Sanhedrin have jurisdiction of the
particular offense with which Jesus was charged? Ad-
mitting the existence of the Great Sanhedrin at the
time of Christ, and its right to initiate and try proceed-
ings in capital cases with reference to Roman author-
ity, had it jurisdiction, under Hebrew law, of the
special accusation against Christ? On this point there
is little difference of opinion. Jesus was brought
before the Sanhedrin on the charges of sedition and
blasphemy, both of which crimes came within the cog-
nizance of the supreme tribunal of the Jews.1

Was there a regular legal trial of Jesus before the
Great Sanhedrin? Admitting that this court was in

1 "Among the offenses of which it took cognizance were false claims to
prophetic inspiration and blasphemy." — Andrews, "The Life of Our Lord,"
p. 510.

1 84 THE TRIAL OF JESUS

existence at the time of Christ, that it had competence,
with reference to Roman authority, to try capital cases,
and that it had jurisdiction under Hebrew law of the
crime with which Jesus was charged, did it actually
conduct a regular, formal trial of the Christ? Many
able critics give a negative answer to this inquiry.
Jost, one of the greatest and most impartial of Jewish
historians, designates the crucifixion of Jesus " a pri-
vate murder (Privat-Mord) committed by burning
enemies, not the sentence of a regularly constituted
Sanhedrin." * Edersheim supports this view as to the
nature of the trial.2

A certain class of writers base their objection to a
regular trial on the ground of the nonexistence of the
Great Sanhedrin at the time of Christ. If this court
did not exist, they say, there could not have been any
regular judicial proceeding, since this body was the
only Hebrew tribunal that had jurisdiction to try the
offense with which Jesus was charged. Others, who
hold similar views, maintain that the errors were so
numerous and the proceedings so flagrant, according
' to the Gospel account, that there could have been no
• trial at all, and that it was simply the action of a mob.
These writers contend that the members of the Sanhe-
drin acted more like a vigilance committee than a
regularly organized tribunal. Of this opinion is Dr.
Cunningham Geikie.

Still another class of critics insist that the Hebrew
judges exercised only accusatory functions, and that

1 "Gesch. d. Judenth." vol. i. pp. 402-409.

2 "Life and Times of Jesus the Messiah," vol. ii. p. 553.

THE BRIEF 185

the examination of Jesus at night was merely prepara-
tory to charges to be presented to Pilate.

Others still apparently reverse the order, and insist
that the Hebrew trial was the only one; that the duty
of Pilate was merely to review, sanction, and counter-
sign the verdict of the Sanhedrin. Of this class is
Renan, who says: "The course which the priests had
resolved to pursue in regard to Jesus was quite in con-
formity with the established law. The plan of the ene-
mies of Jesus was to convict him, by the testimony of
witnesses and by his own avowals, of blasphemy and of
outrage against the Mosaic religion, to condemn him
to death according to law, and then to get the condem-
nation sanctioned by Pilate." 1 Salvador and Stapfer
agree with Renan that the Hebrew trial was regular
and that the proceedings were legal. On the other
hand, Rosadi, Dupin, Keim and many others denounce
the proceedings in the trial of Jesus as outrageously
illegal.

As to the number of trials, the authorities above
cited seem to be exceptions to the rule. By far the
greater number contend that there were two distinct
trials: a Hebrew and a Roman, separate and yet de-
pendent. The opinion of this class of writers is most
clearly expressed by Innes, who says : " Whether it was
legitimate or not for the Jews to condemn for a capital
crime on this occasion, they did so. Whether it was
legitimate or not for Pilate to try over again an ac-
cused whom they had condemned, on this occasion, he
did so. There were certainly two trials." 2 This is the

1 "Vie de Jesus/' pp. 303, 304. 2 "Trial of Jesus Christ," p. 81.

I

1 86 THE TRIAL OF JESUS

view of the writer of these pages ; and he has, accord-
ingly, divided the general subject into two trials, de-
voting a volume of the work to each. It may be an-
swered, then, that there was a regular trial of Jesus
before the Great Sanhedrin. The relation of this trial
to the Roman proceeding will be more fully discussed
in the second volume of this treatise.

Were the rules of criminal procedure prescribed in
the Mishna and cited in this Brief, in existence and
actively in force in Judea at the time of the trial of
Jesus? This question has been answered in the nega-
tive by several writers of repute. Others have an-
swered that the matter is in doubt. But it is very gen-
erally agreed that an affirmative answer is the proper
one. Out of this question, two others arise: (i) Were
the rules of criminal law, herein cited, obsolete at the
time of the crucifixion? (2) Were they the legal de-
velopments of an age subsequent to that great event?
In either case, their citation, in this connection, is
without reason or justification.

It is a sufficient answer to the first of these questions
that none of the standard works on Hebrew criminal
law classes any of the rules herein stated as obsolete at
the time of Christ. In support of a negative answer
to this question, it may be urged that all of the afore-
said rules were the essential elements of an enlightened
and humane criminal procedure in capital cases at the
date of the crucifixion.

The answer to the second question above suggested
is a more serious matter. It is historically true that the
Mishna was not reduced to writing until two hundred

THE BRIEF 187

years after the beginning of our era. The Jerusalem
Talmud was not redacted until 390 A.D. ; and the Baby-
lonian Talmud, about 365-427 A.D. The question at
once arises: Were the rules of criminal procedure,
which we have herein invoked in the discussion of this
case, the growth of the periods intervening between
the crucifixion of Jesus and these dates? Two valid
reasons give a negative answer to this question. In
the first place, the criminal rules applied in the Brief
are in nearly every case traceable to Mosaic provisions
which were framed more than a thousand years before
the trial of Jesus. In the second place, they could not
have been the developments of a time subsequent to the
crucifixion, because less than forty years, a single gen-
eration, intervened between that event and the fall of
Jerusalem, which was followed by the destruction of
Jewish nationality and the dispersion of the Jews.
This short interval was a period of national decay and
disintegration of the Jewish people and could not have
been, under Roman domination, a formative period in
legal matters. After the fall of Jerusalem, the addi-
tions and developments in Hebrew law were more a
matter of commentary than of organic formation —
more of Gemara than of Mosaic or Mishnic growth.
The decided weight of authority, then, as well as the
greater reason, is in favor of the proposition that the
Hebrew criminal law had reached its full develop-
ment and was still in active force at the time of which
we write.

What was the nature of the charge brought against
Christ at the trial before the Sanhedrin? Was He

1 88 THE TRIAL OF JESUS

guilty as charged? The questions preceding these
were secondary, though important. If the Great San-
hedrin did not exist at the time of Christ, we are
forced to believe and admit that the men who arrested
and examined Jesus at night were nothing more than
an irresponsible rabble, acting without judicial au-
thority or legal excuse. If it was without criminal ju-
risdiction, though in existence, we have erroneously
spoken of a Hebrew trial. If the rules of criminal
procedure which we have invoked were not in exist-
ence at the time of the crucifixion, we have proceeded
upon a false hypothesis. Fortunately, the weight of
authority, in every case, is so overwhelmingly in our
favor, and our contention is, in each case, so well
founded in reason, that we feel justified in now pro-
ceeding to a discussion of the real merits of the case,
involved in answers to the questions: What was the na-
ture of the charge or charges brought against Jesus at
the Hebrew trial? Was He guilty as charged?

The accusations against Christ were numerous, both
in and out of court; and it will help to simplify mat-
ters and to arrive at a clear understanding, if, in the
very beginning, the distinction be made and held in
mind between judicial and extra-judicial charges. By
judicial charges are meant those made at the time of
the examination of Jesus by the Sanhedrin, assembled
at night in the palace of Caiaphas. By extra-judicial
charges are meant those made out of court at divers
times and places in Jerusalem, Galilee, and elsewhere
by the accusers of the Christ, and especially by the
spies who dogged His footsteps during the last days of

THE BRIEF 189

His ministry on earth. Ordinarily, it would be proper,
in a work of this kind, to consider only charges made
after the trial of the accused had begun, and jeopardy
had attached. All others are extra-judicial and are
entitled to only passing notice. It would be proper to
omit them altogether, if they did not serve to throw
much light upon the specific charges at the trial.
An excellent summary of the extra-judicial charges
brought against Jesus at various times in His career,
is given in Abbott's " Jesus of Nazareth," p. 448 : " It
was charged that He was a preacher of turbulence
and faction; that he flattered the poor and inveighed
against the rich; that He denounced whole cities, as
Capernaum, Bethsaida, Chorazin; that He gathered
about Him a rabble of publicans, harlots, and drunk-
ards, under a mere pretense of reforming them; that
He subverted the laws and institutions of the Mosaic
commonwealth, and substituted an unauthorized leg-
islation of His own; that He disregarded not only all
distinctions of society, but even those of religion, and
commended the idolatrous Samaritan as of greater
worth than the holy priest and pious Levite; that,
though He pretended to work miracles, He had inva-
riably refused to perform them in the presence and at
the request of the Rabbis of the Church; that He had
contemned the solemn sanctions of their holy religion,
had sat down to eat with publicans and sinners with
unwashen hands, had disregarded the obligations of
the Sabbath, had attended the Jewish feasts with great
irregularity or not at all, had declared that God could
be worshiped in any other place as well as in his

X

i9o THE TRIAL OF JESUS

Holy Temple, had openly and violently interfered
with its sacred services by driving away the cattle
gathered there for sacrifice."

These different charges were doubtless present in
the minds and hearts of the members of the Sanhedrin
at the time of the trial, and probably influenced their
conduct and entered into their verdict. But only one
or two of these accusations can be said to have any di-
rect connection with the record in this case, and, conse-
quently, can be only indirectly considered in discuss-
ing its merits.

We come now to examine the actual charges made
at the night trial before the Sanhedrin. The subse-
quent charges before Pilate have no place in this vol-
ume. A review of the proceedings at the time of the
examination in the palace of Caiaphas reveals two dis-
tinct charges: one preferred by witnesses who had been
summoned by the Sanhedrin, the other preferred by
Caiaphas himself.

First, according to Matthew, " At the last came two
false witnesses, and said, This fellow said, I am able
to destroy the temple of God, and to build it in three
days." 1 The same testimony is thus reported by
Mark: "And there arose certain, and bare false wit-
ness against him, saying, We heard him say, I will
destroy this temple that is made with hands, and
within three days, I will build another made without
hands." 2 Luke and John do not discuss the night trial
before the Sanhedrin, and therefore make no reference
to the charges brought forward by the false witnesses.

1 Matt. xxvi. 60, 61. 2 Mark xiv. 57, 58.

THE BRIEF 191

The second accusation made against Jesus is that by
Caiaphas himself, who embodies his charge in the
form of an oath or adjuration which he administered
to the accused: " I adjure thee by the living God that
thou tell us whether thou be the Christ, the Son of
God." Then come the confession and condemnation.
"Jesus saith unto him, Thou hast said: nevertheless I
say unto you, Hereafter shall ye see the Son of man sit-
ting on the right hand of power, and coming in the
clouds of heaven. Then the high priest rent his
clothes, saying, He hath spoken blasphemy, what fur-
ther need have we of witnesses? behold, now ye have
heard his blasphemy. What think ye? They answered
and said, He is guilty of death." x

These few words of Scripture are the essential parts
of the record of fact of the most awful trial in the his-
tory of the universe. An analysis of the evidence
shows the existence of two distinct charges : that pre-
ferred by the false witnesses, accusing Jesus of sedi-
tion; and that of blasphemy made by Caiaphas him-
self.

Concerning the testimony adduced in support of the
first charge, Mark says: " For many bare false witness
against him, but their witness agreed not together." 2
Now, we have seen that the concurrent testimony of at
least two witnesses, agreeing in all essential details,
was necessary to sustain a conviction under Hebrew
law. If one witness against the accused contradicted
any other witness against the accused, all were re-
jected. Under this rule of law, when " their witness

1 Matt. xxvi. 64-66. 2 Mark xiv. 56.

1 92 THE TRIAL OF JESUS

agreed not together," according to Mark, the charge
of sedition was abandoned, and the accusation of blas-
phemy then followed, which resulted in a confession
and condemnation. Later on, in another place, we
''shall discuss the illegality of a double accusation, in
the same breath and at the same trial. But at this point
we have no further interest in the abandoned charge,
except to say that the false witnesses, in their ignorance
and blindness, failed to grasp the Master's allegorical
language in reference to the destruction of the Tem-
ple. Their worldly-mindedness and purely physical
conception of things centered their thoughts upon the
Temple at Jerusalem, and gave a purely temporal and
material interpretation to His words. " Forty and six
years was this temple in building, and wilt thou rear
it again in three days? " 1 This question asked by the
original auditors, shows a total misconception of the
true meaning of the language of Jesus. The spiritual
allusion to the resurrection of His own body seems
never to have penetrated their thoughts. Then, again,
their general statement was, in effect, an absolute mis-
representation. By perverting His language, He was
made to utter a deliberate threat against a national in-
stitution, around which clustered all the power, sanc-
tity, and glory of the Hebrew people. He was made
to threaten the destruction of the Temple at Jerusalem.
But it is most reasonable to infer from the entire evi-
dence as contained in the Sacred Writings that the
words imputed to Jesus by the false witnesses were not
those which He actually used. In reality, He did not

1 John ii. 20.

THE BRIEF 193

say: " I can destroy" or " I will destroy"; but, sim-
ply, " Destroy." " Destroy this temple, and in three
days I will raise it up." 1 This is evidently a purely
hypothetical expression and is equivalent to " Suppos-
ing you destroy this temple." St. John, in whose
presence, it seems, this language was used, correctly
interprets the Savior's meaning when he says: "He
spake of the temple of his body." 2

The evidence of the false witnesses was so con-
tradictory that even wicked judges were forced to
reject it and to conduct the prosecution on another
charge.

We come now to consider more closely the real ac- \
cusation upon which Jesus was condemned to death. I
At first glance, there seems to be no difficulty in deter-
mining what this accusation was, since the Gospel
record specifically mentions the crime of blasphemy.
It was for this offense that Caiaphas pronounced judg-
ment against Jesus with the unanimous approval of his
fellow-judges. " 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." But what had
they heard that constituted blasphemy? Nothing /
more than His own confession that He was " the
Christ, the Son of God." This seems simple enough
upon its face; but a vast mass of acrimonious discus-
sion has resulted from these few passages of* Scripture.
The main difficulty turns upon the meaning of the
word " blasphemy," as used by the high priest in pass-

1 John ii. 19. 2 John ii. 21.

i94 THE TRIAL OF JESUS

ing condemnation upon Jesus. The facts adduced at
the trial, or rather the facts suggested by the oath or
adjuration addressed to Jesus, as to whether or not He
was " Christ, the Son of God," did not, in the opinion
of many, constitute blasphemy under the definition of
that term given in the Mosaic Code and interpreted by
the Rabbinic writers whose opinions have been em-
bodied in commentaries upon the Mishna. Eminent
Jewish writers have ridiculed the idea of attempting
to make a case of blasphemy out of a mere claim of
being a " Son of God." Rabbi Wise, in " The Mar-
tyrdom of Jesus," has very tersely stated the Jewish
position on the subject. " Had Jesus maintained," he
says, " before a body of Jewish lawyers to be the Son
of God, they could not have found him guilty of blas-
phemy, because every Israelite had a perfect right to
call himself a son of God, the law (Deut. xiv. i) stat-
ing in unmistakable words, ' Ye are sons of the Lord,
your God.' When Rabbi Judah advanced the opin-
ion, ' If ye conduct yourselves like the sons of God, ye
are; if not, not,' there was Rabbi Mair on hand to con-
tradict him: i In this or in that case, ye are the sons of
the Lord your God.' No law, no precedent, and no
fictitious case in the Bible or the rabbinical literature
can be cited to make of this expression a case of blas-
phemy. The blasphemy law is in Leviticus (xxiv.
15-20), which ordains, 'If any man shall curse his
God (i. e., by whatever name he may call his God), he
shall bear i s sin,' but the law has nothing to do with
it, dictates no punishment, takes no cognizance thereof.
' But he who shall curse the name of Jehovah, he shall

THE BRIEF 195

surely be put to death,' be the curser native or alien.
Another blasphemy law exists not in the Pentateuch.
The ancient Hebrews expounded this law, that none is
guilty of blasphemy in the first degree, unless he curses
God himself by the name of Jehovah; or, as Maimon-
ides maintains, by the name Adonai. The penalty of
death is only threatened in the first degree. The
Mishna states expressly as the general law, ' The blas-
phemer is not guilty, unless he (in cursing the Deity)
has mentioned the name itself ' (of Jehovah or Ado-
nai), so that there can be no doubt whatever that such
was the law in Israel. It is clear that the statements
made by Mark, in the name of Jesus, had nothing in
the world to do with the blasphemy laws of the
Jews." 2

Rabbi Wise was concededly an able and accom-
plished theologian; and in a general way the above
extract states the truth. But it does not state the whole
truth, and in one or two places is certainly erroneous.
Leviticus xxiv. 15-20 is undoubtedly the blasphemy
statute of the Mosaic Code. But Mr. Wise was assur-
edly wrong when he stated that " another blasphemy
law exists not in the Pentateuch." For, if this were a
correct statement, other eminent Jewish authorities, as
well as many Gentile authors, would be all at sea. Be-
sides, the New Testament use of the word " blas-
phemy," in many places, would only serve to illustrate
the dense ignorance of the Jews of the time of Jesus
as to the meaning of the term, if the author of " The
Martyrdom of Jesus " were right.

1 "The Martyrdom of Jesus," pp. 75-77.

J96 THE TRIAL OF JESUS

In this connection, let us now consider another Jew-
ish authority, as able and even more famous than the
one just cited. In Salvador's celebrated treatise en-
titled " Histoire des Institutions de Mo'ise," he devotes
a chapter to the question of the judgment and condem-
nation of Jesus. Touching the nature of the charge
against Christ and the real cause of His conviction, he
says: "But Jesus, in presenting new theories and in
giving new forms to those already promulgated,
speaks of himself as God; his disciples repeat it; and
the subsequent events prove in the most satisfactory
manner that they thus understood him. This was
shocking blasphemy in the eyes of the citizens: the law
commands them to follow Jehovah alone, the only true
God; not to believe in gods of flesh and bones, resem-
bling men or women; neither to spare or listen to a
prophet who, even doing miracles, should proclaim a
new god, a god neither they nor their fathers had
known. The question already raised among the people
was this: Has Jesus become God? But the Senate hav-
ing adjudged that Jesus, son of Joseph, born in Beth-
lehem, had profaned the name of God by usurping it
to himself, a mere citizen, applied to him the law in
the 13th Chapter of Deuteronomy and the 20th verse
in Chapter 18, according to which every prophet, even
he who works miracles, must be punished when he
speaks of a god unknown to the Jews and their fathers:
the capital sentence was pronounced."

Here we have the doctors divided; Wise saying that

\ " another blasphemy law exists not in the Pentateuch,"

and Salvador contending that Jesus was legally con-

THE BRIEF 197

victed of blasphemy under the Mosaic Law as it was
laid down, not in Leviticus xxiv. 15-20, but in Deu-
teronomy xiii.

The law in Deuteronomy is peculiarly impressive in
its relationship to the charges against Jesus.

" If there arise among you a prophet, or a dreamer
of dreams, and giveth thee a sign or a wonder, And the
sign or the wonder come to pass, whereof he spake
unto thee, saying, Let us go after other gods, which
thou hast not known, and let us serve them; Thou shalt
not hearken unto the words of that prophet, or that
dreamer of dreams: for the Lord your God proveth
you, to know whether ye love the Lord your God with
all your heart and with all your soul. Ye shall walk
after the Lord your God, and fear Him, and keep His
commandments, and obey His voice, and ye shall serve
Him, and cleave unto Him. And that prophet, or that
dreamer of dreams, shall be put to death; because he
hath spoken to turn you away from the Lord your
God, which brought you out of the land of Egypt and
redeemed you out of the house of bondage, to thrust
thee out of the way which the Lord thy God com-
manded thee to walk in." x

The position of Rabbi Wise cannot be defended by
trying to identify this passage with the one in Leviti-
cus. The law in Deuteronomy has reference to that
form of blasphemy which is nearly identical with
idolatry, that is, seducing the people from their alle-
giance to Jehovah, and inducing them to go off after
strange gods. The law in Leviticus applies peculiarly

1 Deut. xiii. 1-5.

198 THE TRIAL OF JESUS

to profane epithets and to curses hurled at Jehovah
Himself.

Again, Rabbi Wise ridicules the notion that Caia-
phas and the Sanhedrists attempted to twist the use of
the words " Son of God " into a crime. He is right
when, quoting Deuteronomy xiv. I, he says that "every
Israelite had a perfect right to call himself a son of
God." But here again the eminent theologian has
stopped short of the entire truth. It is not at all proba-
ble that he would have contended that " every Israelite
had a perfect right to call himself the son of God " in
the sense of being equal with God Himself. Should
reply be made that such would be an unwarranted con-
struction of Christ's confession that he was " the
Christ, the Son of God," then the opinion of Salvador
would be again invoked. In a note to the " Jugement
de Jesus," he says: " I repeat that the expression ' Son
of God ' includes here the idea of God Himself."

We are not in a position, nearly two thousand years
after the event occurred, to tell exactly what was in
the mind of Caiaphas at the time. But, in view of the
condemnation which he passed, and of the language
which he used in passing it, we are certainly justified
in supposing that he deliberately and designedly con-
nected the two titles — " the Christ " and " the Son of
God " — to see if Jesus would assume responsibility for
both, or if He would content himself with the simple
appellation, " son of God," to which every pious Is-
raelite was entitled. The reply of Jesus, " Thou hast
said/' meaning " I am " the Christ, the Son of God,
was an affirmation of His identity with the Father.

THE BRIEF 199

The condemnation for blasphemy immediately fol-
lowed. Such a sentence would have been inconsistent
with any other theory than the assumption that Jesus
had claimed equality with God, or had arrogated to
Himself power and authority which belonged alone to
Jehovah. This definition of blasphemy is certainly
different from that laid down in Leviticus xxiv. 15-20.

As a matter of history, it is really true that both the
Old and New Testaments reveal not only the existence
of more than one blasphemy statute in the Mosaic
Code, but also more than one conception and defini-
tion of blasphemy at different periods in the develop-
ment of the Hebrew people.

In II Samuel xii. 14 the word " blaspheme " is used
in the sense " to despise Judaism." In I Mace. ii. 6
blasphemy means " idolatry." In Job ii. 5; II Kings
xix. 4-6; Hosea vii. 16, the term indicates " reproach,"
" derision."

Not only might God be blasphemed, but the king
also, as his representative. The indictment against
Naboth was: "Thou didst blaspheme God and the
king." x The people of Jehovah and his Holy Land
might also become victims of blasphemy.2

The New Testament writers frequently charge the
Jews with blaspheming Jesus, when they use insulting
language toward Him, or deny to Him the credit that
is His due.3

In Revelation, St. John tells that he " saw a beast
rise up out of the sea, having seven heads and ten

1 I Kings xxi. 10. 2 Isa. HI. 5; Ezek. xxxv. 12.

3 Luke xxii. 65; Acts xiii. 45; xviii. 6.

aoo THE TRIAL OF JESUS

horns, and upon his horns ten crowns, and upon his
heads the name of blasphemy. And he opened his
mouth in blasphemy against God, to blaspheme his
name, and his tabernacles, and them that dwell in
heaven." 1 This beast was the symbolical Antichrist,
and his blasphemy was simply the treasonable opposi-
tion of the antichristian world to God and His
kingdom.

A comprehensive meaning of " blasphemy," in the
various senses above suggested, is conveyed by the defi-
nition of the term " treason " under the governments
of Gentile commonwealths. A single statute, 25 Edw.
iii. c. 2, defines seven different ways of committing
treason against the king of England.2 The lex Julia
majestatis, promulgated by Augustus Caesar, was a sin-
gle statute which comprehended all the ancient laws
that had previously been enacted to punish trans-
gressors against the Roman State.3 There was no par-
ticular statute, as Rabbi Wise would have us believe,
among the ancient Hebrews, that defined all forms of
blasphemy against Jehovah. But a very clear notion
of the various phases of blasphemy may be had if we
will keep in mind the various definitions of treason
under modern law.

It should not be forgotten that the ancient Hebrew
Commonwealth was a pure theocracy; that Jehovah
was king; that priests, prophets, and people were
merely the subjects and servants of this king; that its
government and its institutions were the products of

1 Revelation xiii. 1-6. 2 " Blackstone," vol. ii. pp. 75-84.

3Greenidge, "Legal Procedure of Cicero's Time," pp. 427, 507, 518.

THE BRIEF 201

his brain ; and that the destinies of the people of Israel,
the " chosen seed," were absolutely in his keeping and
subject to his divine direction and control. It should
also be remembered that the God of Israel was a most
jealous God; that the greatest irritant of His wrath
was any encroachment upon His rights as ruler of men
and creator of the universe; that for the protection of
His sovereignty, He had proclaimed to His people
through His servant Moses the most stringent statutes
against any profanation of His name or disloyalty to
His person. The Decalogue was the great charter of
Jehovah for the government of His children. The
first three commandments were special statutes in-
tended to excite their gratitude and insure their attach-
ment. He reminds them of the circumstances of their
deliverance, and warns them, under severe penalty,
against going off after strange gods.

But, not content with these, He had still other stat-
utes proclaimed, furnishing safeguards against idola-
try and insuring loyalty to His person.1 At the time
of the establishment of the Hebrew theocracy, idolatry
was everywhere to be found. Not only were the
neighboring peoples worshipers of idols, but the Is-
raelites themselves were prone to idolatry and to run-
ning of! after strange gods. The worship of the
Golden Calf is a familiar illustration of this truth.
Thus the Commonwealth of Jehovah was threatened
not only with idolatrous invasion from without but
with idolatrous insurrection from within. Hence the
severity of the measures adopted for the protection of

1 Deut. iv. 15, 16; Deut. xiii.

202 THE TRIAL OF JESUS

His kingdom, His person, and His name, not only
against idolaters but against necromancers, witches,
sorcerers, and all persons who pretended to supernatu-
ral powers that did not proceed directly from Jehovah
Himself. The enforcement of and obedience to these
various statutes required an acknowledgment of the
power and authority of Jehovah in every case where
prophecies were foretold, wonders worked, and super-
natural powers of any kind exhibited. And through-
out the Sacred Scriptures, in both the Old and New
Testaments, we find traces of the operation of this law.
Sometimes it is an instance of obedience, as when
Pharaoh wanted to credit Joseph with the power of
interpreting dreams. " And Joseph answered Pha-
raoh, saying, It is not in me: God shall give Pharaoh
an answer of peace." 1 At other times, it is an act of
disobedience. To satisfy the thirsty multitude Moses
smote the rock and brought forth water at Meribah.
But instead of giving the Lord credit for the act,
Moses claimed it for Aaron and himself, saying,
" Hear now, ye rebels : must we fetch you water out of
this rock? " Whereupon Jehovah grew very angry
and said to Moses and Aaron: " Because ye believe me
not, to sanctify me in the eyes of the children of Israel,
therefore ye shall not bring this congregation into the
land which I have given them." 2 As punishment for
this blasphemous conduct, neither Moses nor Aaron
was permitted to enter the Promised Land.3 And that
this omission to give due acknowledgment to the
Lord for the miraculous flow of water was treasonable

1 Gen. xli. 16. 2Num. xx. 10-12. 3 Num. xx. 20-24.

*

THE BRIEF 203

or blasphemous under the wider interpretation of the
term, cannot be doubted.

From the foregoing remarks it is clear that blas-
phemy among the ancient Hebrews was subject to a
twofold classification: (1) A verbal renunciation and
profane speaking of the name of Jehovah. To this
kind of blasphemy the provision in Leviticus xxiv.
15-20 was applicable. This was blasphemy in its gen-
erally accepted but narrower and more restricted
sense. This kind of blasphemy indicated a most de-
praved and malignant state of mind, and to secure a
conviction it was necessary to show that the word " Je-
hovah " or " Adonai " had been pronounced. (2)
" Every word or act, directly in derogation of the sov-
ereignty of Jehovah, such as speaking in the name of
another god, or omitting, on any occasion that re-
quired it, to give to Jehovah the honor due to His own
name." 1 This form of blasphemy was nearly the same
as treason under modern governments, and included
all offenses that threatened the usurpation of the
throne of Jehovah, the destruction of His institutions,
and that withheld from Him due acknowledgment of
His authority and authorship in all matters of miracle
and prophecy.

Returning to the trial in the palace of Caiaphas, let
us again consider the question: Was Jesus guilty of
blasphemy under any of the definitions above given?
Had He ever cursed the name of Jehovah and thereby
brought Himself within the condemnation of the law,
as laid down in Leviticus xxiv. 15-20? Certainly not.

1 Greenleaf, "Testimony of the Evangelists," p. 555.

204 THE TRIAL OF JESUS

Every word uttered by Him at the trial, as well as
every other expression elsewhere uttered at any time
or place, was said with reverence and awe and love in
praise and glorification of the name and person of Je-
hovah.^ Rabbi Wise ridicules the notion that Jesus
was ever tried upon the charge of blasphemy, because
it is not recorded anywhere that He ever used any but
tender and affectionate language in speaking of the
Heavenly Father.

Had Jesus blasphemed, in the sense of " despising
Judaism," and thereby brought Himself within the
purview of the rule as exemplified in II Sam. xii. 14?
Certainly not. There is no record anywhere that He
despised Judaism. Jesus revered both the Law and
the Prophets. He claimed that He came to fulfill, not
to destroy them.1 He frequently denounced Pharisaic
formalism and hypocrisy, but at the same time He was
a most loyal Jew and a devoted son of Israel.

Had He blasphemed by working wonders in His
own name, and omitting to give Jehovah credit for
them; and did He thereby bring Himself within the
condemnation of the rule exemplified by Moses and
Aaron in the matter of striking water from the rock
at Meribah? We are forced to answer this question
in the affirmative. If we regard Jesus as a mere man,
a plain citizen, like Moses, the New Testament dis-
closes many infractions of the Law in His prophecies
and miracles. It is true that in John v. 19 it is said,
" Verily, verily, I say unto you, The Son can do noth-
ing of himself, but what he seeth the Father do."

1 Matt. v. 17.

THE BRIEF 205

Here He affirmed that the power was from God and
not from Himself. Again, having raised Lazarus
from the dead, Jesus said, " Father, I thank thee that
thou hast heard me," * thus acknowledging the inter-
vention of Jehovah in the performance of the miracle.
In several other places He gave the Father credit for
the act of the Son. But these were exceptions, isolated
cases. The Law required an express acknowledgment
in every case of prophecy or miracle working. " Thus
saith the Lord " was either the prologue or epilogue
of every wonder-working performance. In all the
miracles wrought by him in Egypt Moses had given
due credit to Jehovah. But this was not enough. He
was made an example for all time when he failed to
make acknowledgment in the matter of striking the
water from the rock. Now Jesus worked many mira-
cles in no other name than His own, and in so doing
brought Himself within the operation of the rule and
of the precedent established in the case of Moses and
Aaron. The curing of the bloody issue,2 the stilling
of the tempest,3 the chasing of the devils into the sea,4
the raising of Jairus' daughter,5 and of the son of the
widow of Nain 6 from the dead, were done without
any mention of the power and guidance of Jehovah.

But these transgressions were extra-judicial offenses
and have been discussed merely as an introduction

1 John xi. 41.

2 Matt. ix. 20-22; Mark v. 25-34; Luke viii. 43-48.

3 Matt. viii. 24-26; Mark iv. 37-39; Luke viii. 23-25.

4 Matt. viii. 28-32; Mark v. 1-13; Luke viii. 26-33.

5 Matt. ix. 18-26; Mark v. 22-42; Luke viii. 41-55.

6 Luke vii. 12-15.

206 THE TRIAL OF JESUS

throwing light upon the specific charge at the trial,
that Jesus had claimed to be " the Christ, the Son of
God." The question of the high priest is meaningless,
unless interpreted in the light of knowledge which we
know the members of the Sanhedrin had regarding the
wonder-working performances of the Christ. The
failure of Jesus to acknowledge the power of Jehovah
in working miracles might be interpreted as a tacit
avowal that He Himself was Jehovah, and that there-
fore no acknowledgments were necessary. The silence
itself was a proclamation of the divinity that was in
Him, which placed Him above a law intended to gov-
ern the conduct of men like Moses and Aaron.

We are now prepared to consider the final question:
Had Jesus blasphemed, when He confessed to the high
priest that he was "the Christ, the Son of God"?
Had He blasphemed in that wider sense which Salva-
dor has interpreted as being the Jewish notion of blas-
phemy at the time of Christ; that is, by claiming at
once the attributes of the Messiah and the Son of God?
Had He asserted an equality with God which looked
to a usurpation of His power and the destruction of
His throne; that is, did the confession of Jesus that He
was l'~ Christ, the Son of God," suggest a rivalry be-
tween Him and Jehovah which might result in the de-
thronement of the latter and the substitution of the
former as the Lord and King and Ruler of Israel?
Regarding Jesus as a mere man, a plain citizen, an
affirmative answer to any one of these questions would
convict Him of blasphemy, according to the Jewish
interpretation of that term at the time of Christ; for

THE BRIEF 207

the Hebrew Jehovah had repeatedly proclaimed that
He was a jealous God, and that He would brook
neither rivals nor associates in the government of His
kingdom.

That Jesus had more than once identified Himself
with Jehovah, and had claimed divine attributes and
powers; and that the Jews regarded all these preten-
sions as blasphemous, is evident, and can be ascer-
tained from more than one passage of New Testament
Scripture. On one occasion the Savior said to one sick
of palsy: " Son, be of good cheer; thy sins be forgiven
thee. And, behold, certain of the Scribes said within
themselves, This man blasphemeth." 1 According to
Luke, they said: "Who is this man which speak-
eth blasphemies? Who can forgive sins but God
alone?"2 Here, according to the Scribes and Phari-
sees, Jesus had blasphemed by claiming the power
which alone belonged to Jehovah, that of forgiving
sins; or, at least, by exercising a supernatural power
without acknowledging the authorship and guidance
of the Almighty. It should be remembered that in
this instance of alleged blasphemy Jesus had not re-
motely cursed or profaned the name of Jehovah; but,
according to Jewish notions of the times, had exercised
a prerogative, that of forgiving' sins, which belonged
solely to Jehovah, without giving credit,
v Again, we read this passage in the New Testament:
" Therefore the Jews sought the more to kill him, be-
cause he not only had broken the Sabbath, but said also
that God was his Father, making himself equal with

1 Matt. ix. 2, 3. 2 Luke v. 21.

208 THE TRIAL OF JESUS

God." 1 Here we see that the Jews of the days of
Jesus, as well as Salvador in our own day, construed
the claims of Jesus to be " the Christ, the Son of God,"
as an assertion of equality with Jehovah,

Again, on another occasion, Jesus said emphati-
cally: " I and my Father are one. Then the Jews took
up stones again to stone him. Jesus answered them,
Many good works have I shewed you from my
Father; for which of those works do ye stone me?
The Jews answered him, saying, For a good work, we
stone thee not; but for blasphemy; and because that
thou, being a man, makest thyself God." 2 Even be-
fore this bold declaration of His identity with Jeho-
vah, He had intimated that He was of Heavenly
origin and had enjoyed a divine preexistence. He had
declared that He was the " Bread which came down
from Heaven," 3 and that " Before Abraham was, I
am." 4 The Jews regarded His statement that He had
lived before Abraham as blasphemy, and " took up
stones to cast at him," this being the usual punishment
for blasphemous conduct.

We have said enough to emphasize the point that
there was another kind of blasphemy known to the
Jews of the days of Jesus than that prescribed in Le-
viticus; and that the confession of being " Christ, the
Son of God," as the Jews and Caiaphas interpreted the
term, brought Jesus within the meaning of blasphemy,
in its wider signification — that of assuming equality
with God. The numerous illustrations above fur-

1 John v. 1 8. 3 John vi. 41.

2 John x. 30-33. 4 John viii. 58.

THE BRIEF 209

nished were given to provide means of clear interpre-
tation of the term blasphemy, as used in the condemna-
tory sentence of the high priest. For it is clearly
evident that he and the other judges must have had
many charges against Jesus in mind other than those
that appear in the record of the trial. But we repeat,
these extra-judicial charges must be considered only
for purposes of correct interpretation and as a means
of throwing light upon the actual proceedings in the
night trial before the Sanhedrin. We further repeat
that the New Testament furnishes abundant evi-
dence that Jesus the man, the Jewish citizen, had, at
divers times and places, committed blasphemy against
Jehovah, under a strict interpretation of the law of
God.

Mr. Simon Greenleaf, the great Christian writer on
the Law of Evidence and the Harmony of the Gospels,
has thus tersely and admirably summarized the matter
from the lawyer's point of view: " If we regard Jesus
simply as a Jewish citizen, and with no higher charac-
ter, this conviction seems substantially right in point
of law, though the trial were not legal in all its forms.
For, whether the accusation were founded on the first
or the second command in the Decalogue, or on the
law laid down in the thirteenth chapter of Deuteron-
omy, or on that in the eighteenth chapter and the twen-
tieth verse, he had violated them all by assuming to
himself powers belonging alone to Jehovah. It is not
easy to perceive on what ground his conduct could
have been defended before any tribunal, unless upon
that of his superhuman character. No lawyer, it is

210 THE TRIAL OF JESUS

conceived, would think of placing his defense upon
any other basis." *

But, at this point, the reader would do well to
discriminate very carefully between certain matters
touching the most vital features of the controversy.
Certain well-defined distinctions must be observed,
else an erroneous conclusion will inevitably follow.

In the first place, proper limitations must be applied
to the person and character of Jesus before it can be
truthfully said that His conviction by the Sanhedrin
was " substantially right in point of law." It must be
remembered that, in this connection, Jesus is regarded
merely as a man, " a Jewish citizen," to use Green-
leaf's phrase. His divine character, as the only-begot-
ten Son of God, as the Second Person of the Trinity,
as the Savior of the human race, is not considered.
But the reader may object, and with reason, that this
is begging the question; and is therefore an inexcus-
able evasion; since the real issue before the Sanhedrin
was this: Is Jesus God? And to strike the Godhead
of Jesus from the discussion is to destroy the real issue,
and to place the judgment of the Sanhedrin upon an
irrelevant and immaterial basis. There is much truth
in this contention, since it is clearly evident that if
Jesus was actually God, " manifest in the flesh," He
was not guilty; if He was not God, He was guilty.

Fortunately for the purposes of this treatise, the le-
gality or the illegality of the proceedings in the trial
of Christ is not so much related to the question of sub-
stance as to that of form. Whether Jesus were God or

1 "Testimony of the Evangelists," p. 562.

THE BRIEF 211

not is a question involving His divinity, and is a prob-
lem peculiarly within the domain of the theologian.
Whether legal rules were duly observed in the trial
of Christ, were He man or God, is a question involv-
ing His civil rights, and belongs to the domain of the
lawyer. Unless this distinction be recognized and
held in mind, the treatment of this theme from a legal
standpoint has no justification. This contention is all
the more certainly true, since proof of the divinity of
Jesus, a spiritual problem, would rest more upon the
basis of religious consciousness and experience, than
upon historical facts and logical inferences.

The author of these volumes believes that Jesus was
divine, and that if He was not divine, Divinity has
not touched this globe. The writer bases his convic-
tion of this fact upon the perfect purity, beauty, and
sinlessness of Jesus; upon the overwhelming historical
evidence of His resurrection from the dead, which
event " may unhesitatingly be pronounced that best es-
tablished in history";1 as well as upon the evident
impress of a divine hand upon genuine Christian civ-
ilization in every age.

But the historic proofs of the divinity of Christ that
have come down to us through twenty centuries were
not before the Sanhedrin. A charitable Christian
criticism will be slow in passing unmerciful judgment
upon the members of that court for denying the claims
of Jesus to identity with God, when His own disciples
evidently failed to recognize them. The incidents of
the Last Supper clearly prove that those who had been

1 Edersheim, "Life and Times of Jesus the Messiah," vol. ii. p. 629.

2i2 THE TRIAL OF JESUS

intimately associated with Him during three eventful
years did not, at the close of His ministry, fully com-
prehend His character and appreciate His message
and His mission.1 Were comparative strangers to
Him and His teachings expected to be more keenly
discerning? After John had baptized Jesus in the
Jordan and the Spirit of God, in the form of a dove,
had descended upon Him, the Baptist seems to have
had some doubts of the Messiahship of Christ and sent
an embassy to Him to ask, " Art thou he that should
come, or do we look for another? " 2 If the Forerun-
ner of the Messiah did not know, are we justified in
demanding perfect prescience and absolute infallibil-
ity of Caiaphas?

The most perfect proof of the divinity of Jesus is the
fact of His resurrection from the dead, attested by
Matthew, Mark, Luke, John, Peter, James, and Paul.
And yet, although He had frequently foretold to them
that He would rise again, Jesus had to personally ap-
pear before them and submit to physical tests before
they would believe that His prophecies had been ful-
filled.3 And it must be remembered that the great
proof of His divinity, His resurrection from the dead,
was not before Caiaphas and his colleagues at the time
of the trial.

The preceding suggestions and observations have
not been made in order to excuse or palliate the con-
duct of the members of the Sanhedrin for their illegal
conduct of the proceedings against Jesus. Under

1 John xiii.-xvii. 2 Matt. xi. 3.

3 Luke xxiv. 39-43; John xx. 24-28.

THE BRIEF

213

Point XI of the Brief we shall prove by Jewish testi-
mony alone the utterly wicked and worthless character
of these judges. Under Point XII we shall elaborate
the proofs in favor of the Messiahship of Jesus and of
Mis divine Sonship of the Father, as far as the scope
of this work will permit. We have suggested above
the perplexity of the members of the Sanhedrin and
of the disciples of Jesus, concerning the divinity of the
Nazarene, to illustrate to the reader how futile would
be the task of attempting in a treatise of this kind to
settle the question of the identity of Jesus with God,
and thereby fix upon His judges in the palace of Caia-
phas the odium of an unrighteous judgment. The
question, after all, is one to be settled in the forum of
conscience, illuminated by the light of history, and not
at the bar of legal justice.

But whether Jesus were man or God, or man-God,
we are justified in passing upon the question of the vio-
lation of forms of law which He was entitled to have
observed in the trial of His claims. And at this point
we return to a consideration of the phrase, " substan-
tially right in point of law." This language is not in-
tended to convey the notion that Jesus was legally con-
victed. It means simply that the claim of equality
with God by a plain Jewish citizen was, under He-
brew law, blasphemy; the crime which Caiaphas and
the Sanhedrin believed that Jesus had confessed, and
for which they condemned Him.

Another distinction that must be made is that re-
lating to the kind of law that is meant, when it is said
that the conviction of Jesus was " substantially right

2i4 THE TRIAL OF JESUS

in point of law." Ancient Hebrew law is meant, and
as that law was interpreted from the standpoint of an-
cient Judaism. The policy and precepts of the New
Dispensation inaugurated by Jesus can hardly be con-
sidered, in a legal sense, to have been binding upon
Caiaphas and the Sanhedrin, since the very claims of
Jesus to Messiahship and identity with God were to
be tested by the provisions of the Mosaic Code and in
the light of Hebrew prophecy. The Pentateuch, the
Prophets, and the Talmud were the legal guides, then,
of the judges of Israel in judicial proceedings at this
time, and furnished rules for determining the genuine-
ness of His pretensions.

Mr. Greenleaf, the author of the phrase, " substan-
tially right in point of law," asserts that the trial was
not legal in all its forms, but he fails to enumerate the
errors. The purpose of the Brief in this work is to
name and discuss the errors and irregularities of the
Hebrew trial, that is, the trial before the Sanhedrin.

But the question may be asked: Why be guilty of
the inconsistency of discussing illegalities, when ad-
mission has already been made that the decision was
"substantially right in point of law"? The answer
is that a distinction must be made between that which
is popularly and historically known or believed to be
true, and that which has not been or cannot be proved
in a court of law. Every lawyer is familiar with this
distinction. The court may know that the accused is
guilty, the jury may know it, the attorneys may be per-
fectly sure of it, but if the verdict of guilt returned by
the jury into court is not based upon testimony that

THE BRIEF 215

came from the witness stand from witnesses who were
under oath, and that had submitted to cross-examina-
tion, such verdict would hardly be sustained on appeal.
In other words, the lives and liberties of alleged crimi-
nals must not be endangered by extra-judicial and
incompetent testimony. A legal verdict can be ren-
dered only when a regular trial has been had before
a competent court, having jurisdiction of the crime
charged, and after all legal rules have been observed
which the constitution and the laws have provided as
safeguards for the protection of the rights of both the
people and the prisoner. However heinous the of-
fense committed, no man is, legally speaking, a crimi-
nal, until he has been legally tried and declared a
criminal. The presumption of innocence, a substan-
tial legal right, is thrown around him from the very
beginning, and continues in his favor until it is over-
thrown by competent and satisfactory evidence. Un-
less such evidence is furnished, under legal forms, no
man, however morally guilty, can be denominated a
criminal, in a juristic sense, in the face of the perpetual
continuance of this presumption of innocence.

If these rules and principles be applied to the trial
of Jesus, either before the Sanhedrin or before Pilate,
it can be easily demonstrated that while He might
have been abstractly and historically guilty of the
crime of blasphemy, in the wider acceptation of that
term, He was not remotely a criminal, because He was
never legally tried and convicted. In other words, his
condemnation was not based upon a legal procedure
that was in harmony with either the Mosaic Code or

2i 6 THE TRIAL OF JESUS

the Mishna. The pages of human history present no
stronger case of judicial murder than the trial and
crucifixion of Jesus of Nazareth, for the simple reason
that all forms of law were outraged and trampled
under foot in the proceedings instituted against Him.
The errors were so numerous and the proceedings so
flagrant that many have doubted the existence of a
trial. Others have sought to attack the authenticity of
the Gospel narratives and the veracity of the Gospel
writers by pointing to the number of errors committed
as evidence that no such proceedings ever took place.
As Renan would say, this is a species of " naive impu-
dence," to assert that a trial was not had, because nu-
merous errors are alleged; as if a Hebrew court could
not either intentionally or unintentionally commit
blunders and many of them. Every lawyer of exten-
sive practice anywhere knows from experience that
judges of great ability and exalted character conduct
lengthy trials, in both civil and criminal cases, with
the most painstaking care, and are aided by eminent
counsel and good and honest jurors; the whole purpose
of the proceedings being to reach a just and righteous
verdict; and yet, on appeal, it is frequently held that
not one but many errors have been committed.

At this point, a few preliminary observations are
necessary as a means of introduction to the discussion
of errors. Certain elementary principles should be
clearly understood at the outset. In the first place, an
analysis of the word " case," used in a juristic sense,
shows the existence of two cardinal judicial elements:
the element called Fact, and the element called Law.

THE BRIEF 217

And whether the advocate is preparing a pleading at
his desk, is making a speech to the jury, or addressing
himself to the court, these elements are ever present in
his mind. He is continually asking these questions:
What are the facts of this case? What is the law ap-
plicable to these facts? Do the facts and law meet,
harmonize, blend, according to the latest decision of
the court of last resort? If so, a case is made; other-
wise, not.

It is impossible to frame any legal argument upon
any other basis than that of the agreement or non-
agreement of law and fact, in a juristic sense; and
upon this plan errors will be discussed and the Brief
will be framed.

In the second place, it must not be forgotten that, in
matters of review on appeal, errors will not be pre-
sumed; that is, errors will not be considered that do
not appeal affirmatively upon the record. The law
will rather presume and the court will assume that
what should have been done, has been done. In con-
formity with this principle, only such errors will be
discussed in these pages that affirmatively appear in
the New Testament Gospels which form the record in
this case. By " affirmatively appear " is meant that
the error is clearly apparent or may be reasonably
inferred.

In Part II of the preceding pages of this volume,
Hebrew criminal law, which was actively in force at
the time of Christ, was outlined and discussed. In
Part I the Record of Fact was reviewed in the light
of judicial rules. It is the present purpose, in Part

ai 8 THE TRIAL OF JESUS

III, to enumerate, in the form of a Brief, the errors
committed by the Hebrew judges of Jesus, as the re-
sult of their failure to make the facts of their trial con-
form with the legal rules by which they were bound
in all criminal proceedings where human life was at
stake. The plan proposed is to announce successive
errors in brief statements which will be designated
" Points," in imitation of the New York method on
appeal. Following the statement of error will be
given a short synopsis of the law applicable to the
point suggested. Then, finally, will follow the fact
and argument necessary to elaboration and proof. Ac-
cordingly, in pursuance of this method, let us consider
the points in order.

POINT I
THE ARREST OF JESUS WAS ILLEGAL

LAW

Ktl Now the Jewish law prohibited all proceedings by
night" — DUPIN, "Jesus Devant Ca'iphe et Pilate."

-" The testimony of an accomplice is not permissible by
Rabbinic law both propter affectum and propter
delictum, and no man's life, nor his liberty, nor his
reputation can be endangered by the malice of one
who has confessed himself a criminal." — MENDEL-
SOHN, " Criminal Jurisprudence of the Ancient
Hebrews," n. 274.

" Thou shalt not go up and down as a talebearer
among thy people: neither shalt thou stand against
the blood of thy neighbor. Thou shalt not hate thy
brother in thine heart: Thou shalt not avenge or
bear any grudge against the children of thy people,
but thou shalt love thy neighbor as thyself." —

Leviticus xix. 17, 18.

FACT AND ARGUMENT

THE Bible record discloses three distinct elements

of illegality in the arrest of Jesus :"(i) The arrest took

*■ place at night in violation of Hebrew law; (2) it was

effected through the agency of a traitor and informer,

in violation of a provision in the Mosaic Code and of

a Rabbinic rule based thereon; (3) it was not the

219

22o THE TRIAL OF JESUS

^result of a legal mandate from a court whose inten-
tions were to conduct a legal trial for the purpose of
reaching a righteous judgment. These elements of il-
legality will be apparent when the facts of the arrest
are briefly stated.

v-Il was the 14th Nisan, according to the Jewish cal-
endar; or April 6th, A.D. 30, according to our cal-
endar. The Paschal Feast was at hand?} The eyes of
all Israel were centered upon the Metropolis of Ju-
daism. From Judea, from Samaria, from Galilee and
Perea, from all parts of the world where Jews were
resident, pilgrims came streaming into the Holy City
to be present at the great national festival. It was to
be an occasion of prayer and thanksgiving, of sweet
memories and happy reunions. Then and there offer-
ings would be made and purifications obtained. In
the great Temple, with its gorgeous ritual, Judaism
was to offer its soul to Jehovah. The national and re-
ligious feelings of a divinely commissioned race were
to be deeply stirred by memories that reminded them
of the first, and by hopes that looked forward to the
final great deliverance.

It was probably in the home of Mark, on the out-
skirts of Jerusalem, that Jesus gathered with the
Twelve, on the evening of this day, to eat the Paschal
lamb. In the Upper Room, the sacred feast was
spread and the little band were gathered. Only the
genius of a da Vinci could do justice to that scene.
There was Peter, hot-headed, impetuous, bravado-like.
There was John, as gentle, pure-minded, and loving
as a woman. There was Judas, mercenary, low-

THE BRIEF 221

browed, and craven-hearted. There were others who,
with Peter and John, were to have temples dedicated
in their names. In their midst was the Master of them
all, " God manifest in the flesh," who " with His
pierced hands was to lift empires off their hinges, and
turn the stream of centuries from its channel." No
moment of history was so fraught with tragic interest
for the human race. There the seal of the New Cove-
nant was affixed, the bond of the new human spiritual
alliance was made. The great law of love was pro-
claimed which was to regenerate and sanctify the
world. " These things I command you, that ye love
one another. And I have declared unto them thy
name, and will declare it; that the love wherewith
thou hast loved me, may be in them, and I in them."
Thus the great law of love was to be the binding tie,
not only among the little brotherhood there assembled
but was to be the cementing bond between the regen-
erate of earth, the Mediator, and the great Father of
love, Himself. There, too, was given the great exam-
ple of humility which was to characterize true Chris-
tian piety throughout the ages. The pages of history
record no other spectacle so thrilling and sublime, and
at the same time tender and pathetic, as that afforded
by the Paschal Meal, when Jesus, the Savior of men,
the Son of God, the Maker of all the shining worlds,
sank upon His knees to wash the feet of ignorant, sim-
ple-minded Galilean fishermen, in order that future
ages might have at once a lesson and an example of
that genuine humility which is the very life and soul
of true religion.

ill THE TRIAL OF JESUS

During the evening, a bitter anxiety, an awful mel-
ancholy, seized the devoted band, whose number, thir-
teen, even to-day inspires superstitious dread. In the
midst of the apprehension the heart of the Master was
so deeply wrung with agony that He turned to those
about Him and said: "Verily, verily, I say unto you
that one of you shall betray me." This prediction only
intensified the sadness that had already begun to fall
over the Sacred Meal and the loving disciples began
to ask: "Lord, is it I?" Even the betrayer himself
joined with the others, and, with inconceivable heart-
lessness and effrontery, asked: " Lord, is it I? " At the
moment of greatest dread and consternation, Peter,
bolder than the rest, leaned across the table and whis-
pered to John, who was resting upon the bosom of
Jesus, and suggested that he ask the Master who it was.
Accordingly, John whispered and asked the Savior:
" Lord, who is it? " " Jesus answered, He it is, to
whom I shall give a sop, when I have dipped it. And
when he had dipped the sop, he gave it to Judas Is-
cariot, the son of Simon. And after the sop Satan en-
tered into him. Then said Jesus unto him, That thou
doest, do quickly." Judas then arose from the feast
and vanished from the room. When he was gone, the
Master began to deliver to His " little children," 1 to
those who had loved and followed Him, those farewell
words which St. John alone records, and that are so
" rarely mixed of sadness and joys, and studded with
mysteries as with emeralds."

There, too, doubts and fears began to burst from the

1 John xiii. 33.

THE BRIEF 223

hearts and lips of the members of the little company.
The knowledge that the gentle Jesus, whose ministry
had thrilled and glorified their simple peasant lives,
and promised to them crowns of glory in the world to
come, was about to leave them, and in a most tragic
way, filled them with solicitude and dread. Their
anxiety manifested itself by frequent questioning
which excites our wonder that men who had been with
Him so long in the Apostolic ministry should have
been so simple-minded and incredulous. " They said,
therefore, What is this that he saith, A little while?
We cannot tell what he saith." This verse is a simple
illustration of the continued misapprehension, on this
night, upon the part of the Apostles, of everything said
by the Master. Peter was anxious to know why he
could not follow the Lord. Thomas wanted to know
the exact way, evidently failing to comprehend the
figurative language of the Christ. Judas Lebbaeus
also had his doubts. He became muddled by mixing
the purely spiritual with the physical powers of sight.
" Lord, how is it," he asked, " that thou wilt manifest
thyself to us and not to the world? " Philip of Beth-
saida desired to see the Father. " Lord, show us the
Father," he said, " and it sufficeth us." Philip seems
to have been so dense that he had no appreciation of
the spiritual attributes and invisible existence of the
Father.

It was thus that several hours were spent in celebrat-
ing the great Feast; in drinking wine; in eating the
Paschal lamb, the unleavened bread, and the bitter
herbs; in singing hymns, offering prayers, and per-

224 THE TRIAL OF JESUS

forming the sacred rites; in delivering discourses
which in every age have been the most precious treas-
ures of Christians, and in expressing doubts and fears
that have excited the astonishment and even the ridi-
cule of the exacting and supercilious of all the
centuries.

At the approach of midnight, Jesus and the Eleven
left the Upper Chamber of the little house and stepped
out into the moonlight of a solemn Passover night.
They began to wend their way toward the Kedron that
separated them from the olive orchard on the Mount.
Less than an hour's journey brought them to the Gar-
den of Gethsemane. The word " Gethsemane " means
" oil press." And this place doubtless derived its name
from the fact that in it was located an oil press which
was used to crush olives that grew abundantly on the
trees that crowned the slopes. Whether it was a public
garden or belonged to some friend of Jesus, we do not
know, but certain it is that it was a holy place, a sanc-
tuary of prayer, where the Man of Sorrows frequently
retired to pray and commune with His Heavenly
Father. At the gateway Jesus left eight of the Apos-
tles and took with Him the other three: Peter, James,
and John. These men seem to have been the best be-
loved of the Master. They were with Him at the rais-
ing of Jairus' daughter, at the Transfiguration on the
Mount, and were now selected to be nearest Him in
the hour of His agony. Proceeding with them a short
distance, He suddenly stopped and exclaimed : " My
soul is exceedingly sorrowful, even unto death: tarry
ye here, and watch with me." Then, withdrawing

THE BRIEF

225

Himself from them a stone's cast, He sank upon His
knees and prayed; and in the agony of prayer great
drops of sweat resembling blood rolled from His face
and fell upon the ground. Rising from prayer, He
returned to His disciples to find them asleep. Sorrow
had overcome them and they were mercifully spared
the tortures of the place and hour. Three times did
He go away to pray, and as many times, upon His re-
turn, they were found asleep. The last time He came
He said to them: " Rise, let us be going: behold he is
at hand that doth betray me." At this moment were
heard the noise and tramp of an advancing multitude.
" Judas then, having received a band of men and offi-
cers from the chief priests and Pharisees, cometh
thither with lanterns and torches and weapons." This
midnight mob, led by Judas, was made up of Roman
soldiers, the Temple guard, and stragglers from along
the way. It is probable that the traitor walked ahead
of the mob by several paces. " And forthwith he came
to Jesus, and said, Hail, master, and kissed him and
Jesus said unto him, Friend, wherefore art thou come?
Then came they and laid hands on Jesus and took
him." But the arrest was not accomplished without
incidents of pathos and of passion. " Whom seek ye? "
asked the Master. " Jesus of Nazareth," they an-
swered. " I am he," replied the Savior. Then, dazed
and bewildered, they fell backward upon the ground.
" Then asked he them again, whom seek ye? and they
said, Jesus of Nazareth. Jesus answered, I have told
you that I am he: if, therefore, ye seek me, let these
go their way," John says that this intercession for the

226 THE TRIAL OF JESUS

disciples was to the end that prophecy might be ful-
filled.1 Doubtless so; but this was not all. Nowhere
in sacred literature do we find such pointed testimony
to the courage and manliness of Jesus. His tender
solicitude for the members of the little band, for those
who had quit their homes and callings to link their
destinies with His, was here superbly illustrated. He
knew that He was going to immediate condemnation
and then to death, but He ardently desired that they
should be spared to live. And for them He threw
Himself into the breach.

The furious and the passionate, as well as the
tender and pathetic, mark the arrest in the garden.
Then Simon Peter having a sword drew it, and
smote the high priest's servant, and cut off his right
ear. The servant's name was Malchus." This was
bloody proof of that fidelity which Peter loudly pro-
claimed at the banquet board, but which was soon to
be swallowed up in craven flight and pusillanimous
denial.

" Then the band and the captain and officers of the
Jews took Jesus, and bound him."

At this point the arrest was complete, and we now
return to the discussion of the illegalities connected
with it.

^It was a well-established and inflexible rule of He-
brew law that proceedings in capital trials could not
be had at night. This provision did not apply simply
to the proceedings of the trial after the prisoner had
been arraigned and the examination had been begun.

1 John xviii. 9.

THE BRIEF G^N

We have it upon the authority of Dupin that it ap-
plied to the entire proceedings, from the arrest to the
execution. The great French advocate explicitly states
that the arrest was illegal because it was made at
night.1 Deference to this rule seems to have been
shown in the arrest of Peter and John on another oc-
casion. " And they laid hands upon them and put
them in hold unto the next day: for it was now even-
tide." 2 That Jesus was arrested at night is clearly
evident from the fact that those who captured Him
, boj*e " lanterns and torches and weapons."
V The employment of Judas by the Sanhedrin au-
thorities constitutes the second element of illegality in
the arrest. This wretched creature had been num-
bered among the Twelve, had been blessed and hon-
ored, not merely with discipleship but with apostle-
ship, had himself been sent on holy missions by the
Master, had been given the power to cast out devils,
had been appointed by his Lord the keeper of the
moneys of the Apostolic company, and, if Edersheim
is to be believed, had occupied the seat of honor by
the Master at the Last Supper.3 This craven and cow-
ardly Apostate was employed by the Sanhedrin Coun-
cil to betray the Christ. It is clearly evident from the
Scriptures that the arrest of Jesus would not have
taken place on the occasion of the Passover, and there-
fore probably not at_.aLl, if Judas had not deserted
and betrayed Him. \The Savior had appeared and
preached daily in the Temple, and every opportunity

1 "Jesus Devant Cai'phe et Pilate." 2 Acts iv. 3.

3 "Life and Times of Jesus the Messiah," vol. ii. p. 494.

228 THE TRIAL OF JESUS

was offered to effect a legal arrest on legal charges
with a view to a legal determination. But the enemies
of Jesus did not want this. They were waiting to
effect His capture in some out-of-the-way place, at the
dead of night, when His friends could not defend Him
and their murderous proceedings would not reach
the eye and ear of the public. This could not be
accomplished as long as His intimates were faithful
to Him. It was, then, a joyful surprise to the mem-
bers of the Sanhedrin when they learned that Judas
was willing to betray his Master. " And when they
heard it, they were glad, and promised to give him
money."

In modern jurisdictions, accomplice testimony has
been and is allowed. The judicial authorities, how-
ever, have always regarded it with distrust, and we
might say with deep-seated suspicion. At the common
law in England a conviction for crime might rest upon
the uncorroborated testimony of an accomplice, after
the jury had been warned that such testimony was to
be closely scrutinized. In the American States the tes-
timony of an accomplice is admissible, but must be cor-
roborated in order to sustain a conviction. This is the
general rule. The weakness of such evidence is shown
by the nature of the corroboration required by several
states. In some of them the corroborating testimony
must not only tend to prove the commission of the
crime but must also tend to connect the defendant with
such commission. Another evidence of the untrust-
worthiness of such testimony is that in several states an
accomplice is not permitted to corroborate another ac-

THE BRIEF 229

complice, so as to satisfy the statutes.1 The admission
of such testimony seems to rest, in great measure, upon
the supreme necessity of the preservation of the state,
which is only possible when the punishment of crime
is possible; and in very many instances it would be im-
possible to punish crime if guilty confederates were
not allowed and even encouraged to give state's evi-
dence.

But notwithstanding this supreme consideration of
the necessity of the preservation of the state, the an-
cient Hebrews forbade the use of accomplice testi-
mony, as we have seen from the extract from " The
Criminal Jurisprudence of the Ancient Hebrews," by
Mendelsohn, cited on page 219.

The arrest of Jesus was ordered upon the supposi-
tion that He was a criminal; this same supposition
would have made Judas, who had aided, encouraged,
and abetted Jesus in the propagation of His faith, an
accomplice. If Judas was not an accomplice, Jesus
was innocent, and His arrest was an outrage, and
therefore illegal.

The Hebrew law against accomplice testimony must
have been derived, in part at least, from the following
rule laid down in Leviticus xix. 16-18: "Thou shalt
not go up and down as a talebearer among thy people:
neither shalt thou stand against the blood of thy neigh-
bor. Thou shalt not hate thy brother in thine heart:
Thou shalt not avenge, or bear any grudge against the
children of thy people, but thou shalt love thy neigh-

1 See Cooley's " Blackstone," vol. ii. p. 330, n. 6; also Greenleaf, "On
Evidence," vol. i. pp. 531-35 (10th edition).

a3o THE TRIAL OF JESUS

bor as thyself." It may be objected that this is only a
moral injunction and not a legal rule; to which reply
must be made that there was no difference between
morality and law among the ancient Hebrews. Their
religion was founded upon law, and their law upon
religion. The two ideas of morality and law were in-
separable. The ancient Hebrew religion was founded
upon a contract of the strictest legal kind. The Abra-
hamic covenant, when properly interpreted, meant
simply that Jehovah had agreed with the children of
Israel that if they would obey the law as He gave it,
they would be rewarded by Him. The force of this
contention will be readily perceived when it is re-
flected that the Decalogue is nothing but ten moral
injunctions, which are nevertheless said to be the law
which God gave to Moses.

Every provision in the rule laid down in Leviticus
is, moreover, directly applicable to the character and
conduct of Judas, and seems to have been intended as
a prophetic warning to him. Let us consider the dif-
ferent elements of this rule in order.

" Thou shalt not go up and down as a talebearer
among thy people."

Was not Judas a talebearer among his people? Did
he not go to the chief priests to betray his Master unto
them? Was he not a " talebearer" if he did nothing
more than communicate to the chief priests the where-
abouts of the Savior, that Gethsemane was His accus-
tomed place of prayer and that He might be found
and arrested there at midnight? Are we not justified
in supposing that Judas told the enemies of Jesus

THE BRIEF

231

much more than this? Is it not reasonable to infer that
the blood-money was paid to secure more evidence
than that which would merely lead to the arrest of the
Nazarene? Is it not probable that Judas detailed to
the chief priests many events in the ministry of Jesus
which, it is known, He communicated only to the
Twelve? If he did these things, was he not a " tale-
bearer " within the meaning of the rule?

" Neither shalt thou stand against the blood of thy
neighbor."

Did not Judas stand against the blood of his near-
est and dearest neighbor when he consented to be the
chief instrument of an arrest which he knew would
result in death?

" Thou shalt not hate thy brother in thy heart."

Is it possible to suppose that anything less than
hatred could have induced Judas to betray the Christ?
This question is important, for it involves a considera-
tion of the real character of the betrayer and the main
motive for the betrayal. Judas was from Kerioth in
Judea and was the only Judean among the Twelve.
Why Judas was selected as a member of the Apostolic
company is too deep a mystery to be solved by the
author of these pages. Besides, the consideration of
the elements of predestination in his case is foreign to
the purpose of this work. His character as a purely
human agency is sufficient to answer the present de-
sign. Judas had undoubtedly demonstrated business
capacity in some way before his appointment to the
treasury portfolio of the little band. It cannot be
doubted that greed was his besetting sin. This trait,

232 THE TRIAL OF JESUS

coupled with political ambition, undoubtedly accounts
for his downfall and destruction. He was one of those
simple-minded, short-sighted individuals of his day
who believed that a political upheaval was at hand
which would result in the restoration of the independ-
ence of Israel as a separate kingdom. He believed
that this result would be brought about through the
agency of a temporal Messiah, an earthly deliverer of
almost divine qualities. He thought at first that he
saw in Jesus the person of the Messiah, and in the
Apostolic band the nucleus of a revolution. He was
gratified beyond measure at his appointment to the
treasury position, for he felt sure that from it promo-
tion was in sight. He was perfectly contented to carry
for a while the " little bag," provided there was rea-
sonable assurance that later on he would be permitted
to carry a larger one.

As the months and years rolled by, heavy scales be-
gan to fall from his stupid eyes and he began to be
deceived not by but in Jesus. We are justified in be-
lieving that Judas never even remotely appreciated the
spiritual grandeur of the Christ. He probably had
intellect and soul enough to be charmed and fascinated
by the lofty bearing and eloquent discourse of Jesus,
but after all he perceived only the necessary qualifica-
tions of a great republican leader and successful revo-
lutionist. And after a while he doubtless began to tire
of all this when he saw that the revolution was not pro-
gressing and that there was no possibility of actual and
solid results. It is probable that disaffection and
treachery were born and began to grow in his mind

THE BRIEF a33

and heart at Capernaum, when Jesus was deserted by
many of His followers and was forced to effect a re-
alignment along spiritual lines. Judas was not equal
to the spiritual test, and it was doubtless then that
the disintegration of his moral nature began, which
stopped only with betrayal, infamy, and death.

But by what process, we may ask, was the mercenary
disposition of Judas converted into hatred against
Jesus? The process was that of disappointment.
When Judas became convinced that all the years of his
connection with the Apostolic company had been lost,
his will became embittered and his resentment was
aroused. In the denseness of his ignorance and in the
baseness of his soul he probably thought that Jesus had
deceived His followers as to His true mission and he
felt enraged because he had been duped. He had
looked forward to worldly promotion and success.
He had fondly hoped that the eloquence of Jesus
would finally call around Him an invincible host of
enthusiastic adherents who would raise the standard
of revolt, drive the Romans from Judea, and establish
the long-looked-for kingdom of the Jews. He had
noted with deep disappointment and unutterable cha-
grin the failure of Jesus to proclaim Himself king
when, at Bethphage, the multitude had greeted His
entrance into Jerusalem with Hosannas and acclama-
tions. And now, at the Last Supper, he became con-
vinced from the conduct and discourses of the Master
that his worst fears were true, that Jesus was sincere
in His resolution to offer Himself as a sacrifice for the
sake of a principle which he, Judas, did not approve

234 THE TRIAL OF JESUS

because he could not understand. In other words, he
witnessed in the resolve of Jesus to die at once the ship-
wreck of his hopes, and he made haste to vent his
wrath upon the author of his disappointment.

The writer agrees with Renan that the thirty pieces
of silver were not the real or leading inducement to
this black and monumental betrayal. Having taken
the fatal step, by leaving the Upper Room in the home
of Mark, to deliver his Lord and Master into the
hands of enemies, a bitter hatred was formed at once
against the innocent victim of his foul designs, on the
well-known principle of human nature that we hate
those who have induced us to do that which causes us
to despise and hate ourselves.

" Thou shalt not avenge or bear any grudge against
the children of thy people." ■>

Where, in the annals of the universe, do we find an-
other such case of vengeance and grudge as this of
Judas against Jesus?

" But thou shalt love thy neighbor as thyself."

This commandment of the Mosaic law was also the
great commandment of the Master of Galilee, and in
violating it by consenting to betray and sacrifice Jesus,
Judas assaulted and destroyed in his own soul the car-
dinal principle of the two great religious dispensations
of his race.

And yet this informer, conspirator, and malefactor
was employed by the chief priests in effecting the
arrest of Jesus. Was not a fundamental rule of Mosaic
law violated? Will it be urged that the rule operated
against Judas but not against the chief priests? If so,

THE BRIEF i^S

it must be remembered that no wicked instrument
could be used in promoting Hebrew justice. Officers
of the law were not permitted to require a citizen to
do an act which was forbidden by law. If Jesus was
innocent, then the arrest was illegal. If He was
guilty, then Judas, his Apostle and fellow-worker, was
an accomplice; and no accomplice could be utilized in
furtherance of justice, under Hebrew law, either in
the matter of arrest or in the establishment of guilt as
a witness at the trial.

According to the Talmud, there was at least one
seeming exception to this rule. Renan describes it
with peculiar clearness and succinctness. "The pro-
cedure," he says, "against the 'corrupter' (mesith),
who sought to attaint the purity of religion, is ex-
plained in the Talmud, with details, the naive impu-
dence of which provokes a smile. A judicial ambush
is therein erected into an essential part of the examina-
tion of criminals. When a man was accused of being
a ' corrupter,' two witnesses were suborned who were
concealed behind a partition. It was arranged to
bring the accused into a contiguous room, where he
could be heard by these two witnesses without his per-
ceiving them. Two candles were lighted near him, in
order that it might be satisfactorily proved that the
witnesses 'saw him.' (In criminal matters, eyewit-
nesses alone were admitted. Mishna, Sanhedrin VI.
5.) He was then made to repeat his blasphemy; next
urged to retract it. If he persisted, the witnesses who
had heard him conducted him to the Tribunal and he
was stoned to death. The Talmud adds that this was

236 THE TRIAL OF JESUS

the manner in which they treated Jesus; that he was
condemned on the faith of two witnesses who had been
suborned, and that the crime of c corruption ' is, more-
over, the only one for which the witnesses are thus
prepared." x

Most Gentile writers ridicule this statement of the
Talmud, and maintain that it was a Rabbinic inven-
tion of post-Apostolic days, and was intended to offer
an excuse for the outrageous proceedings against the
Christ. Schiirer dismisses the whole proposition with
contempt. Many Jewish scholars also refuse it the
sanction of their authority. But even if it was a Tal-
mudic rule of law in force at the time of Christ, its
constitutionality, so to speak, might be questioned, in
the first place; since it was, in spirit at least, repugnant
to and subversive of the Mosaic provision in Leviticus
cited above. It must not be forgotten that the Mosaic
Code was the constitution, the fundamental law of Ju-
daism, by which every Rabbinic interpretation and
every legal innovation was to be tested.

Again, such a law would have been no protection to
the chief priests and to Judas against the operation of
this Mosaic injunction. If such a rule of procedure
could be justified upon any ground, it would require
disinterested men acting from honorable motives, in
promoting the maintenance of law and order. Officers
of the law have sometimes, as pretended accomplices,
acted in concert with criminals in order to secure and
furnish evidence against them. But they were officers
of the law, and the courts have held that their evidence

1 "Vie de Jesus," p. 303.

THE BRIEF 237

was not accomplice testimony requiring corroboration.
It is very clear that Judas was not such a disinterested
witness, acting in the interest of public justice. He
was a fugitive from the Last Supper of his Master, a
talebearer within the meaning of the provision in Le-
viticus; and his employment by the Sanhedrin was a
violation of a fundamental provision in the Mosaic
Code.

?V The third illegality in the arrest of Jesus was that
His capture was not the result of a legal mandate from
a court whose intentions were to conduct a legal trial
for the purpose of reaching a righteous judgment.
" This arrest," says Rosadi, " effected in the night be-
tween Thursday and Friday, the last day of the life of
Jesus, on Nisan 14, according to the Hebrew calendar,
was the execution of an illegal and factious resolution
of the Sanhedrin. There was no idea of apprehending
a citizen in order to try him upon a charge which after
sincere and regular judgment might be found just or
unfounded; the intention was simply to seize a man
and do away with him. The arrest was not a preven-
tive measure such as might lawfully precede trial and
condemnation; it was an executive act, accomplished
in view of a sentence to be pronounced without legal
justification."

POINT II

THE PRIVATE EXAMINATION OF JESUS
BEFORE ANNAS (OR CAIAPHAS) WAS
ILLEGAL

LAW

y

" Now the Jewish law prohibited all proceedings by
night" — DUPIN, "Jesus Devant Ca'iphe et Pilate."

*" Be not a sole judge, for there is no sole judge but
One."— Mishna, Pirke Aboth IV. 8.

\" A principle perpetually reproduced in the Hebrew
scriptures relates to the two conditions of publicity
and liberty. An accused man was never subjected
to private or secret examination, lest, in his per-
plexity, he furnish damaging testimony against
himself." — SALVADOR, " Institutions de Mo'ise," pp.
3°5, 366.

FACT AND ARGUMENT

The private examination before Annas (or Caia-
phas) was illegal for the following reasons: (si) The
examination was conducted at night in violation of
Hebrew law; (2) no judge or magistrate, sitting
alone, could interrogate an accused judicially or sit in
judgment upon his legal rights; (3) private prelimi-
nary examinations of accused persons were not allowed
by Hebrew law.

The general order of events following the arrest in

238

THE BRIEF 239

the garden was this: (1) Jesus was first taken to the
house of Annas; (2) after a brief delay He was sent
by Annas to Caiaphas, the high priest, in whose palace
the Sanhedrin, or a part thereof, had already assem-
bled; (3) He was then brought before this body, tried
and condemned; (4) He remained, during the rest of
the night, in the high priest's palace, exposed to the
insults and outrages of His keepers; and was finally
and formally sentenced to death by the Sanhedrin
which reconvened at the break of day.

That Jesus was privately examined before His regu-
lar trial by the Sanhedrin is quite clear. But whether
this preliminary examination took place before Annas
or Caiaphas is not certainly known. John alone re-
cords the private interrogation of Jesus and he alone
refers to Annas in a way to connect him with it. This
Evangelist mentions that they " led him away to Annas
first."1 Matthew says that after the arrest of Jesus,
they " led him away to Caiaphas the high priest," 2
without mentioning the name of Annas. Mark tells us
that " they led Jesus away to the high priest " ; 3 but he
does not mention either Annas or Caiaphas. Luke
records that they " took him, and led him, and brought
him into the high priest's house," 4 without telling us
the name of the high priest.

" The high priest then asked Jesus of his disciples
and of his doctrine." 5 This was the beginning of the
examination. But who was the examiner — Annas or
Caiaphas? At first view we are inclined to declare

1 John xviii. 13. 2 Matt. xxvi. 57. 3 Mark xiv. 53.

4 Luke xxii. 54. 5 John xviii. 19.

240 THE TRIAL OF JESUS

that Caiaphas is meant, because he was undoubtedly
high priest in that year. But Annas is also designated
as high priest by Luke in several places.1 In Acts iv.
6 he mentions Caiaphas without an official title, but
calls Annas high priest. It is therefore not known to
whom John refers when he says that the " high priest
asked Jesus of his disciples and of his doctrine." For
a lengthy discussion of this point, the reader is referred
to Andrews's " Life of Our Lord," pp. 505-510.

But it is absolutely immaterial, from a legal point
of view, whether it was Annas or Caiaphas who exam-
ined Jesus, as the proceedings would be illegal in
either case. For whether it was the one or the other,
neither had the right to sit alone as judge; neither had
the right to conduct any judicial proceeding at night;
neither had the right to institute a secret preliminary
examination by day or night.

Attention has been called to the matter as involving
a question of historical rather than of legal conse-
quence. A knowledge of the true facts of the case
might, however, throw light upon the order and con-
nection of the proceedings which followed the same
night. For if the private examination recorded by
John was had before Annas, it was doubtless separated
by a certain interval of place and time from the later
proceedings before Caiaphas. Then it is reasonable
to suppose that the examination of witnesses, the con-
fession and condemnation which took place at the
regular trial before the Sanhedrin over which Caia-
phas presided, happened later in the night, or even

1 Luke iii. 2; Acts iv. 6.

JESUS IN GETHSEMANE ( HOFFMAN)

THE BRIEF 241

toward morning, and were of the nature of a regular
public trial. If, on the other hand, Annas sent Jesus
without delay to Caiaphas, who examined Him, it is
reasonable to conclude that witnesses were at once pro-
duced, and that the adjuration and condemnation im-
mediately followed. If such were the case, a consid-
erable interval of time must have intervened between
these proceedings and the meeting of the Sanhedrin
which was had in the morning to confirm the judg-
ment which had been pronounced at the night session.
But these considerations are really foreign to the ques-
tion of legal errors involved, which we come now to
discuss.

In the first place, the private examination of Jesus,
whether by Annas or Caiaphas, took place at night;
and we have learned from Dupin that all proceedings
at night in capital cases were forbidden.

In the second place, no judge or magistrate, sitting
alone, could interrogate an accused person judicially
or sit in judgment upon his legal rights. We have
seen in Part II of this volume that the Hebrew system
of courts and judges provided no single magistrates
who, sitting alone, could adjudicate causes. The low-
est Hebrew court consisted of three judges, sometimes
called the Court of Three. The next highest tribunal
was the Minor Sanhedrin of three-and-twenty mem-
bers. The supreme tribunal of the Jews was the Great
Sanhedrin of seventy-one members. There was no
such thing among the ancient Hebrews as a court with
a single judge. " Be not a sole judge, for there is no
sole judge but One," is one of the most famous apho-

X

X

242 THE TRIAL OF JESUS

risms of the Pirke Aboth. The reason of this rule is
founded not only in a religious exaction born of the
jealousy of Jehovah, but in the principle of publicity
which provides for the accused, in the very number of
judges, a public hearing. The same principle is sug-
gested by the number of witnesses required by both the
Mishna and Mosaic Code for the conviction of a pris-
oner. At least " two or three witnesses " were required
to appear publicly and give testimony against the ac-
cused, else a conviction could not follow.

Again, preliminary examinations of accused persons
were not allowed by Hebrew law. In the American
states and in some other countries, a man suspected of
crime and against whom an information or complaint
has been lodged, is frequently taken before an exam-
ining magistrate to determine whether he should be
discharged, admitted to bail, or sent to prison to await
the action of a Grand Jury. At such hearing, the pris-
oner is usually notified that he is at liberty to make a
statement regarding the charge against him; that he
need not do so unless he desires; but that if he does, his
testimony may be subsequently used against him at the
regular trial of the case. But such proceedings, ac-
cording to Salvador, were forbidden by ancient He-
brew law. (The preliminary examination, therefore,
by Annas or Caiaphas was illegal) The reason of the
rule, as above stated, was to protect the prisoner
against furnishing evidence that might be used against
him at the regular trial of his case. The private ex-
amination of Jesus illustrates the justice of the rule
and the necessity of its existence, for it was undoubt-

THE BRIEF 243

edly the purpose of Annas or Caiaphas to gather ma-
terial in advance to lay before the regularly assembled
Sanhedrin and thereby expedite the proceedings at the
expense of justice.

If it be contended that the leading of Jesus to Annas
first, which St. John alone relates, was merely in-
tended to give the aged Sanhedrist an opportunity to
see the prisoner who had been causing such commotion
in the land for several years; and that there was no
examination of Jesus before Annas — the interrogation
by the high priest concerning the disciples and the
doctrine of Jesus being construed to refer to an exami-
nation by Caiaphas, and being identical with the night
trial referred to by Matthew and Mark — reply may
be made that, under any construction of the case, there
was at least an illegal appearance before Annas, as
mere vulgar curiosity to see a celebrated prisoner was
no excuse for the violation of the spirit if not the
letter of the law. It is inconceivable, however, to
suppose that Annas did not actually interrogate Jesus
concerning His disciples, His doctrine, and His per-
sonal pretensions. To suppose that he demanded to
see Jesus for no other reason than to get an impression
of His looks, is to insult common sense. If Annas ex-
amined the prisoner, though only slightly, concerning
matters affecting the charges against Him that might
endanger His life or liberty, he had violated a very
important rule of Hebrew criminal procedure. The
question of the amount of examination of the accused
is immaterial.

It is not known whether Annas at this time sat in

244 THE TRIAL OF JESUS

the Great Sanhedrin as a judge. He had been deposed
from the high priesthood nearly twenty years before
by the procurator Valerius Gratus, for imposing and
executing capital sentences. But he was, nevertheless,
still all-powerful in the great Council of the Jews.
Edersheim says that though " deprived of the Pontifi-
cate, he still continued to preside over the Sanhe-
drin." x Andrews is of the opinion that " he did in
fact hold some high official position, and this probably
in connection with the Sanhedrin, perhaps as occa-
sional president." 2 Basing his criticism upon the
words in Luke, " Annas and Caiaphas being the high
priests," 3 Dr. Plummer believes " that between them
they discharged the duties, or that each of them in dif-
ferent senses was regarded high priest, Annas de jure,
and Caiaphas de factor 4 This is a mere supposition,
however, since there is no historical evidence that An-
nas was restored to the pontificate after his deposition
by Valerius Gratus, A.D. 14.5 The phrase, " Annas and
Caiaphas being high priests," refers to the fifteenth
year of the reign of Tiberius Caesar, which was A.D. 26.
After all, it is here again an historical more than a
legal question, whether Annas was an official or not at
the time of the appearance of Jesus before him. In
either case his preliminary examination of the Christ
was illegal. If he was a member of the Sanhedrin, the
law forbade him to hold an informal preliminary ex-

1 "Life and Times of Jesus the Messiah," vol. i. p. 264.

2 "The Life of Our Lord," p. 142.

3 Luke iii. 2.

4 Plummer, St. Luke, in "International Critical Commentary," pp. 84, 515.

5 Josephus, "Ant.," XVIII. chap. ii. 2.

THE BRIEF 245

animation at night. He certainly could not do this
while sitting alone. If he was not a magistrate, as
Dupin very properly contends, this fact only added to
the seriousness of the illegality of subjecting a prisoner
to the whimsical examination of a private citizen.

Whether a member of the Sanhedrin or not, Annas
was at the time of Christ and had been for many years
its dominating spirit. He himself had been high
priest. Caiaphas was his son-in-law, and was suc-
ceeded in the high priesthood by four sons of Annas.
The writer does not believe that Annas had any legal
connection with the Sanhedrin, but, like many Ameri-
can political bosses, exercised more authority than the
man that held the office. He was simply the political
tool of the Roman masters of Judea, and the members
of the Sanhedrin were simply figureheads under his
control.

Again, the private examination of Jesus was marked
by an act of brutality which Hebrew jurisprudence
did not tolerate. This was not enumerated above as
an error, because it was not probably a violation of any
specific rule of law. But it was an outrage upon the
Hebrew sense of justice and humanity which in its
normal state was very pure and lofty.

" The high priest then asked Jesus of his disciples
and of his doctrine. Jesus answered him, I spake
openly to the world; I ever taught in the Synagogue,
and in the Temple, whither the Jews always resort;
and in secret have I said nothing. Why askest thou
me? ask them which heard me, what I have said unto
them: behold, they know what I said." In this reply

246 THE TRIAL OF JESUS

Jesus planted Himself squarely upon His legal rights
as a Jewish citizen. " It was in every word the voice
of pure Hebrew justice, founded upon the broad prin-
ciple of their judicial procedure and recalling an un-
just judge to the first duty of his great office."

" And when he had thus spoken, one of the officers
which stood by struck Jesus with the palm of his hand,
saying, Answerest thou the high priest so? " Again
the Nazarene appealed for protection to the procedure
designed to safeguard the rights of the Hebrew pris-
oner. "Jesus answered him, If I have spoken evil,
bear witness of the evil: but if well, why smitest
thou me? " 1

We have seen that, under Hebrew law, the witnesses
were the accusers, and their testimony was at once the
indictment and the evidence. We have also seen that a
Hebrew prisoner could not be compelled to testify
against himself, and that his uncorroborated confession
could not be made the basis of a conviction. " Why
askest thou me? ask them that heard me, what I have
said unto them." This was equivalent to asking: Do
you demand that I incriminate myself when our law
forbids such a thing? Why not call witnesses as the
law requires? If I am an evil-doer, bear witness of
the evil, that is, let witnesses testify to the wrongdoing,
that I may be legally convicted. If I am not guilty
of a crime, why am I thus maltreated?

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

1 John xviii. 19-23.

THE BRIEF 247

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 for-
mal 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 assurance against all dangers or
errors of testimony." — SALVADOR, " Institutions de
Mo'ise," p. 365.

V^ 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.

ty'The evidence of the leading witnesses constituted the
charge. There was no other charge: no more for-
mal indictment. Until they spoke, and spoke in
the public assembly, 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 evi-
dence 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.
148

THE BRIEF

249

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. no.

FACT AND ARGUMENT

The Gospel records disclose two distinct elements
of illegality in the indictment against Jesus: (i) The
accusation, at the trial, was twofold, vague, and indefi-
nite, 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 ele-
mentary 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 jus-
tice. Under that system there was no such body as the
modern Grand Jury, and no committee of the Sanhe-
drin exercised similar accusatory functions. The lead-
ing witnesses, and they alone, presented charges. It
follows then, of necessity, that the ancient Hebrew in-
dictment, unlike the modern indictment, carried with
it a certain presumption of guilt and had certain evi-
dentiary force. This could not be otherwise, since the

25o THE TRIAL OF JESUS

testimony of the leading witnesses was at once the in-
dictment and the evidence offered to prove it.

Again, in the very nature of things an indictment
should, and under any enlightened system of jurispru-
dence, 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 pre-
pare his defense. Most modern codes have sought to
promote clearness and certainty in indictments by re-
quiring the charging of only one crime in one indict-
ment, and in language so clear and simple that the na-
ture of the offense charged may be easily understood.

Now Salvador says that " certainty in the indict-
ment " 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 indict-
ment against the Christ. This subject was too exhaus-
tively discussed in the beginning of the Brief to war-
rant 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 institution and to seduce the people
from their ancient allegiance, in the matter of the de-
struction of the Temple; and the charge of blasphemy
preferred by Caiaphas himself in the adjuration which
he administered to Jesus. When the false witnesses

THE BRIEF

251

failed to agree, their contradictory testimony was re-
jected and the charge of sedition was abandoned. And
before Jesus had time to answer the question concern-
ing sedition, another distinct charge, that of blas-
phemy, was made in almost the same breath.1 Did
this procedure tend to promote " certainty in the in-
dictment"? Did it not result in the complete destruc-
tion of all clearness and certainty? Are we not justi-
fied in supposing that the silence of Jesus in the
presence of His accusers was at least partially attribu-
table 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; 2
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 San-
hedrin 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
assumed 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
God." 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

1 Mark xiv. 58-61. 2 Matt. xxvi. 60-63.

252 THE TRIAL OF JESUS

an accuser. Therefore, the indictment against Jesus
was illegally presented.

The writer believes that the above is a correct inter-
pretation 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 im-
partiality require consideration of another view. Sev-
eral 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 identity with God
when He declared that He was able to destroy the
Temple and to build it again in three days,1 and that
the question of the high priest, " I adjure thee by the
living God, that thou tell us whether thou be the
Christ, the Son of God," flowed naturally from and
had direct reference to the charge of being able to de-
stroy 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 diffi-
culties. 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 sug-

1 Matt. xxvi. 63.

THE BRIEF

n-S3

gested that Jesus had claimed to be the Christ, the Son
of God. In the second place, the contention that the
two charges are substantially the same ignores the lan-
guage of Mark, " But neither so did their witness
agree together," * which was certainly not injected by
the author of the second Gospel as a matter of mere
caprice or pastime. This language, legally inter-
preted, 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 passage in Matthew, " I am able to destroy
the temple of God 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 passage 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 accu-
sation 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." 2 This second interpreta-
tion, which we believe to be the better, establishes the

1 Mark xiv. 59. 2 Acts vi. 14.

254 THE TRIAL OF JESUS

existence at the trial of Christ of two distinct charges :
that of sedition, based upon a threat to assault existing
institutions; and that of blasphemy, founded upon the
claim of equality with God. And, in the light of this
interpretation, the illegality in the form of the indict-
ment 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 compe-
tent 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 writ-
ten indictments among the ancient Hebrews. " The
Jewish Encyclopedia ' says that accusations were
probably in writing, but that it is not certain.1 A pas-
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 in-
dictment. 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 pre-
ferred against Jesus.

1 "Jewish Encyc," vol. i. p. 163.

POINT IV

THE PROCEEDINGS OF THE SANHEDRIN
AGAINST JESUS WERE ILLEGAL BE-
CAUSE THEY WERE CONDUCTED AT
NIGHT

LAW

* Let a capital offence be tried during the day, but sus-
pend it at night." — MlSHNA, Sanhedrin IV. i.

" Criminal cases can be acted upon by the various
courts during day time only, by the Lesser Synhe-
drions 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 thor-
ough 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 pronounce no valid verdict or judg-

255

<iS6 THE TRIAL OF JESUS

ment. A court has no jurisdiction if it convenes and
acts at a time forbidden by law.

One is naturally disposed to deride the reason as-
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 ap-
paratus 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 natu-
rally asks why the Areopagus of Athens always held
its sessions in the night and in the dark.1

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 morn-
ing.2 St. Luke tells us that there was a daybreak
meeting,3 which was evidently intended to give a sem-
blance of legality and regularity to that rule of He-
brew 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 sup-
posed 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 nobody knows. According to
one tradition Annas owned a house on the Mount of
Olives close to the booths or bazaars under the " Two

1 Fiske, "Manual of Classical Literature," iii. Sec. 108; Smith, "Dic-
tionary of Greek and Roman Antiquities," 89a.

2 See discussion of Point I. 3 Luke xxii. 66.

THE BRIEF iS1

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 gen-
erally 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 re-
lated, Annas being the father-in-law of Caiaphas, oc-
cupied different apartments in the same place. But
these questions are mere matters of conjecture and
have no real bearing upon the present discussion, ex-
cept 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 sup-
pose 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 multitude," and to the

258 THE TRIAL OF JESUS

thought of the Master: " But this is your hour, and
the power of God." Luke tells us that the members
of the Sanhedrin " feared the people." x Mark in-
forms us that they had resolved not to attempt the
arrest and execution of Jesus at the time of the Pass-
over, " lest there be an uproar of the people." 2

Jesus had taught daily in the Temple, and had fur-
nished 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." 3 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. Im-
mediate 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 remark-
able 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 institute against Him. They
knew that the daylight trial, under proper legal forms,
with the friends of Jesus as witnesses, would upset

1 Luke xxii. 2. 2 Mark xiv. 2.

3 Mark xiv. i; Matt. xxvl. 4 (Consilium fecerunt ut Jesum dolo tenerent et
occiderent).

THE BRIEF 259

their plans by resulting in His acquittal. They re-
solved, 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 viola-
tion of law, became the parent of nearly every legal
outrage that was committed against Him. The selec-
tion of the midnight hour for such a purpose resulted
not merely in a technical infraction of law, but ren-
dered it impossible to do justice either formally or sub-
stantially under rules of Hebrew criminal procedure.

POINT V

THE PROCEEDINGS OF THE SANHEDRIN
AGAINST JESUS WERE ILLEGAL BE-
CAUSE THE COURT CONVENED BE-
FORE THE OFFERING OF THE MORN-
ING SACRIFICE

LAW

*j 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. Le-
MANN, " Jesus Before the Sanhedrin," p. 109.

V Since the morning sacrifice was offered at the dawn
of day, it was hardly possible for the Sanhedrin
to assemble until the hour after that time." —
Mishna, " Tamid, or of the Perpetual Sacrifice,"
C. III.

FACT AND ARGUMENT

The fact that the Sanhedrin convened before the
offering of the morning sacrifice constitutes the fifth
illegality. This error is alleged upon the authority of
MM. Lemann, who, in their admirable little work
entitled "Jesus Before the Sanhedrin," have called
attention to it. It is very difficult, however, to deter-

260

THE BRIEF 261

mine whether this was a mere irregularity, or was
what modern jurists would call a material error.
From one point of view it seems to be merely a repeti-
tion of the rule forbidding the Sanhedrin to meet at
night. The morning sacrifice was offered at the break
of day and lasted about an hour. A session of the
court before the morning sacrifice would, therefore,
have been a meeting at night, which would have been
an infringement of the law. But this was probably not
the real reason of the rule. Its true meaning is doubt-
less to be found in the close connection that existed
between the Hebrew law and the Hebrew religion.
The constitution of the Hebrew Commonwealth was
an emanation of the mind of Jehovah, the Temple in
which the court met was His residence on earth, and
the judges who formed the Great Sanhedrin were the
administrators of His will. It is most reasonable,
then, to suppose that an invocation, in sacrifice and
prayer, of His guidance and authority would be the
first step in any judicial proceedings conducted in His
name.

It is historically true that a session of the Sanhedrin
in the palmiest days of the Jewish Commonwealth was
characterized by all the religious solemnity of a ser-
vice in the synagogue or the Temple. It is entirely
probable, therefore, that the morning sacrifice was
made by law an indispensable prerequisite to the as-
sembling of the supreme tribunal of the Jews for the
transaction of any serious business. On any other sup-
position the rules of law cited above would have no
meaning. We have reason to believe, then, that the

262 THE TRIAL OF JESUS

offering of the morning sacrifice was a condition
precedent to the attachment of jurisdiction, and with-
out jurisdiction the court had no authority to act.
That the morning sacrifice was offered each day,
whether the court assembled or not, as a religious re-
quirement, does not alter the principle of law above
enunciated.

But it may be asked: How do we know that the
morning sacrifice was not offered? The answer is that
the whole context of the Scriptures relating to the trial
shows that it could not have been offered. Further-
more, a simple and specific reason is that the time pre-
scribed by law for conducting the morning service was
between the dawn of day and sunrise. Then, if the
court convened between two and three o'clock in the
morning, it is very certain that the sacrifice had not
been offered. It is true that there was a morning ses-
sion of the Sanhedrin. But this was held simply to
confirm the action of the night session at which Jesus
had been condemned. In other words, the real trial
was at night and was held before the performance of
the religious ceremony, which was, in all probability,
a prerequisite to the attachment of jurisdiction.

POINT VI

THE PROCEEDINGS AGAINST JESUS
WERE ILLEGAL BECAUSE THEY WERE
CONDUCTED ON THE DAY PRECED-
ING A JEWISH SABBATH; ALSO ON
THE FIRST DAY OF THE FEAST OF
UNLEAVENED BREAD AND THE EVE
OF THE PASSOVER

LAW

"\Court must not be held on the Sabbath, or any holy
day." — " Betza, or of the Egg," Chap. V. No. 2.

'VThey shall not judge on the eve of the Sabbath, nor
on that of any festival." — MlSHNA, Sanhedrin
IV. 1.

"No court of justice in Israel was permitted to hold
sessions on the Sabbath or any of the seven Biblical
holidays. In cases of capital crime, no trial could
be commenced on Friday or the day previous to
any holiday, because it was not lawful either to
adjourn such cases longer than over night, or to
continue them on the Sabbath or holiday." —
Rabbi Wise, " Martyrdom of Jesus," p. 67.

FACT AND ARGUMENT

No Hebrew court could lawfully meet on a Sab-
bath or a feast day, or on a day preceding a Sabbath

or a feast day.

263

264 THE TRIAL OF JESUS

Concerning the Sabbath day provision Maimonides
offers the following reason for the rule: " As it is re-
quired to execute the criminal immediately after the
passing of the sentence, it would sometimes happen
that the kindling of a fire would be necessary, as in the
case of one condemned to be burned; and this act
would be a violation of the law of the Sabbath, for it
is written, ' Ye shall kindle no fire in your habitations
on the Sabbath day.'"1 (Exodus xxxv. 3.)

Under modern practice, sessions of court may be
adjourned from day to day, or, if need be, from week
to week. But under the Hebrew system of criminal
procedure the court could not adjourn for a longer
time than a single night. Its proceedings were, so to
speak, continuous until final judgment. As the law
forbade sessions of court on Sabbath and feast days, it
became necessary to provide that courts should not
convene on the day preceding a Sabbath or a feast day,
in order to avoid either an illegal adjournment or an
infringement of the rule relating to the Sabbath and
feast days.

Now Jesus was tried by the Sanhedrin on both a
feast day and a day preceding the Sabbath. And, at
this point, a clear conception of the ancient Jewish
mode of reckoning time should be had. The Jewish
day of twenty-four hours began at one sunset and
ended with the next. But this interval was not divided
into twenty-four parts or hours of equal and invariable
length. Their day proper was an integral part of time
and was reckoned from sunrise to sunset. Their night

1 Maimonides, "Sanhedrin" II.

THE BRIEF 265

proper was likewise a distinct division of time and was
measured from sunset to sunrise. An hour of time, ac-
cording to modern reckoning, is invariably sixty min-
utes. But the ancient Jewish hour was not a fixed
measure of time. It varied in length as each successive
day and night varied in theirs at different seasons of
the year. Neither did the Jews begin their days and
nights as we do. Our day of twenty-four hours always
begins at midnight. Their day of twenty-four hours
always began at one sunset and ended with the next.

Now Jesus was tried by the Sanhedrin on the 14th
Nisan, according to the Jewish calendar; or between
the evening of Thursday, April 6th, and the afternoon
of Friday, April 7th, A.D. 30, according to our calen-
dar. The 14th Nisan began at sunset on April 6th and
lasted until sunset on April 7th. This was a single
Jewish day, and within this time Jesus was tried and
executed. According to our calendar, the trial and
execution of Jesus took place on Friday, April 7th.
This was the day preceding the Jewish Sabbath, which
came on Saturday, according to our reckoning. And
on a day preceding the Sabbath no Jewish court could
lawfully convene. This is the first error suggested
under Point VI.

Again, it is beyond dispute that the Feast of Un-
leavened Bread had begun and that the Passover was
at hand when Jesus was tried by the Sanhedrin.1 This
was in violation of a specific provision of Hebrew
law, and constitutes the second error alleged under
Point VI.

1 John xviii. 28; Luke xxii. 1; Mark xiv. 1; Matt. xxvi. 2.

266 THE TRIAL OF JESUS

There seems to be some conflict among the authori-
ties as to whether Jesus was tried on the first day of
the celebration of the feast of the Passover or on the
day preceding. But the question is immaterial from a
legal point of view, as the law forbade a trial either
on a feast day or on the day preceding, for reasons
above stated.

This violation of the law relating to the Sabbaths
and feast days, like that relating to night sessions of
the Sanhedrin, resulted in still other errors. It is
necessary to mention only one of these at this point.
The proceedings of the Sanhedrin were recorded by
two scribes or clerks. Their records were to be used
on the second day of the trial in reviewing the pro-
ceedings of the first. But Hebrew law forbade any
writing on a Sabbath or a holy day. How was it pos-
sible, then, to keep a record of the proceedings, if
Jesus was tried on a Sabbath and also on a feast day,
without violating a rule of law? If no minutes of the
meeting were kept, a most glaring irregularity is
apparent.

POINT VII

THE TRIAL OF JESUS WAS ILLEGAL BE-
CAUSE IT WAS CONCLUDED WITHIN
ONE DAY

LAW

" A criminal case resulting in the acquittal of the ac-
cused may terminate the same day on which the
trial began. But if a sentence of death is to be
pronounced, it can not be concluded before the
following day." — MlSHNA, Sanhedrin IV. i.

FACT AND ARGUMENT

CARE and conservatism, precaution and delay, were
the characteristic features of the criminal procedure
of the ancient Hebrews. The principal aphorism of
the Pirke Aboth is this: " Be cautious and sloiv in
judgment, send forth many disciples, and make a fence
around the law" x The length and seriousness of their
deliberations in criminal proceedings of a capital
nature were due to their supreme regard for human
life. " Man's life belongs to God, and only according
to the law of God may it be disposed of." " Whoso-
ever preserves one worthy life is as meritorious as if
he had preserved the world." These and similar max-
ims guided and controlled Hebrew judges in every

1 Mishna, "Capita Patrum," I, I.

267

268 THE TRIAL OF JESUS

capital trial. Their horror of death as the result of
a judicial decree is shown by the celebrated saying:
" The Sanhedrin which so often as once in seven years
condemns a man to death, is a slaughter-house." 1

To assure due deliberation and reflection in a case
where a human life was at stake, Hebrew law required
that the trial should last at least two days, in case of the
conviction of the accused. In case of an acquittal the
trial might terminate within a single day. Before con-
demnation could be finally decreed a night had to in-
tervene, during which time the judges could sleep,
fast, meditate, and pray. At the close of the first day's
trial they left the judgment hall and walked home-
ward, arm in arm, discussing the merits of the case.
At sunset they began to make calls upon each other,
again reviewing among themselves the facts in evi-
dence. They then retired to their homes for further
meditation. During the intervening night they ab-
stained from eating heavy food and from drinking
wine. They carefully avoided doing anything that
would incapacitate them for correct thinking. On the
following day they returned to the judgment hall and
retried the case. The second trial was in the nature
of a review and was intended to detect errors, if there
were any, in the first trial.2 It was not until the after-
noon of this day that a final decree could be made and
that a capital sentence could follow.

Now the Gospel record very clearly discloses the
fact that Jesus was arrested, tried, and executed within
the limits of a single day. Neither the exact hour of

1 Mishna, "Treatise Makhoth." 2 See Part II, Chap. V.

THE BRIEF 269

His arrest, nor of His trial, nor of His execution is
known. But it is positively certain that all took place
between sunset, the beginning of Nisan 14, and sunset,
the beginning of Nisan 15. This was the interval of
a single Jewish day, Nisan 14. And within such an
interval of time it was illegal to finally condemn a man
to death under Hebrew law. Even Stapfer, who con-
tends that the trial was legal and that forms of law
were generally observed, admits this error. He asserts
that the precipitate conduct of the members of the
Sanhedrin was not only opposed to the spirit of He-
brew conservatism in the matter of criminal procedure
but was a breach of a specific provision of the criminal
code.1

It is true that there were two distinct trials: one
between 2 and 3 A.M., Friday, April 7th, which
is recorded by Matthew2 and Mark,3 and a second
about daybreak of the same day, recorded by Mat-
thew,4 Mark,5 and Luke.6 But both these trials were
had within one day — indeed, within six hours of each
other. The judges did not try the case and then retire
to their homes for sleep, prayer, and meditation until
the following day, as the law required. Even if they
had done so, they would not have avoided an illegal
procedure, inasmuch as the trial had been illegally
begun on a feast day and the eve of the Sabbath, and
it would have been impossible to avoid the error al-
leged in Point VII. For if they had deferred the sen-

1 Edmund Stapfer, "Life of Jesus." 4 Matt, xxvii. I.

2 Matt. xxvi. 57-66. 5 Mark xv. I.

3 Mark xiv. 55-64. 6 Luke xxii. 66-71.

270 THE TRIAL OF JESUS

tencing and execution of Jesus until the following day
it would still have been illegal, since the next day was
both a Sabbath and a holy day (the Passover).

Several writers who contend that there was a regular
trial of Jesus assert that the morning meeting of the
Sanhedrin was intended to give a semblance of legality
and regularity to that rule of Hebrew law which re-
quired at least two trials. But it will readily be seen
that this was a subterfuge and evasion, since both trials
were had on the same day, whereas the law required
them to be held on different days.

POINT VIII

THE SENTENCE OF CONDEMNATION PRO-
NOUNCED AGAINST JESUS BY THE
SANHEDRIN WAS ILLEGAL BECAUSE
IT WAS FOUNDED UPON HIS UNCOR-
ROBORATED CONFESSION

LAW

" We have it as a fundamental principle of our juris-
prudence that no one can bring an accusation
against himself. Should a man make confession
of guilt before a legally constituted tribunal, such
confession is not to be used against him unless prop-
erly attested by two other witnesses." — MAIMON-
, IDES, Sanhedrin IV. 2.

y

" Not only is self-condemnation never extorted from
the defendant by means of torture, but no attempt
is ever made to lead him on to self-incrimination.
Moreover, a voluntary confession on his part is not
admitted in evidence, and therefore not competent
to convict him, unless a legal number of witnesses
minutely corroborate his self- accusation." — MEN-
DELSOHN, " Criminal Jurisprudence of the Ancient
Hebrews," p. 133.

FACT AND ARGUMENT

MORE than one system of jurisprudence has refused
to permit a conviction for crime to rest upon an un-
corroborated confession. But it remained for the

271

272 THE TRIAL OF JESUS

ancient Hebrews to discover the peculiar reason for
the rule, that the witness who confessed was " his own
relative"; and relatives were not competent witnesses
under Hebrew law. Modern Jewish writers, how-
ever, have assigned other reasons for the rule. Rabbi
Wise says: " Self-accusation in cases of capital crime
was worthless. For if not guilty he accuses himself
of a falsehood; if guilty he is a wicked man, and no
wicked man, according to Hebrew law, is permitted
to testify, especially not in penal cases." 1 Mendel-
sohn says that " the reason assigned for this enactment
is the wish to avoid the possibility of permitting judi-
cial homicide on self-accusing lunatics, or on persons
who, in desperation, wish to cut short their earthly ex-
istence, and to effect this falsely accuse themselves of
some capital crime." 2

Modern jurists have assigned still other reasons for
the rule as it has existed in modern law.3 Men have
been known to confess that they were guilty of one
crime to avoid punishment for another. Morbid and
vulgar sentimentality, such as love of newspaper no-
toriety, have induced persons of inferior intelligence,
who were innocent, to assume responsibility for crimi-
nal acts.

But whatever the reason of the rule, Jesus was con-
demned to death upon His uncorroborated confession,
in violation of Hebrew law.

" For many bare false witness against him, but their

1 "Martyrdom of Jesus," p. 74.

2 "Criminal Jurisprudence of the Ancient Hebrews," p. 133, n. 311.

3 See Part II, Chap. IV.

THE BRIEF 273

witness agreed not together. And there arose certain,
and bare false witness against him, saying, We heard
him say, I will destroy this temple that is made with
hands, and within three days I will build another
made without hands. But neither so did their witness
agree together. And the high priest stood up in the
midst, and asked Jesus, saying, Answerest thou noth-
ing? what is it which these witness against thee? But
he held his peace, and answered nothing. Again the
high priest asked him, and said unto him, Art thou the
Christ, the Son of the Blessed? And Jesus said, I am:
and ye shall see the Son of Man sitting on the right
hand of power, and coming in the clouds of Heaven.
Then the high priest rent his clothes, and saith, What
need we any further witnesses? ye have heard the blas-
phemy: what think ye? And they all condemned him
to be guilty of death. And some began to spit on him,
and to cover his face, and to buffet him, and to say
unto him, Prophesy." 1

It will be seen from a perusal of this report of the
trial that it was sought to condemn Jesus first on the
charge of sedition, that is, that He had threatened the
destruction of the Temple and thereby endeavored to
seduce the people from their national allegiance.
"But their witness agreed not together"; and under
Hebrew law they were required to reject contradictory
testimony and discharge the prisoner, if the state was
unable to prove its case. This is what should have
been done at this point in the trial of Jesus. But, in-
stead, the judges, in their total disregard of law,

1 Mark xiv. 56-65.

274 THE TRIAL OF JESUS

turned to the accused and said: " Answerest thou
nothing? what is it which these witness against thee? "
" But he held his peace, and answered nothing." By-
remaining silent, Jesus only exercised the ordinary
privilege of a Jewish prisoner to refuse to incriminate
himself. The modern rule that the accused cannot be
made to testify against himself, unless he first volun-
tarily takes the witness stand in his own behalf, was
substantially true among the ancient Hebrews. But
here we find Caiaphas insisting that Jesus incriminate
Himself. And he continues to insist in the matter of
the second charge, that of blasphemy. " And the high
priest asked him, and said unto him, Art thou the
Christ, the Son of the Blessed? " That question was
illegal, because it involved an irregular mode of crimi-
nal procedure, and because it asked for a confession
of guilt to be made the basis of a conviction. The false
witnesses had failed to agree and had evidently been
rejected and dismissed. The judges were then with-
out witnesses to formulate a charge and furnish proof
of its truth. They were thus forced to the despicable
and illegal method of asking the accused to condemn
Himself, when they knew that no confession could be
made the basis of a conviction. They were also guilty
of the illegality of formulating a charge without wit-
nesses. We have seen that only leading witnesses
could present an indictment, but here the judges be-
came the accusers, in violation of law.

In answer to the high priest's question, Jesus, feel-
ing that He could not afford at such an hour and in
such a place to longer conceal His Messiahship, an-

THE BRIEF 275

swered boldly and emphatically: "I am."1 "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 pretend-
ing to be the " Christ, the Son of God," 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 wit-
nesses, nor was their testimony legally corroborated,
because it was false and contradictory.

Again, it was the rule of Hebrew law that both wit-
nesses 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 ele-
ments necessary to constitute 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 wit-
nesses was wholly worthless, and the confession of
Jesus was the solitary and illegal basis of His con-
viction.

The failure of the Sanhedrin to secure sufficient and
competent evidence to convict Jesus must not be re-
garded as accidental, or as attributable to the hour and
to the surroundings. The popularity of the Nazarene,

1 Mark xiv. 62.

i76 THE TRIAL OF JESUS

outside the narrow circle of the Temple authorities,
was immense. The friendship of Nicodemus and Jo-
seph 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 disa-
greeable and even dangerous complications with the
civil and ecclesiastical authorities.1 Jesus was in no
sense a politician, but He was not lacking in mother
wit and practical resources. He saw through the de-
signs of Herod Antipas, who wished to get Him out
of his dominions. It will be remembered that certain
Pharisees, pretending friendship 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." 2

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 in-
comparable illustrations usually left His questioners
defenseless and chagrined. Oftentimes in these en-
counters He proclaimed eternal and universal truths

1 Matt. xii. 14-16; Mark in. 7; ix. 29, 30. 2 Luke xiii. 31, 32.

THE BRIEF

277

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
God the things that are God's," he foretold and
stamped with approval the immortal principle that
was to be embodied in the American constitution and
to remain the cornerstone of the American Common-
wealth; a truth repeated by Roger Williams when in
the forests of Rhode Island he declared that the mag-
istrate should rule in civil matters only and that man
was answerable for his religious faith to God alone.
This declaration of the Nazarene is the spiritual and
intellectual basis of the sublime doctrine of civil lib-
erty and religious freedom that finds its highest ex-
pression 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.1 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 pre-
pared to convict Him of the crime of blasphemy as
founded upon the claim of Messiahship, for Jesus had
been exceedingly cautious, during His ministry, in de-

1 Matt. xxii. 15.

278 THE TRIAL OF JESUS

daring 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 Messiahship outside the immediate
circle of the disciples.1 He forbade the devils whom
He had cast out, and that recognized Him, to pro-
claim His Messiahship.2 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.3 He revealed Him-
self 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 disci-
ples that they should tell no man that he was Jesus, the
Christ." 4

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 tes-
timony and a confession which was equally illegal.

1 John iv. 26. 3 John x. 24.

2 Mark i. 34. 4 Matt. xvi. 20.

POINT IX

THE CONDEMNATION OF JESUS WAS IL-
LEGAL BECAUSE THE VERDICT OF
THE SANHEDRIN WAS UNANIMOUS

LAW

ff A simultaneous and unanimous verdict of guilt ren-
dered on the day of the trial has the effect of an
acquittal." — MENDELSOHN, " Criminal Jurispru-
dence of the Ancient Hebrews," p. 141.

Y If none of the judges defend the culprit, i. e., all pro-
nounce him guilty, having no defender in the
court, the verdict of guilty was invalid and the sen-
tence of death could not be executed." — Rabbi
Wise, " Martyrdom of Jesus," p. 74.

FACT AND ARGUMENT

FEW stranger rules can be found in the jurispru-
dence 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

279

28o THE TRIAL OF JESUS

Hebrew organized the Sanhedrin, and, under God,
endowed it with judicial and spiritual attributes. The
Anglo-Saxon, on the shores of the German Ocean,
originated the modern jury and invested it with its dis-
tinctive 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 1 has declared
that law is the perfection of reason. But when we con-
template 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 pre-
cipitancy in capital proceedings. And what could be

1 Blackstone.

THE BRIEF 281

more precipitate than an instantaneous and unanimous
verdict? " But where all suddenly agree on convic-
tion, 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.1 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. Sev-
enty-one constituted the membership of the Great San-
hedrin. 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 constituting 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 per-
mitted to destroy a rule of action that in its general

1 Mendelsohn, p. 143.

282 THE TRIAL OF JESUS

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." * If they all condemned Him, the verdict
was unanimous and therefore illegal. The other
Evangelists do not tell us that the verdict was unani-
mous; neither do they deny it. Mark's testimony
stands alone and uncontradicted; therefore we must
assume that it is true.

Rabbi Wise 2 and Signor Rosadi 3 call attention to
the fact that the verdict was unanimous. The former
seeks to ridicule Mark as an authority because a unani-
mous 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 analysis, 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

1 Mark xiv. 63, 64. 2 "Martyrdom of Jesus," p. 74.

3 "The Trial of Jesus," p. 200.

THE BETRAYING KISS (SCHEFFER)

THE BRIEF 283

light of the authorities. Only two of the Gospel writ-
ers, Matthew and Mark, tell us of the night trial.
Both declare that " all the council " were present.1
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.

Concerning the number of judges at the second or
daybreak meeting of the Sanhedrin, both Matthew and
Mark again declare that the full membership 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." 2 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." 3 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 in-
sist that both Matthew and Mark were employing a
figure of speech, synecdoche, when they said that " all

1 Matt. xxvi. 59; Mark xiv. 55. 2 Matt, xxvii. 1.

3 Mark xv. I.

284 THE TRIAL OF JESUS

the council " were present. But these same writers
seem to think that these same Evangelists were in ear-
nest 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 una-
nimity 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 Arima-
thea, who were friends of Jesus. Nicodemus was cer-
tainly a member of the Great Sanhedrin. This we
learn from two passages of New Testament scripture.1
It is also believed that Joseph of Arimathea was a
member from a mere suggestion in another passage.2
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 truth-
fully when he said that " they all condemned him to
be guilty of death"; then it naturally and inevitably

1 John iii. I ; vii. 50. 2 Luke xxiii. 51.

/

x>

2C

THE BRIEF 285

follows that both Nicodemus and Joseph voted against
Jesus.

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 de-
fended Jesus by asking his fellow-judges this question :
" Doth our law judge any man before it hear him and
know what he doeth? " x It is asserted 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 Nico-
demus 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 day-
time, but preferred to do it at night.2

Concerning the part taken by Nicodemus in the final
proceedings, Rosadi says: "The verdict was unani-
mous. The members of the Sanhedrin who were se-
cretly 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 pro-
nouncement expressed by acclamation."

If Joseph of Arimathea was a member of the Great
Sanhedrin, it seems that he " had not consented to the

1 John vii. 51. 2 John vii. 50; xix. 39.

286 THE TRIAL OF JESUS

counsel and the deed of them." 1 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 con-
sent, 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 de-
stroy 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 refer-
ence, 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 assures 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 pronounced against Jesus.

1 Luke xxiii. 51.

POINT X

THE PROCEEDINGS AGAINST JESUS WERE
ILLEGAL IN THAT: (i) THE SEN-
TENCE OF CONDEMNATION WAS PRO-
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 passed upon anyone soever." — Talmud,
Bab., Abodah Zarah, or of Idolatry, Chap. I.
fol. 8.

" A sentence of death can be pronounced 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.

187

288 THE TRIAL OF JESUS

" Let the judges each in his turn absolve or con-
demn."— MlSHNA, 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 re-
cord the votes. One of these secretaries recorded
the votes in favor of the accused, the other those
against him." — MlSHNA, 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 pronounce for or
against a conviction." — BENNY, " Criminal Code
of the Jews," pp. 73, 74.

FACT AND ARGUMENT

In the trial of capital cases, the Great Sanhedrin
was required to meet in an apartment of the National
Temple at Jerusalem, known as the Hall of Hewn
Stones (Lishkhath haggazith). Outside of this hall
no capital trial could be conducted and no capital sen-
tence could be pronounced.1 This place was selected
in obedience to Mosaic injunction: " Thou shalt do
according to the tenor of the sentence, which they may
point out to thee from the place which the Lord shall
choose" 2 The Rabbis argued that the Great Council
could not try a capital case or pronounce a death sen-
tence, unless it met and remained in the place chosen

1 Mendelsohn, p. 98. 2 Deut. xvii. 7, 8.

THE BRIEF 289

by God, which, they contended, should be an apart-
ment of the Great Temple. The Lishkhath haggazith
was chosen, and continued for many years to be the
meeting place of the supreme tribunal.

But Jesus was not tried or condemned to death in
the Hall of Hewn Stones, as Hebrew law required.
It is clearly evident, from the Gospels, that He was
tried and sentenced in the palace of Caiaphas, proba-
bly on Mount Zion. It is contended by the Jews, how-
ever, that soon after the Roman conquest of Judea the
Great Sanhedrin removed from the sacred place to
Bethany, and from there to other places, as occasion
required. And there is a Jewish tradition that the
court returned to the accustomed place on the occasion
of the trial and condemnation of Jesus.1

In opposition to this, Edersheim says: "There is
truly not a tittle of evidence for the assumption of
commentators that Christ was led from the palace of
Caiaphas into the Council Chamber (Lishkhath hag-
gazith). The whole proceedings took place in the
former, and from it Christ was brought to Pilate." 2
St. John emphatically declares: "Then led they Jesus
from Caiaphas into the hall of judgment." 3 This
Hall of Judgment was the Praetorium of Pilate.

The first irregularity, then, noted under Point X is
that Jesus was tried and condemned in the palace of

1 '* It is important to notice that every time the necessities of the case
required the Sanhedrin returned to the Hall Gazith, or of Hewn Stones, as in
the case of Jesus and others." — "Thosephthoth, or Additions to the Talmud,"
Bab., "Sanhedrin," C. IV. fol. 37, recto.

2 Edersheim, "Life and Times of Jesus the Messiah," vol. ii. p. 556, n. 1.

3 John xviii. 28.

290 THE TRIAL OF JESUS

Caiaphas instead of the Hall of Hewn Stones, the
regular legal meeting place of the Great Sanhedrin.

The second error noted under Point X is that which
relates to the rending of garments by the high priest.
" An ordinary Israelite could, as an emblem of be-
reavement, tear his garments, but to the high priest it
was forbidden, because his vestments, being made
after the express orders of God, were figurative of his
office."1

When Jesus confessed that He was Christ the Son
of God, Caiaphas seems to have lost his balance and to
have committed errors with all the rapidity of speech.
" 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 con-
demned him to be guilty of death." 2 In this language
and conduct of the son-in-law of Annas there were sev-
eral irregularities in procedure. The first was the
rending of garments reported by Matthew and Mark,
which act was forbidden by the provisions of the
Mosaic Code, recorded in Leviticus and cited above.

But it is only fair to state the dissenting opinion on
this point. In the times of Christ it seems to have been
the custom among the Jews to rend the garments as a
sign of horror and execration, whenever blasphemous
language was heard. Edersheim states the rule:
" They all heard it — and, as the law directed, when
blasphemy was spoken, the high priest rent both his
outer and inner garment, with a rent that might never

1 MM. Lemann, "Jesus Before the Sanhedrin," p. 140.

2 Mark xiv. 63, 64.

THE BRIEF 291

be repaired." 1 The law here referred to, however, is
the Rabbinic or Talmudic and not the Mosaic law.
It should be remembered that the Mosaic Code was
the constitution or fundamental law of the ancient He-
brews. The Talmudic law embodied in the Mishna
was, in a sense, a mere commentary upon the Mosaic
law. We have seen in Chapter I of Part II of this
volume that the traditional law was based upon, de-
rived from, and inspired by the written law contained
in the Pentateuch. It is true that the Talmud, while
professing subordination to the Pentateuch, finally
virtually superseded it as an administrative code. But
the doctors never repealed a Mosaic injunction, since
it was an emanation of the mind of Jehovah and could
not be abrogated by human intelligence. When an
ancient ordinance ceased to be of practical value the
Jewish legists simply declared that it had fallen into
desuetude. And whenever a new law was proclaimed
to meet an emergency in the life of the Hebrew peo-
ple the Rabbins declared that it was derived from and
inspired by some decree which God had handed down
to Moses for the benefit of the nation. In other words,
the Mosaic Code was Israel's divine constitution
which was to serve as a standard for all future legisla-
tion. And as the Jewish lawmakers were not per-
mitted to repeal a Mosaic ordinance, neither were they
allowed to establish a rule in contravention of it.
Now the Pentateuch forbade the rending of garments.
Then did the Talmudists have a right to declare
that the law might be changed or broken in the case

1 Edersheim, "Life and Times of Jesus the Messiah," vol. ii. p. 561

a92 THE TRIAL OF JESUS

of blasphemy? That they did is denied by many
writers.

But admitting the validity of the Talmudic rule, it
is nevertheless beyond dispute that the high priest was
forbidden to rend his clothes on Sabbaths and holi-
days. And as Jesus was condemned on both a Sabbath
and a festival day, the high priest's action in rending
his clothes on that day was illegal.1

Again, the proceedings against Jesus were illegal
because the balloting was irregular. This is the third
error noted under Point X.

The Hebrew law required that each judge, when his
time came to vote upon the guilt or innocence of the
accused, should rise in his place, declare his vote, and
state his reasons for so voting. In capital cases the
youngest judge was required to vote first, in order that
he might not be unduly influenced by the example of
his seniors in age and authority. The balloting con-
tinued in this manner from the youngest member to
the high priest, who was generally among the oldest.
Two scribes — according to some writers, three — were
present to record the votes and to note the reasons
stated. These records were to be used on the second
day of the trial in comparing the arguments of the
judges on that day with those offered on the first day.
Judges who had voted for acquittal on the first day
could not change their votes on the second day. Those
who had voted for conviction on the first day might
change their votes on the second day, by assigning
good reasons. Those who had voted for conviction on

1 Rabbi Wise, "Martyrdom of Jesus," p. 74.

THE BRIEF a93

the first day could not vote for conviction on the sec-
ond day, if the reasons assigned on the second day were
radically different from those assigned on the first
day.1 It will thus be seen how very essential were the
records of the scribes and how important it was that
they should be correctly kept. Hence the necessity,
according to Benny, of a third scribe whose notes
might be used to correct any discrepancies in the re-
ports of the other two.

Now are we justified in assuming that this was the
method employed in counting votes at the trial of
Jesus? The law will not permit us to presume errors.
We must rather assume that this was the method em-
ployed, unless the Gospel record indicates, either by
plain statement or by reasonable construction, that it
was not the method used.

In this connection, let us review the language of the
Scriptures. "Ye have heard the blasphemy: what
think ye? And they all condemned him to be guilty
of death." Is it not clearly evident, from this passage,
that the balloting was not done singly, the youngest
voting first, as Hebrew law required? Can it not be
seen at a glance that the judges voted en masse? If
they did, was it possible for the scribes to record the
votes and make a note of the reasons assigned, as the
law required? If these things were not done, were the
proceedings regular?

According to Matthew, Caiaphas, before calling for
the votes exclaimed : " He hath spoken blasphemy." 2
Instead of doing this, should he not, under the law,

1 Benny, "Criminal Code of the Jews," p. 81. 2 Matt. xxvi. 65.

a94 THE TRIAL OF JESUS

have carefully concealed his opinion until the younger
members of the court had voted? Is it not a matter of
history that the opinion of the high priest was re-
garded as almost infallible authority among the an-
cient Hebrews? Did not this premature declaration
of guilt on the part of the high priest rob the subordi-
nate judges of freedom of suffrage?

The conduct of the case at the close, when the bal-
loting took place, seems to justify the view of those
writers who assert that there was no regular trial of
Jesus, but rather the action of a mob.

POINT XI

THE MEMBERS OF THE GREAT SANHE-
DRIN WERE LEGALLY DISQUALIFIED
TO TRY JESUS

LAW

" The robe of the unfairly elected judge is to be re-
spected not more than the blanket of the ass." —
MENDELSOHN, " Hebrew Maxims and Rules," p.
182.

" As Moses sat in judgment without the expectation
of material reward, so also must every judge act
from a sense of duty only." — MENDELSOHN, " He-
brew Maxims and Rules," p. 177.

" Nor must there be on the judicial bench either a re-
lation, or a particular friend, or an enemy of either
the accused or of the accuser." — Mendelsohn,
" Criminal Jurisprudence of the Ancient He-
brews," p. 108.

" He (the Hebrew judge) was, in the first instance, to
be modest, of good repute among his neighbors,
and generally liked." — BENNY, " Criminal Code
of the Jews," p. 38.

" Nor under any circumstances, was a man known to
be at enmity with the accused person permitted to
occupy a position among his judges." — BENNY,
" Criminal Code of the Jews," p. 37.

29 s

296 THE TRIAL OF JESUS

FACT AND ARGUMENT

The Gospel records disclose the fact that the mem-
bers of the Great Sanhedrin were legally disqualified
to try Jesus. This disqualification was of two kinds:
(i) A general disqualification, under Hebrew law, to
act as judges in any case; (2) a special disqualification
to sit in judgment upon the life of Jesus.

Among all the great systems of jurisprudence of the
world the ancient Hebrew system was the most exact-
ing in the matter of judicial fitness. In the palmiest
days of the Hebrew Commonwealth the members of
the Great Sanhedrin represented the most perfect
mental, moral, and physical development of the He-
brew people. A man could not be a member of this
court who had any serious mental, moral, or physical
defect. He must have been " learned in the law," both
written and unwritten. He must have had judicial
experience; that is, he must have filled three offices of
gradually increasing dignity, beginning with one of the
local courts and passing successively through two mag-
istracies at Jerusalem. He must have been an accom-
plished linguist; that is, he must have been thoroughly
familiar with the languages of the surrounding nations.
He must have been modest, popular, of good appear-
ance, and free from haughtiness. He must have been
pious, strong, and courageous. And above all, he must
have been friendly in his attitude toward the accused.1

These were the qualifications of Israel's judges
before Roman politics had corrupted them. But at the

1 See Part II, Qualifications of Judges.

THE BRIEF 297

time of Christ they had grown to be time-serving,
degenerate, and corrupt. Judea was then passing
through a period of religious and political revolution.
At such a time in any state, as all history teaches us,
the worst elements of society generally get the upper
hand and control the political currents of the day.
Many members of the Sanhedrin had themselves been
guilty of criminal acts in both public and private life.
Many of them held office by purchase — they had
bought their seats. They were thus unfitted to be
judges in any case; especially in one involving the
great question of life and death.

In order to show the general disqualification, under
the test of Hebrew law, of the members of the Great
Sanhedrin, at the time of Christ, to exercise judicial
functions, it is necessary to quote only Jewish authori-
ties. In " The Martyrdom of Jesus," Rabbi Wise
says: " The chief priests, under the iron rule of Pilate
and his wicked master, Sejan, were the tools of the
Roman soldiers who held Judea and Samaria in sub-
jection. Like the high priest, they were appointed to
and removed from office by the Roman governor of
the country, either directly or indirectly. They pur-
chased their commissions for high prices and, like
almost all Roman appointees, used them for mercenary
purposes. They were considered wicked men by the
ancient writers and must have stood very low in the
estimation of the people over whom they tyrannized.
The patriots must have looked upon them as hirelings
of the foreign despot whose rule was abhorred. Al-
though there was, here and there, a good, pious and

298 THE TRIAL OF JESUS

patriotic man among them, he was an exception. As a
general thing, and under the rule of Pilate, especially,
they were the corrupt tools of a military despotism
which Rome imposed upon enslaved Palestine."

Again, the Talmud, in which we never look for
slurs upon the Hebrew people, where slurs are not
deserved, contains this bitter denunciation of the high-
priestly families of the times of Christ: "What a
plague is the family of Simon Boethus; cursed be their
lances! What a plague is the family of Ananos;
cursed be their hissing of vipers! What a plague is
the family of Cantharus; cursed be their pens! What
a plague is the family of Ismael ben Phabi; cursed be
their fists! They are high priests themselves, their
sons are treasurers, their sons-in-law are commanders,
and their servants strike the people with staves."

In like manner the Talmud, in withering rebuke
and sarcasm, again declares that " The porch of the
sanctuary cried out four times. The first time, Depart
from here, descendants of Eli; ye pollute the Temple
of the Eternal! The second time, Let Issachar ben
Keifar Barchi depart from here, who polluted himself
and profaneth the victims consecrated to God! The
third time, Widen yourselves, ye gates of the sanctuary
and let Israel ben Phabi, the wilful, enter that he may
discharge the functions of the priesthood! Yet an-
other cry was heard, Widen yourselves, ye gates, and
let Ananias ben Nebedeus, the gourmand, enter, that
he may glut himself on the victims." *

1 "Talmud, Pesachim, or the Passover," fol. 57, verso; see also "Jesus
Before the Sanhedrin," pp. 54, 55.

THE BRIEF 299

It should be borne in mind that the high-priestly
families so scathingly dealt with by the Talmud were
the controlling spirits in the Great Sanhedrin at the
time of Christ. Were they legally qualified, then,
under the ancient and honorable tests of Hebrew law,
to be members of the highest court in the land? If
they bought their offices and used them for mercenary
purposes, as Wise asserts, were they worthy of the
great exemplar, Moses, who " sat in judgment without
the expectation of material reward"? If they thus
secured their places and prostituted them to selfish
purposes, were their robes to be respected any more
than the blanket of the ass?

The ancient Hebrew judges, in the days of Israel's
purity and glory, submitted their claims to judicial
preferment to the suffrage of a loving and confiding
people.1 They climbed the rungs of the judicial lad-
der by slow and painful degrees. Integrity and abil-
ity marked each advance toward the top. Was this
the process of promotion in the case of Caiaphas and
his fellow-judges? Did their bought and corrupted
places not brand them with the anathema of the
law?

We come now to consider the special disqualifica-
tions of members of the Sanhedrin to sit in judgment
upon the life of Jesus. The reasons for these disquali-
fications were two: (1) The members of this court
were, in the language of Jost, " burning enemies " of
Jesus, and were therefore disqualified, under Hebrew
law, to act as His judges; (2) they had determined

1 Benny, "Criminal Code of the Jews," pp. 28-41.

3oo THE TRIAL OF JESUS

upon His guilt, and had sentenced Him to death
before the trial began; and had thus outraged not only
a specific provision of Hebrew law but also a principle
of universal justice.

The various causes of the hatred of the members of
the Sanhedrin for Jesus are too numerous and pro-
found to admit of exhaustive treatment here. A thor-
ough analysis of these causes would necessitate a re-
view of the life of Christ from the manger to the
sepulcher. A few reasons will suffice.

But at this point a distinction should be made be-
tween that personal hatred which disqualifies and the
hatred and loathing of the crime that do not disqualify.
Every just and righteous judge should loathe and hate
the crime itself; and a certain amount of loathing and
dislike for the criminal is most natural and almost in-
evitable. But no judge is qualified to sit in judgment
upon the rights of life, liberty, or property of another
whom he hates as the result of a personal grudge, born
of personal experience with the prisoner at the bar.
The hatred that disqualified the members of the San-
hedrin, under Hebrew law, was that kind of hatred
that had been generated by personal interest and ex-
perience. The most merciless invective, barbed with
incomparable wit, ridicule, and satire, had been daily
hurled at them by Jesus with withering effect. With
a touch more potent than that of Ithuriel's spear He
had unmasked their wicked hypocrisy and had blaz-
oned it to the skies. Every day of His active ministry,
which lasted about three years, had been spent in de-
nouncing their shameless practices and their guilty

THE BRIEF 301

lives. The Scribes and Pharisees were proud, haughty,
and conceited beyond description. They believed im-
plicitly in the infallibility of their authority and in the
perfection of their souls. How galling, then, to such
men must have been this declaration of an obscure and
lowly Nazarene: "Verily, I say unto you, That the
publicans and the harlots go into the kingdom of God
before you."1 What impetuous invective this: "Woe
unto you, scribes and Pharisees, hypocrites! for ye de-
vour widows' houses, and for a pretense make long
prayer: therefore ye shall receive the greater damna-
tion. Woe unto you, scribes and Pharisees, hypo-
crites! for ye compass sea and land to make one prose-
lyte, and when he is made, ye make him twofold more
the child of hell than yourselves." 2 We can well im-
agine how these fiery darts pierced and tore the vanity
of a haughty and contemptuous priesthood.

Consider for a moment the difference in the spheres
of Jesus and of His enemies. He, an obscure prophet
from Nazareth in Galilee; they, the leaders of Israel
and the guardians of the Temple at Jerusalem. He,
the single advocate of the New Dispensation ; they, the
manifold upholders of the Old. He, without earthly
authority in the propagation of His faith; they,
clothed with the sanction of the law and the prestige
of a mighty past. Imagine, then, if you can, the in-
tensity of the hatred engendered by the language and
the conduct of Jesus.

That we may fully appreciate the tension of the
situation let us cast a single glance at the character of

1 Matt. xxi. 31. 2 Matt, xxiii. 14, 15.

3o2 THE TRIAL OF JESUS

the Scribes. Edersheim has written these wonderfully
graphic lines about them:

He pushes to the front, the crowd respectfully giving way,
and eagerly hanging on his utterances, as those of a recog-
nized authority. He has been solemnly ordained by the
laying on of hands; and is the Rabbi, "my great one,"
Master, amplitudo. Indeed, his hyper-ingenuity in question-
ing has become a proverb. There is not measure of his
dignity, nor yet limit to his importance. He is the " law-
yer," the " well-plastered pit," filled with the water of
knowledge, " out of which not a drop can escape," in oppo-
sition to the " weeds of unfilled soil " of ignorance. He is
the divine aristocrat, among the vulgar herd of rude and
profane " country people," who " know not the law," and
are " cursed." Each scribe outweighed all the common
people, who must accordingly pay him every honor. . . .
Such was to be the respect paid to their sayings that they
were to be absolutely believed, even if they were to declare
that to be at the right hand which was at the left, or vice-
versa.1

What could, then, be more terrific than the hatred
of such a character for an unlettered Galilean who de-
scended from the mountains of His native province to
rebuke and instruct the " divine aristocrats " in re-
ligious matters and heavenly affairs? Imagine his
rage and chagrin when he heard these words : " Woe
unto you, scribes and Pharisees, hypocrites! for ye are
like unto whited sepulchres, which indeed appear
beautiful outward, but are within full of dead men's
bones, and all uncleanness. . . . Woe unto you, scribes
and Pharisees, hypocrites! because ye build the tombs
of the prophets, and garnish the sepulchres of the

1 "Life and Times of Jesus the Messiah," vol. i. pp. 93, 94.

THE BRIEF 303

righteous, And say, If we had been in the days of our
fathers, we would not have been partakers with them
in the blood of the prophets. Wherefore ye be wit-
nesses unto yourselves, that ye are the children of them
which killed the prophets. Fill ye up then the
measure of your fathers. Ye serpents, ye generation
of vipers, how can ye escape the damnation of hell? " 1

" His exquisite irony," says Renan, " His stinging
remarks, always went to the heart. They were ever-
lasting stings, and have remained festering in the
wound. This Nessus-shirt of ridicule which the Jew,
son of the Pharisees, has dragged in tatters after him
during eighteen centuries, was woven by Jesus with a
divine skill. Masterpieces of fine raillery, their fea-
tures are written in lines of fire upon the flesh of the
hypocrite and the false devotee. Incomparable traits
worthy of a Son of God! A god alone knows how to
kill in this way. Socrates and Moliere only grazed
the skin. The former carried fire and rage to the very
marrow." 2

Are we not now justified in asserting, with Jost, that
the members of the Sanhedrin, who were none other
than the Scribes and Pharisees above described by
Jesus, were the " burning enemies " of the prisoner at
the bar? If they were, were they legally qualified to
be His judges?

But it may be argued that their hatred was simply
a form of righteous indignation provoked by His re-
peated assaults upon the national religion and the
national institutions; that it was their duty as guar-

1 Matt, xxiii. 27, 29-33. 2 "^'e ^e Jesus>" P- 2^7-

304 THE TRIAL OF JESUS

dians of both to both hate and try Him; and that they
would have been derelict in duty if they had not done
so. But it is apparent from the record and is evident
to any fair-minded reader that the enmity of the judges
toward Jesus was more personal than political, more
a private than a public affair. In support of this con-
tention, in addition to the withering language ad-
dressed to them, the matter of the purification of the
Temple may be mentioned. It will be remembered
how Jesus, with a scorpion lash, scourged the money-
changers and traders from the Sanctuary. Now it is
historically true that Annas and Caiaphas and their
friends owned and controlled the stalls, booths, and
bazaars connected with the Temple and from which
flowed a most lucrative trade. The profits from the
sale of lambs and doves, sold for sacrifice, alone were
enormous. When Jesus threatened the destruction of
this trade He assaulted the interests of Annas and his
associates in the Sanhedrin in a vital place. This
grievance was certainly not so religious as it was per-
sonal. The driving of the cattle from the stalls was
probably more effective in compassing the destruction
of the Christ than any miracle that He performed or
any discourse that He delivered. But whatever the
cause the fact is historic and indisputable that the San-
hedrists were enemies of Jesus, and therefore disquali-
fied under Hebrew law to try Him.

A second reason for the special disqualification of
the members of the Sanhedrin to sit as judges at the
trial of Christ was the fact that they had determined
upon His guilt and had sentenced Him to death before

THE BRIEF 305

the trial began. This point needs no extensive argu-
ment or illustration. Under every enlightened system
of justice the first great qualification of judges has been
that they should be unbiased and unprejudiced. Ju-
dicial proceedings are murderous and no better than
mob violence when judges and jurors enter upon the
trial of the case with a determination to convict the
accused, regardless of the testimony. The principles
underlying this proposition are fundamental and self-
evident.

Now the Gospel narratives disclose the fact that
three different meetings of the Sanhedrin were held
in the six months preceding the crucifixion, to discuss
the miracles and discourses of Jesus, and to devise
ways and means to entrap Him and put Him to death.

The first meeting was held in the latter part of the
month of September, A.D. 29, about six months before
the night trial in the palace of Caiaphas. This meet-,
ing is recorded by St. John in Chap, vii., verses 37-
53. The occasion was the Feast of Tabernacles, when
Jesus made many converts by His preaching, and at
the same time caused much apprehension among the
Pharisees, who assembled the Sanhedrin to adopt plans
to check His career. It was on this occasion that
Nicodemus defended Christ and asked the question
that shows the nature of the proceedings at that time.
" Doth our law judge any man before it hear him
and know what he doeth?" This was the voice, not
only of Hebrew but of universal justice demanding a
hearing before a condemnation. Nothing definite
seems to have been accomplished at this meeting.

3o6 THE TRIAL OF JESUS

The second session of the Sanhedrin took place in
the month of February, A.D. 30, about six weeks before
the crucifixion. The occasion of this meeting was the
resurrection of Lazarus, an account of which is given
in John xi. 41-53. The chief priests and Pharisees
seem to have been seized with consternation by the re-
ports of the progress of the propaganda of Jesus. They
had often listened contemptuously and in sullen silence
to the accounts of His miraculous performances. But
when He began to raise the dead to life, they decided
that it was about time to act. At this meeting Caia-
phas appealed to his associates in the name of the com-
mon weal. " Ye know nothing at all," he said, " nor
consider that it is expedient for us, that one man should
die for the people, and that the whole nation perish
not." 1 This seems to have been a form of condemna-
tion in which the other judges joined. " Then from
that day forth they took counsel together for to put
him to death." 2 At this second session of the Sanhe-
drin the death of Jesus seems to have been decreed in
an informal way and an opportunity was awaited for
its accomplishment.

The third meeting of the Sanhedrin took place just
a few days before the Paschal Feast.

" Now the feast of unleavened bread drew nigh,
which is called the Passover. And the chief priests
and scribes sought how they might kill him; for they
feared the people." 3 " Then assembled together the
chief priests, and the scribes, and the elders of the peo-
ple, unto the palace of the high priest, who was called

1 John xi. 49, 50. 2 John xi. 53. 3 Luke xxii. 1-3.

THE BRIEF 307

Caiaphas, and consulted that they might take Jesus by
subtilty, and kill him. But they said, Not on the feast
day, lest there be an uproar among the people." *

At this third session of the court it was agreed that
the arrest and execution of Jesus should be accom-
plished at the earliest possible date.

It will be seen that at these different sessions of the
Sanhedrin in the six months preceding the regular
trial the judges had resolved that Jesus should be done
away with at the first convenient opportunity. In
short, and in fact, their hatred was formed and their
determination fixed in the matter of the proceedings
to be instituted against Him. Were they, then, legally
qualified to act as His judges?

Again, besides prejudging Him to death had they
not demonstrated their total unfitness for any righteous
administration of justice by seeking false witnesses
against Him? Hebrew law forbade them to seek for
witnesses of any kind. They were the defenders of the
accused and, under the Hebrew system, were required
to search for pretexts to acquit and not for witnesses to
condemn.2 It was a maxim that " the Sanhedrin was
to save, not to destroy life." 3 Much more were they
forbidden to seek for false witnesses. Hebrew law de-
nounced false witnesses and condemned them to the
very punishment prescribed for those whom they
sought to convict.

"And the judges shall make diligent inquisition;
and, behold, if the witness be a false witness, and hath

1 Matt. xxvi. 3-5. 2 Benny, "Criminal Code of the Jews/' p. 56.

3 Geikie, "The Life and Words of Christ," vol. ii. p. 517.

3o8 THE TRIAL OF JESUS

testified falsely against his brother; then shall ye do
unto him, as he had thought to do unto his brother.
. . . And thine eye shall not pity; but life shall go for
life, eye for eye, tooth for tooth, hand for hand, foot
for foot." 1

But here we find the judges actually seeking testi-
mony which the law pointedly prohibited. This mat-
ter alone establishes their utter unfitness to try Jesus,
and is explicable only on the ground of the degrada-
tion into which they had fallen at the time of Christ
and on the hypothesis that their burning hatred had
overwhelmed their judgment and sense of justice.

If it be objected that the points of disqualification
above alleged were not applicable to all the judges, a
single sentence of Scripture meets the objection: " And
the chief priests and all the council sought for witness
against Jesus to put Him to death." 2 The fact that
" all the council " were willing to outrage a provision
of the fundamental law is sufficient proof that they
were all disqualified to try Christ.

Another conclusive proof of the total unfitness of
the members of the Sanhedrin to try Jesus is the fact
that they so far forgot themselves that they abandoned
all sense of self-respect and judicial dignity by brutally
striking Him and spitting in His face. We would like
to believe that this outrageous conduct was limited to
the servants of the priests, but the Gospel of St. Mark,
Chap, xiv., verse 65, clearly indicates that the judges
themselves were also guilty.

1 Deut. xix. 18-21. 2 Mark xiv. 55.

^POINT XII

THE CONDEMNATION OF JESUS WAS IL-
LEGAL BECAUSE THE MERITS OF THE
DEFENSE WERE NOT CONSIDERED

LAW

" Then shalt thou inquire, and make search, and ask
diligently." — DEUTERONOMY xiii. 14.

" The judges shall weigh the matter in the sincerity of
their conscience." — MlSHNA, Sanhedrin IV. 5.

" The primary object of the Hebrew judicial system
was to render the conviction of an innocent person
impossible. All the ingenuity of the Jewish legists
was directed to the attainment of this end." —
BENNY, " Criminal Code of the Jews," p. 56.

FACT AND ARGUMENT

THE actual trial of any criminal case shows, upon
the record, two essential parts: (1) The accusation;
(2) the defense. The absence of the elements of de-
fense makes the proceeding ex parte] and there is
really no trial. And it is impossible to conceive a
proper administration of justice where a defense is not
allowed, since the right to combat the allegations of
the indictment is the essential principle of liberty

3io THE TRIAL OF JESUS

under the law. The destruction of this right is the
annihilation of freedom by subjecting the individual
citizen to the whims and caprices of the governing
power. An ideal code of criminal procedure would
embody rules of evidence and practice perfectly
adapted to establish truth in the matter at issue be-
tween the commonwealth and the prisoner. Neither
the people nor the accused would be favored or preju-
diced by the admission or exclusion of any kind of evi-
dence. An exact interpretation and administration of
this code would result in a perfect intellectual balance
between the rights of the state and the defendant. But
such a code has never been framed, and if one were in
existence, it would be impossible to enforce it, as long
as certain judges insisted on aiding the prosecution and
others on helping the accused, in violation of standard
rules of evidence.

Now, the ancient Hebrew system of criminal proce-
dure was no such ideal one as that above described.
It should be remembered that there was no body,
under that system, corresponding to our modern Grand
Jury, to present indictments. There were no prosecut-
ing officers and no counselors-at-law, in the modern
sense. The leading witnesses preferred charges and
the judges did the rest. They examined and cross-
examined witnesses, did the summing up and were,
above all, the defenders of the accused. The rights of
the defendant seem to have alone been seriously con-
sidered. This startling maxim was a constant menace
to the integrity of the government and to the rights of
the commonwealth: "The Sanhedrin which so often

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as once in seven years condemns a man to death, is a
slaughter-house." 1 Lightfoot is of the opinion that
the Jews did not lose the power of capital punishment
as the result of the Roman conquest, but that they vol-
untarily abandoned it because the rules of criminal
procedure which they had from time to time adopted
finally became wholly unfitted for convicting anyone.
This view is unsupported by historic fact, but it is nev-
ertheless true that the legal safeguards for the protec-
tion of the rights of the accused had, in the later years
of Jewish nationality, become so numerous and strin-
gent that a condemnation was practically impossible.
The astonishing provision of Hebrew law to which we
have referred in Part II known as Antecedent Warn-
ing had the effect of securing an acquittal in nearly
every case. It is contended by many that this peculiar
provision was intended to abolish capital punishment
by rendering conviction impossible.

In the light of the principles above suggested let us
review the action of the Sanhedrin in condemning
Jesus to death upon His uncorroborated confession.
The standard of thoroughness in investigating crimi-
nal matters is thus prescribed in the Mosaic Code:
" Then shalt thou inquire, and make search, and ask
diligently." The Mishna supplements the funda-
mental law by this direction: " The judges shall weigh
the matter in the sincerity of their conscience." From
what we know of the peculiar tendency of the Hebrew
system to favor the accused we are justified in assum-
ing that the two rules just cited were framed for the

1 Mishna, Treatise "Makhoth."

3 12 THE TRIAL OF JESUS

protection of the prisoner more than for the security
of the commonwealth.

Now at this point we are led to ask: Were these
rules applied in the trial of Jesus in any sense either
for or against the accused? Did Caiaphas and the
other members of the Sanhedrin " inquire, and make
search and ask diligently " concerning the facts in-
volved in the issue between Jesus and the Hebrew peo-
ple? Did they weigh the whole matter " in the sin-
cerity of their conscience"? Is it not clearly evident
from the record that the false witnesses contradicted
themselves, were rejected and dismissed, and that Jesus
was then condemned upon His uncorroborated confes-
sion that He was the Christ, the Son of God? The
usual and natural proceeding in a Jewish criminal
trial was to call witnesses for the defendant, after the
leading witnesses had testified for the people. Was
this done in the case of Jesus? His own apostles de-
serted Him in the garden, although two of them seem
to have returned to the scene of the trial. Is it proba-
ble, in the light of the record, that witnesses were
called for the defendant? We have seen that they
could not legally convict Him upon His own confes-
sion. And there is nowhere the faintest suggestion
that witnesses other than the false ones were called to
testify against Him. The record is clear and un-
equivocal that the conviction of Jesus was upon His
uncorroborated confession. This was illegal. When
Caiaphas said, " I adjure thee by the living God that
thou tell us whether thou be the Christ, the Son of
God," Jesus answered, "Thou hast said"; that is, " I

THE BRIEF 313

am," according to Mark. Here was an issue squarely',
joined between the Commonwealth of Israel and
Jesus of Nazareth. It was incumbent upon the state
to establish His guilt by two competent witnesses
who agreed in all essential details. If these witnesses
were not present, or could not be secured, it was the
duty of the court to discharge Christ at once. This
the law provided and demanded. But this was not
done.

If, as has been contended, the false witnesses were
relied upon by the Sanhedrin to corroborate the con-
fession of Jesus, then under Hebrew law the judges
should at least have sought witnesses in His behalf, or
should have allowed His friends time to find them and
bring them in. In other words, His defense should
have been considered. However overwhelming the
conviction of the judges of the Sanhedrin that the
claims of Jesus were false and blasphemous, they were
not justified in refusing to consider the merits of His
pretensions. If a midnight assassin should stealthily
creep into the room of a sleeping man and shoot him
to death, a judge would not be legally justified in in-
structing the jury, at the close of the people's case, to
bring in a verdict of guilty, on the ground that noth-
ing that the defendant could prove would help his
case. However weak and ridiculous his defense, the
prisoner should at least be heard; and a failure to ac-
cord him a hearing would certainly result in reversal
on appeal. A refusal to consider the defense of a
prisoner under ancient Hebrew law was nothing less
than an abrogation of the forms of government and a

3 H THE TRIAL OF JESUS

proclamation of mob violence in the particular case,
for it must be remembered that Hebrew criminal law
was framed especially for the protection of the ac-
cused.

It should also be kept in mind that it would not have
been incumbent upon Caiaphas and his fellow-judges
to acquit Jesus simply because a defense had been
made. In other words, they were not bound to accept
His explanations and arguments. If they had heard
Him and His witnesses, they could have rejected His
pretensions as false and blasphemous, although they
were truthful and righteous, without incurring the
censure of mankind and the curse of Heaven, for it
would be preposterous to require infallible judgment
of judicial officers. All that can be demanded of
judges of the law is that they act conscientiously with
the lights that are in front of them. The maledictions
of the human race have been hurled at Caiaphas and
his colleagues during nineteen centuries, not because
they pronounced an illegal judgment, but because they
outraged rules of law in their treatment of the Christ;
not because they misinterpreted His defense, but be-
cause they denied Him all defense.

We should constantly keep in mind that Jesus was
entitled to have the two requirements, " Then shalt
thou inquire, and make search, and ask diligently,"
and " The judges shall weigh the matter in the sin-
cerity of their conscience," applied not only for but
against Him. That is, before the Hebrew Common-
wealth rested its case against Him, He had a right to
demand that a prima facie case be made, or in case of

THE BRIEF 315

failure to do so, that He be at once discharged. This
rule was as pointed and imperative under ancient as
under modern law, and before the merits of the defense
were required to be considered the state had to close
its case against the defendant, with a presumption of
guilt against Him, as a result of the introduction of
competent and satisfactory evidence.

If rules of law had been properly observed in the
trial of Jesus the question of the merits of His defense
would never have been raised; for it was practically
impossible to convict Him under the circumstances
surrounding the night trial in the palace of Caiaphas.
As has been before suggested, Jesus was very popular
outside the circle of the Temple authorities. So great
was His popularity that it is almost certain that two
competent witnesses could not have been secured to
convict Him of blasphemy in the sense that He had
claimed to be the Messiah. We have seen, under
Point VIII, that Jesus had confessed His Messiahship
to no one excepting the Samaritan woman, outside the
Apostolic company. Judas, then, was probably the
only witness who had heard Him declare Himself to
be the Messiah that could have been secured; and his
testimony was incompetent, under Hebrew law, be-
cause, under the supposition that Jesus was a criminal,
Judas, His apostle, was an accomplice. As to the
charge of blasphemy in the broader sense of having
claimed equality with God, upon which, according to
Salvador, Jesus was convicted, it seems from the Gos-
pel record that there would have been no difficulty in
legally convicting Him, if the Sanhedrin had met

316 THE TRIAL OF JESUS

regularly and had taken time to summon witnesses in
legal manner. For on many occasions Jesus had said
and done things in the presence of both friends and
enemies that the Jews regarded as blasphemous; such
as claiming that He and His Father were one; that He
had existed before Abraham; and that He had power
to forgive sins. But these charges were not made at
the trial, and we have no right to consider them except
as means of interpreting the mind of Caiaphas in con-
nection with the meaning of the claim of Jesus that
He was the Christ, the Son of God. If Caiaphas was
justified in construing these words to mean that Jesus
claimed identity with Jehovah, then he was justified
in inferring that Jesus had spoken blasphemy, for from
the standpoint of ancient Judaism and considering
Jesus simply as a Jewish citizen, blasphemy was the
crime that resulted from such a claim. But even from
this point of view Caiaphas was not justified in refus-
ing Jesus ample opportunity to prove His equality
with Jehovah, or at least that He was gifted with
divine power. This was all the more true because the
claim of Jesus was that of Messiahship, and according
to one line of authorities in Hebrew Messianic the-
ology the Messiah was to be clothed with divine au-
thority and power as the messenger and vicegerent of
Jehovah on earth.

But it is clearly certain that a prima facie case of
guilt was not made by the Sanhedrin against Jesus;
and, as a matter of law, He was not called upon to
make any defense. He could have refused to say a
word in answer to the accusation. He could have

THE BRIEF

3»7

asserted His legal rights by objecting that a case
against Him had not been made, by demanding that
the charges against Him be dismissed and that He be
set at liberty at once. But Jesus did not do this. He
simply confessed His Messiahship and Sonship of the
Father. This confession was not legal evidence upon
which He could have been convicted, but it did help
to create an issue, the truth or falsity of which should
have been investigated by the court.

Now, let us suppose, for argument's sake, that a
prima facie case of guilt against Jesus was made before
the Sanhedrin. What was the next legal step under
Hebrew law? What should the judges have done
after hearing the witnesses against Him? It is beyond
dispute that they should have begun at once to
" inquire, and make search, and ask diligently " con-
cerning all matters pertaining to the truthfulness and
righteousness of His claims to Messiahship. They
should have assisted Him in securing witnesses whose
testimony would have helped to establish those claims.
Having secured such testimony, they should have
weighed it " in the sincerity of their conscience." But
this they did not do.

It may be asked: What proofs could have been
offered that Jesus was " the Christ, the Son of God,"
if complete rights of defense had been accorded?
That question is difficult to answer, nearly two thou-
sand years after the trial. But if a prima facie case of
guilt had been made against Him, shifting the burden
of proof, and requiring that His claims be proved, it
may be reasonably contended that a complete defense

3i8 THE TRIAL OF JESUS

would have necessitated proofs: (i) That Jesus was
the Christ, that is, that He was the Messiah; (2) that
He was also the Son of God, that is, that He was iden-
tical with God Himself. Let us consider these two
phases of the subject and their attendant proofs in
order.

And first, what evidence could have been offered
that Jesus was the Christ, that is, the Messiah? What
method of procedure should have been employed by
the Sanhedrin in investigating His claims? Let us
suppose that Caiaphas understood that Jesus claimed
to be the long-looked-for Messiah who had come from
Jehovah with divine authority to redeem mankind and
to regenerate and rule the world. Let us not forget
that the Jews were expecting a Messiah, and that the
mere claim of Messiahship was not illegal. Such a
claim merely raised an issue as to its truth or falsity
which was to be investigated like any other proposition
of theology or law. It was not one to be either ac-
cepted or rejected without demonstration. Then when
Jesus acknowledged His Messiahship in answer to the
high priest's question it was the duty of the court either
to admit His claim and discharge Him at once, or to
summon competent witnesses, by daylight, to prove
that His pretensions were false and blasphemous.
Having rested their case, it was their duty to aid the
prisoner in securing witnesses to substantiate His
claims, and according to the spirit of Hebrew law to
view rather favorably than unfavorably such claims.
It was also incumbent upon them to apply to Jesus all
the Messianic tests of each and every school. It should

THE BRIEF 319

be remembered that at the time of Christ there were
radically different views of the attributes of the ex-
pected Messiah. No two schools agreed upon all the
signs by which the future Deliverer would be recog-
nized. Only one sign was agreed upon by all — that
He would be a scion of the House of David. The fol-
lowers of Judas of Galilee believed that the Messiah
would be an earthly hero of giant stature — a William
Tell, a Robert Bruce, an Abraham Lincoln — who
would emancipate the Jews by driving out the Romans
and permanently restoring the kingdom of David on
the earth. The school of Shammai believed that he
would be not only a great statesman and warrior, but
a religious zealot as well; and that to splendid vic-
tories on the battlefield, he would add the glorious
triumphs of religion. Radically different from both
these views, were the teachings of the gentle Hillel
and his disciples. According to these, the Messiah was
to be a prince of peace whose sublime and holy spirit
would impress itself upon all flesh, would banish all
wars, and make of Jerusalem the grand center of in-
ternational brotherhood and love. But even these con-
ceptions were not exhaustive of the various Messianic
ideas that were prevalent in Palestine in the days of
Jesus. Some of the Messianic notions were not only
contradictory but diametrically opposite in meaning.
A " prince of peace " and a " gigantic warrior " could
not well be one and the same person. And for this
reason it is apparent that, had an examination been
made, the claims of Jesus to the Messiahship could not
have been rejected by Caiaphas and the Sanhedrin,

32o THE TRIAL OF JESUS

simply because this or that attribute did not meet the
approval of this or that sect or school.

Instead of condemning Him to death for blasphemy,
when Jesus answered that He was the Christ, the Son
of God, Caiaphas should have asked a second question:
" What sign shewest thou then, that we may see and
believe thee? " It has been contended by Jewish writ-
ers that, far from denying Jesus the privilege of prov-
ing His Messiahship, He was frequently asked to give
signs and perform wonders. The reply to this is that
as far as the legal merits of the case are concerned
Jesus was not invited at the trial in the palace of Caia-
phas to show signs or give proofs of His Messiahship.
And as to the chances afforded Him at other times and
places, they were extra-judicial and were mere street
affairs in which Jesus probably refused to gratify vul-
gar curiosity and by which He was not remotely bound
legally or religiously. It is only when properly ar-
raigned and accused that a citizen under modern law
can be compelled to answer a charge of crime. The
rule was more stringent under the ancient Hebrew dis-
pensation. Private preliminary examinations, even by
judicial officers, were not permitted by Hebrew law,
as Salvador explicitly states. It was only when con-
fronted by proper charges before a legally constituted
tribunal in regular session, that a Hebrew prisoner
was compelled to answer. And at the regular trial
before the full Sanhedrin Jesus was not asked to give
evidence that would serve to exculpate Him. What
Caiaphas should have done was to notify Jesus, at the
time of the arraignment in his own house, that His life

THE BRIEF 321

was at stake and that now was the time to produce tes-
timony in His own behalf. It was the duty, further-
more, of the high priest and his associates to consult
the sacred books to see if the Messianic prophecies
therein contained were fulfilled in the birth, life, and
performances of Jesus, as these matters were devel-
oped at the trial by witnesses duly summoned in His
behalf.

It was a matter personally within the knowledge of
the judges that the time was ripe for the appearance
of the Deliverer. Not only the people of Israel,
but all the surrounding nations were expecting the
coming of a great renovator of the world. Of such an
arrival Virgil had already sung at Rome.1

A great national misfortune had already foreshad-
owed the day of the Messiah more potently than had
any individual event in the life of Jesus. When Jacob
lay dying upon his deathbed, he called around him
his twelve sons and began to pronounce upon each in
turn the paternal and prophetic blessing. When the
turn of Judah came, the accents of the dying patriarch
became more clear and animated, as he said: "Judah,
thou art he whom thy brethren shall praise: thy hand
shall be in the neck of thine enemies; thy father's chil-
dren shall bow down before thee. Judah is a lion's
whelp: from the prey, my son, thou art gone up: he

1 "Afresh the mighty line of years unroll'd,
The Virgin now, now Saturn's sway returns;
Now the blest globe a heaven-sprung Child adorns,
Whose genial power shall whelm earth's iron race,
And plant once more the golden in its place."

— Virgil, Eclogue IV.

322 THE TRIAL OF JESUS

stooped down, he couched as a lion, and as an old lion;
who shall rouse him up? The sceptre shall not depart
from Judah, nor a lawgiver from between his feet,
until Shiloh come; and unto him shall the gathering
of the people be." * The Jewish Rabbinical commen-
tators of antiquity were unanimously of the opinion
that this prophecy of Jacob referred to the day of the
Messiah. And for ages the people had been told to
watch for two special signs which would herald the
coming of the great Deliverer: (i) The departure of
the scepter from Judah; (2) the loss of the judicial
power.

The Talmudists, commenting on the above passage
from Genesis, say: " The son of David shall not come
unless the royal power has been taken from Judah";
and in another passage: "The son of David shall not
come unless the judges have ceased in Israel." 2 Now
both these signs had appeared at the time of the
Roman conquest, shortly before the birth of Christ.
At the deposition of Archelaus, A.D. 6, Judea became
a Roman province with a Roman procurator as gov-
ernor. Sovereignty then passed away forever from
the Jews. And not only was sovereignty taken from
them, but its chief attribute, the power of life and
death in judicial matters, was destroyed. Thus the
legal and historical situation was produced that had
been prophesied by Jacob. The scepter had passed
from Judah and the lawgiver from between his feet,
when Jesus stood before the Sanhedrin claiming to be
the Messiah.

1 Gen. xlix. 8-10. 2 "Sanhedrin," fol. 97, verso.

THE BRIEF 323

A fair trial in full daylight, it is believed, would
have called before His judges a host of witnesses
friendly to Jesus, whose testimony would have estab-
lished an exact fulfillment of ancient Messianic proph-
ecy in His birth, life, arrest, and trial. A judicial
record would have been made of which the following
might be regarded as an approximately correct tran-
script:

( 1 ) That the Messiah was to be born in Bethlehem:

Prophecy — But thou, Beth-lehem Ephratah, though thou
be little among the thousands of Judah, yet out of thee
shall he come forth unto me that is to be ruler in Israel ;
whose goings forth have been from of old, from ever-
lasting.— Micah v. 2.

Fulfillment — Now when Jesus was born in Bethlehem
of Judea in the days of Herod the king, behold, there
came wise men from the east to Jerusalem. — Matt.
ii. 1.

And Joseph also went up from Galilee, out of the city
of Nazareth, into Judea, unto the city of David, which
is called Bethlehem (because he was of the house and
lineage of David) , To be taxed with Mary his espoused
wife, being great with child. And so it was, that, while
they were there, the days were accomplished that she
should be delivered. And she brought forth her first-
born son, and wrapped him in swaddling clothes, and
laid him in a manger; because there was no room for
them in the inn. — Luke ii. 4-7.

(2) That the Messiah was to be born of a virgin:

Prophecy — Therefore the Lord himself shall give you a
sign; Behold, a virgin shall conceive, and bear a son,
and shall call his name Immanuel. — Isa. vii. 14.

Fulfillment — And in the sixth month the angel Gabriel
was sent from God unto a city of Galilee, named Naza-

324 THE TRIAL OF JESUS

reth, To a virgin espoused to a man whose name was
Joseph, of the house of David; and the virgin's name
was Mary. . . . And the angel said unto her, Fear not,
Mary : for thou hast found favor with God. And, be-
hold, thou shalt conceive in thy womb, and bring forth
a son, and shalt call his name Jesus. — Luke i. 26-30.
Then Joseph being raised from sleep did as the angel
of the Lord had bidden him, and took unto him his
wife: and knew her not till she had brought forth her
firstborn son: and he called his name Jesus. — Matt.
i. 24, 25.

(3) That the Messiah was to spring from the house
of David:

Prophecy — Behold, the days come, saith the Lord, that I
will raise unto David a righteous Branch, and a King
shall reign and prosper, and shall execute judgment and
justice in the earth. In his days Judah shall be saved,
and Israel shall dwell safely: and this is his name
whereby he shall be called, THE LORD OUR
RIGHTEOUSNESS.— Jer. xxiii. 5, 6.

Fulfillment — He shall be great, and shall be called the
Son of the Highest; and the Lord God shall give unto
him the throne of his father David. — Luke i. 32.
But while he thought on these things, behold, the
angel of the Lord appeared unto him in a dream, say-
ing, Joseph, thou son of David, fear not to take unto
thee Mary thy wife: for that which is conceived in her
is of the Holy Ghost. — Matt. i. 20.

(4) That the Messiah should not come until the
scepter had departed from Judah and the lawgiver
from between his feet:

Prophecy — The sceptre shall not depart from Judah, nor
a lawgiver from between his feet, until Shiloh come. —
Gen. xlix. 10.

THE BRIEF 31s

Fulfillment — And he saith unto them, Whose is this
image and superscription ? They say unto him, Caesar's.
Then saith he unto them, Render therefore unto Caesar
the things which are Caesar's; and unto God the things
that are God's. — Matt. xxii. 20, 21.
Then said Pilate unto them, Take ye him, and judge
him according to your law. The Jews therefore said
unto him, It is not lawful for us to put any man to
death. — John xviii. 31.

(5) That a forerunner like unto Elijah should pre-
pare the way of the Messiah:

Prophecy — Behold, I will send my messenger, and he shall
prepare the way before me: and the Lord, whom ye
seek, shall suddenly come to his temple, even the mes-
senger of the covenant, whom ye delight in : behold, he
shall come, saith the Lord of hosts. — Mal. iii. 1.
The voice of him that crieth in the wilderness, Pre-
pare ye the way of the Lord, make straight in the desert
a highway for our God. — Isa. xl. 3.

Fulfillment — In those days came John the Baptist, preach-
ing in the wilderness of Judea, And saying, Repent
ye : for the kingdom of heaven is at hand. For this
is he that was spoken of by the prophet Esaias, say-
ing, The voice of one crying in the wilderness, Prepare
ye the way of the Lord, make his paths straight. —
Matt. iii. 1-3.

This is he, of whom it is written, Behold, I send my
messenger before thy face, which shall prepare thy way
before thee. For I say unto you, Among those that are
born of women there is not a greater prophet than John
the Baptist. — Luke vii. 27, 28.

(6) That the Messiah should begin to preach in
Galilee:

Prophecy — In Galilee of the nations, the people that
walked in darkness have seen a great light. — Isa. ix.
1, 2.

326 THE TRIAL OF JESUS

Fulfillment — Now when Jesus had heard that John was
cast into prison, He departed into Galilee. . . . The
people which sat in darkness, saw great light; and to
them which sat in the region and shadow of death light
is sprung up. From that time, Jesus began to preach,
and to say, Repent: for the kingdom of heaven is at
hand. — Matt. iv. 12-17.

(7) That the Messiah should perform many mira-
cles :

Prophecy — Then the eyes of the blind shall be opened,
and the ears of the deaf shall be unstopped. Then shall
the lame man leap as a hart, and the tongue of the dumb
sing: for in the wilderness shall waters break out, and
streams in the desert. — Isa. xxxv. 5, 6.

Fulfillment — Then was brought unto him one possessed
with a devil, blind, and dumb, and he healed him,
insomuch that the blind and dumb both spake and saw.
— Matt. xii. 22.

But that ye may know that the Son of man hath power
upon earth to forgive sins (he said unto the sick of the
palsy), I say unto thee, Arise, and take up thy couch,
and go into thine house. And immediately he rose up
before them, and took up that whereon he lay, and de-
parted to his own house, glorifying God. — Luke v.

24» 25.

Jesus answered and said unto them, Go and shew John
again those things which ye do hear and see : The blind
receive their sight, and the lame walk, the lepers are
cleansed, and the deaf hear, the dead are raised up, and
the poor have the gospel preached to them. — Matt.

xi. 4, 5-

(8) That the Messiah should make his public entry
into Jerusalem riding upon an ass:

Prophecy — Rejoice greatly, O daughter of Zion; shout,
O daughter of Jerusalem: behold, thy King cometh

THE BRIEF 327

unto thee : he is just, and having salvation ; lowly, and
riding upon an ass, and upon a eolt the foal of an
ass. — Zech. ix. 9.

Fulfillment — And the disciples went, and did as Jesus
commanded them, And brought the ass, and the colt,
and put on them their clothes, and they set him thereon.
And a very great multitude spread their garments in the
way; others cut down branches from the trees, and
strewed them in the way. And the multitudes that went
before, and that followed, cried, saying, Hosanna to the
Son of David: Blessed is he that cometh in the name of
the Lord; Hosanna in the highest. — Matt. xxi. 6-9.

(9) That the Messiah should be betrayed by one of
his followers for thirty pieces of silver which would
finally be thrown into the potters field:

Prophecy — Yea, mine own familiar friend, in whom I
trusted, which did eat of my bread, hath lifted up his
heel against me. — Psa. xli. 9.

And I said unto them, If ye think good, give me my
price; and if not, forbear. So they weighed for my
price thirty pieces of silver. And the Lord said unto
me, Cast it unto the potter: a goodly price that I was
prized at of them. And I took the thirty pieces of
silver, and cast them to the potter in the house of the
Lord. — Zech. xi. 12, 13.

Fulfillment — Then one of the twelve, called Judas Is-
cariot, went unto the chief priests, And said unto them,
What will ye give me, and I will deliver him unto you ?
And they covenanted with him for thirty pieces of
silver. — Matt. xxvi. 14, 15.

Then Judas, which had betrayed him, when he saw
that he was condemned, repented himself, and brought
again the thirty pieces of silver to the chief priests and
elders, Saying, I have sinned in that I have betrayed the
innocent blood. And they said, What is that to us? see

328 THE TRIAL OF JESUS

thou to that. And he cast down the pieces of silver in
the temple, and departed, and went and hanged himself.
And the chief priests took the silver pieces, and said, It
is not lawful for to put them into the treasury, because
it is the price of blood. And they took counsel, and
bought with them the potter's field, to bury strangers
in. — Matt, xxvii. 3-8.

(10) That the Messiah should be a man of poverty
and of suffering; and should be despised and rejected
of men:

Prophecy — He is despised and rejected of men; a man of
sorrows, and acquainted with grief: and we hid as it
were our faces from him; he was despised, and we es-
teemed him not. — Isa. liii. 3.

Fulfillment — And Jesus said unto him, Foxes have holes,
and birds of the air have nests; but the Son of man
hath not where to lay his head. — Luke ix. 58.
And they smote him on the head with a reed, and did
spit upon him, and bowing their knees worshipped him.
And when they had mocked him, they took off the pur-
ple from him, and put his own clothes on him, and led
him out to crucify him. — Mark xv. 19, 20.

Through reasonable diligence, witnesses might have
been secured to testify to a majority, at least, of the
points above enumerated, touching Messianic proph-
ecy and fulfillment. Besides these are many others too
numerous to mention in a treatise of this kind.

The question then arises at once: Admitting that all
the evidence above suggested, marked " Prophecy "
and " Fulfillment," could have been introduced in evi-
dence at the trial before the Sanhedrin; were the
judges morally and legally bound to acquit and release

THE BRIEF 329

Jesus, if they believed this testimony to be true? We
answer unhesitatingly, yes; as far as the count in the
accusation relating to Messiahship was concerned.
But we must remember that the charge against Jesus
was not limited to His claims to Messiahship. The in-
dictment against Him was that He claimed to be " the
Christ, the Son of God." "Christ" is the English
form of the Greek translation of the word meaning
" Messiah." The real nature of the charge against the
prisoner, then, was that He claimed to be not only the
Messiah but also the Son of God. We have seen that
" Son of God " conveyed to the Sanhedrin the notion
of divine origin and of equality with Jehovah. Even
to-day there is no dispute between Jews and Christians
in regard to this construction. Jews charge that Jesus
made such a claim and Christians agree with them.
They are compelled to do so, indeed, or else abjure the
fundamental dogma of their faith — the doctrine of the
Trinity.

Now we approach the consideration of a phase of
the subject where theology and law meet and blend.
It has been sought to ridicule the contention that Jesus
should have been heard on the charge of being the Son
of God, in the sense that He was God Himself, be-
cause such a claim was not only ridiculous and frivo-
lous as a plea, but because it was blasphemous upon its
face; as being opposed, by bare assertion, to the most
fundamental and sacred precept of the Mosaic Code
and of the teachings of the Prophets: that God was
purely and wholly spiritual; that He was not only in-
corporeal but invisible, indivisible, and incomprehen-

330 THE TRIAL OF JESUS

sible. The advocates of this theory declare that Jesus
asserted, in the face of this primary belief of the He-
brews, a plurality of gods of which He was a member,
and that this assertion destroyed the very cornerstone
of Judaism, founded in the teaching of the celebrated
passage: " Hear, O Israel: The Lord our God is one
Lord." They further declare that when Jesus pre-
sented Himself in the flesh, and declared that He was
God, He insulted both the intelligence and religious
consciousness of His judges by a complete anthropo-
morphism; and that when He did this, He was not en-
titled to be heard.

One of the most radical of this class is Rabbi Wise
who, in " The Martyrdom of Jesus," says: " Had Jesus
maintained before a Jewish court to be the Son of
God, in the trinitarian sense of the terms, viz., that
He was part, person, or incarnation of the Deity, He
must have said it in terms to be understood to that
effect, as ambiguous words amount to nothing. But
if even clearly understood, the court could only have
found Him insane, but not guilty of any crime." This
is strong language, indeed, and deserves serious con-
sideration. It means nothing less than that Jesus, upon
His confession of equality and identity with God,
should have been committed as a lunatic, and not tried
as a criminal. And the real meaning of this too ex-
treme view is that the claims of Jesus, being a man in
the flesh, to membership in a plurality of gods was
such an outrageous and unheard-of thing that it
amounted to insanity; and that an insane person was
not one to be listened to, but to be committed and pro-

THE BRIEF 331

tected. The purpose of the distinguished Hebrew the-
ologian was to show by the absurdity of the thing that
Jesus was never tried before a Hebrew court; that He
never claimed to be the Son of God, and that the
Evangelical narratives are simply false. The same
writer thus continues in the same connection: " Mark
reports furthermore, that Jesus did not simply affirm
the high priest's question but added: ' And ye shall see
the Son of Man sitting on the right hand of power,
and coming in the clouds of heaven.' Jesus cannot
have said these words. Our reasons are: they are not
true; none of the judges and witnesses present ever did
see him either sitting on the right hand of power or
coming in the clouds of heaven. These words could
have originated only after the death of Jesus, when
the Jewish Christians expected his immediate return
as the Messiah and restorer of the kingdom of heaven,
so that those very men could see him coming in the
clouds of heaven. Besides, Jesus, the Pharisean Jew,
could not have entertained the anthropomorphism
that God had a right hand." 1 It is only necessary to
add that Rabbi Wise may be right, if the Gospel writ-
ers were untruthful men. Suffice it to say that we have
said enough in support of the veracity of the Evangel-
ists in Part I of this volume. If we are right that they
were truthful historians when they published these
biographies to the world, Rabbi Wise is wrong; for
according to these writers the Sanhedrin did not take
the view that Jesus was a crazy man, but that He was
a criminal. They accordingly tried Him to the extent

1 "Martyrdom of Jesus " p. 76.

33* THE TRIAL OF JESUS

of bringing an accusation against Him and of support-
ing it with a certain kind and amount of testimony,
and by then leading Him away to be crucified by the
Romans. Our contention is that the trial was not com-
plete, in that His judges did not consider the merits
of the defense of Jesus in the proceedings which they
conducted against Him.

It would be entirely consistent with the plan of this
treatise and of the special treatment of this theme to
ignore completely the question of the divinity of Jesus ;
since we have announced a legal and not a theological
consideration of the subject. But we repeat that the
theological and the legal are inseparably interwoven
in a proper handling of Point XII. If Rabbi Wise
and others are right that the anthropomorphic pre-
tensions of Jesus robbed Him of the protection of
the law, in the sense that His claims to be God in the
flesh were not worthy of consideration by a Hebrew
court, then we are wrong in making the point
that the merits of His defense should have been
considered.

Our contention is that the claims of Jesus were not
so strange and shocking as to place Him without the
pale of the law and to deny Him its ordinary protec-
tion; that His pretensions were not those of an insane
man; that if He was not the Son of God He was guilty
of blasphemy; and that if He was the Son of God He
was innocent. We further contend that all these
things were subjects of legitimate judicial examination
by Hebrew judges under Hebrew law, and that Jesus
should have had His day in court.

THE BRIEF 333

A very brief examination of the question of an-
thropomorphism in its connection with the claims of
Jesus will demonstrate the fallacy of the arguments of
Rabbi Wise and of those who agree with him. Can-
dor compels us to admit that the Jewish conception
of Jehovah at the time of the crucifixion was very for-
eign to the notion of a God of flesh and bone. Hebrew
monotheism taught the doctrine of one God who was
purely spiritual, and therefore invisible, intangible,
and unapproachable. Judaism delighted to lift its
deity above the sensual, material, and corporeal things
of earth, and to represent Him as a pure and sinless
spirit in a state of awful and supreme transcendence.
Our first impression, then, is that this dogma of divine
unity and spirituality must have received a dreadful
shock when Jesus, a carpenter of Nazareth, whose
mother, father, brothers, and sisters were known, con-
fronted the high priest and declared to him that He
was God. But the shock was certainly not so great
that Caiaphas and his colleagues, after a moment's
composure and reflection, could not have concluded
that the pretensions of Jesus were not wholly at vari-
ance with the revelations of Hebrew theology in the
earlier years of the Commonwealth of Israel. They
might have judged His claims to be unfounded, but
they were certainly not justified in pronouncing Him
insane, or in ignoring His rights under the law to be
heard and to have His defense considered. Their
arrest and trial of the prisoner was the consummation
of a number of secret meetings in which the astound-
ing personality and marvelous performances of Jesus

334 THE TRIAL OF JESUS

were debated and discussed with fear and trembling.
The raising of Lazarus from the dead had created a
frightful panic among the Sadducean oligarchy. Far
from regarding Him as an obscure person whose
claims were ridiculous and whose mind was unbal-
anced, the priests feared lest all men might believe on
Him, and boldly declared that such was the influence
of His deeds that His single life might be balanced
against the existence of a whole nation.1

What the judges of the Sanhedrin should have done
in examining the merits of the defense of Jesus was:
(i) To consider whether, in the light of Hebrew
scripture and tradition, a god of flesh and bone, repre-
senting the second person of a Duality or a Trinity of
gods, was possible; (2) to weigh thoroughly the claims
of Jesus, in the light of testimony properly adduced
at the trial, that He was this second person of a Dual-
ity or Trinity of gods.

In making this examination, let us bear in mind, the
members of the court were not to look forward, but
backward. They were to examine the past, not the
future, in reference to the present. Furthermore, they
were not to consider so much a Trinity as a Duality of
gods; for it must be remembered that the Holy Ghost
was not a feature of the trial. The Athanasian creed
and the proceedings of the Nicene Council were not
binding upon Caiaphas and his fellow-judges. Nor
were the teachings of the New Testament scriptures
published to the world more than a generation after
the trial. They were to consider the divine pretensions

1 John xi. 48-50.

THE BRIEF 33$

of Jesus in the light of the teachings and revelations
of the Law and the Prophets. They were to measure
His claims by these standards in the light of the evi-
dence adduced before them.

With a view to a thorough and systematic examina-
tion of the merits of the defense of Jesus, Caiaphas, as
presiding officer of the Sanhedrin, should have pro-
pounded to his fellow-judges the following initial
questions : ( i ) Do the Law and the Prophets reveal
the doctrine of a plurality of gods among the Israel-
ites? That is, has Jehovah ever begotten, or has He
ever promised to beget, a Son of equal divinity with
Himself? Was this Son to be, or is He to be born of
a woman; and to have, therefore, the form of a man
and the attributes of a human being? Was this Son
to be, or is He to be at any time identical with the
Father? Do the Law and the Prophets tell us unmis-
takably that Jehovah ever appeared upon the earth in
human form and exhibited human attributes? Do
they contain a promise from the Father that He would
send His Son to the earth to be the Redeemer of men
and the Regenerator of the world? (2) Do the creden-
tials of Jesus, the prisoner at the bar, in the light of the
evidence before us, entitle Him to be considered this
Son and Ambassador of God, sent from the Father to
redeem mankind?

It follows logically and necessarily that if affirma-
tive answers were not given to the first set of questions
an examination of the second would be useless. Let us
conceive, then, that the judges of the Sanhedrin had
employed this method. What answers, we may ask,

336 THE TRIAL OF JESUS

would they have developed to these questions from the
Sacred Books?

At the outset it is safe to say that negative answers
would have been given, if the judges had considered
the claims of Jesus with reference alone to the prevail-
ing Pharisaic teachings of the days of Jesus. And in
this connection let us note that the Hebrew conception
of Jehovah had materially changed in the time inter-
vening between the Mosaic dispensation and the com-
ing of the Christ. The spiritual growth of the nation
had been characterized at every step by marked aver-
sion to anthropomorphism— the ascription to God of
human form and attributes. In the Pentateuch there
is a prevailing anthropomorphic idea of Jehovah.
He is frequently talked about as if He were a man.
Human passions and emotions are repeatedly ascribed
to Him. This was inevitable among a primitive peo-
ple whose crude religious consciousness sought to
frame from the analogy of human nature a visible
symbol of the Deity and a sensible emblem of religious
faith. All early religions have manifested the same
anthropomorphic tendencies. Both Judaism and
Christianity have long since planted themselves upon
the fundamental proposition that God is a spirit. But
both these systems of religion have in all ages been
compelled to run the gantlet of two opposing tenden-
cies: one of which sought by a living, personal com-
munion with God through Moses and through Christ,
by means of human attributes and symbols, an intimate
knowledge and immediate benefit of the divine nature;
the other, from a horror of anthropomorphism, tend-

THE BRIEF 337

ing to make God purely passionless and impersonal,
thus reducing Him to a bare conception without form
or quality, thus making Him a blank negation.

The successive steps in the progress of weeding
out anthropomorphisms from the Pentateuch may be
clearly traced in later Hebrew literature. The Proph-
ets themselves were at times repelled by the sensuous
conceptions of God revealed by the writings of Moses.
The great lawgiver had attributed to Jehovah the
quality of repentance, a human attribute. " And it
repented the Lord that he had made man on the earth,
and it grieved him at his heart," says Genesis vi. 6.
But a later writer, the prophet Samuel, denied that
God had such a quality. " And also the Strength of
Israel will not lie nor repent: for he is not a man, that
he should repent." 1 And the prophet Hosea affirms
this declaration when he places in the mouth of Jeho-
vah the affirmation: " For I am God and not man." 2

At a still later age, when the notion of the supreme
transcendence of Jehovah had become prevalent, it
was considered objectionable to make God say, " I will
dwell in your midst"; as a substitute, " I shall cause
you to dwell " was adopted. " To behold the face of
God " was not a repulsive phrase in the ancient days
of Hebrew plainness and simplicity, but later times
sought to eradicate the anthropomorphism by saying
instead, " to appear before God."

The Septuagint, the Greek version of the Bible in
use at the time of Christ, reveals the same tendency
toward paraphrasing or spiritualizing the anthropo-

1 1 Sam. xv. 29. 2 Hosea xi. 9.

338 THE TRIAL OF JESUS

morphic phrases of the older Bible. In this trans-
lation the " image of God " of the older Hebrew
literature becomes " the glory of God," and " the
mouth of God " is expressed by " the voice of the
Lord."

The Septuagint was written more than a century
before the birth of Jesus, and we may safely assert that
at the beginning of our era the Jews not only affirma-
tively proclaimed the doctrine of divine unity and
pure spirituality, in relation to the person and charac-
ter of Jehovah, but that they boldly and indignantly
denied and denounced any attempt to make of God a
man or to attribute to Him human qualities. But
when we say " the Jews," we mean the dominant re-
ligious sect of the nation, the Pharisees. We should
not forget, in this connection, that the primary differ-
ence between the Sadducees and the Pharisees was in
the varying intensity with which they loved the Law
of Moses and adhered to its teachings. We have seen
in Part II of this volume that the Mishna, the oral
law, was really more highly esteemed by the Pharisaic
Jews than was the Mosaic Code. But the Sadducees
planted themselves squarely upon the Pentateuch and
denied that the traditions of the Scribes were of bind-
ing force. " The Sadducees were a body of aristocrats
opposed to the oral law and the later developments of
Judaism."

Now what views, we may ask, did the Sadducees en-
tertain of the possibility of God appearing to men in
the flesh? In other words, what was their notion, at
the time of Christ, of the anthropomorphisms of the

THE BRIEF 339

Pentateuch, which was their ultimate guide and stand-
ard in all matters of legal and religious interpretation?
These questions are important in this connection, since
Caiaphas and the large majority of his colleagues in
the Great Sanhedrin were Sadducees and held the
fate of Jesus in their hands. Candor compels us to
admit that we believe that the Sadducees agreed with
the Pharisees that Jehovah was a pure and sinless
spirit. But we feel equally sure that their knowledge
of the Pentateuch, in which at times anthropomorph-
ism is strongly accentuated, taught them that Jehovah
had not only appeared in the flesh among men in olden
times, but that it was not at all impossible or unreason-
able that He should come again in the same form. But
this much is certain : that in determining whether
Jesus could be both man and God the Sadducees
would be disposed to ignore the traditions of the
Pharisees and " the later developments of Judaism,"
and appeal direct to the law of Moses. Jesus Himself,
if He had been disposed to make a defense of His
claims, and His judges had been disposed to hear
Him, would have appealed to the same legal standard.
Christ more than once manifested a disposition to ap-
peal to the Mosaic Code, as a modern citizen would
appeal from mere statutes and the decisions of the
courts, to the constitution, as the fundamental law of
the land. Mark tells us that in denouncing the Phari-
sees, He used this language: " And he said unto them,
Full well ye reject the commandment of God, that ye
may keep your own tradition. . . . Making the word
of God of none effect through your tradition, which

34o THE TRIAL OF JESUS

ye have delivered: and many such like things do ye." *
Hebrew sacred literature is filled with anecdotes,
often characterized by raillery and jests, of how the
Sadducees denounced the Pharisees for their attempts
to nullify Mosaic injunction by their peculiar inter-
pretation.

Now in view of what we have just said, are we not
justified in assuming that if the judges had accorded
Jesus full liberty of defense He would have appealed
to the Pentateuch, with the approbation of His judges,
to show that God had appeared among men in the
flesh, and that a plurality in the Godhead was plainly
taught? Would He not then have appealed to the
Prophets to show that Jehovah had spoken of a begot-
ten Son who was none other than Almighty God Him-
self? Would He not have shown from both the Law
and the Prophets that the angel of Jehovah, who was
none other than Himself, had frequently, in ages past,
acted as the ambassador of God in numerous visits to
the earth, on missions of love and mercy among men?
Would He not have proved to them that this angel of
Jehovah had been at certain times in the past none
other than Jehovah Himself? Could He not have
pointed out to them that their whole sacred literature
was filled with prophecies foretelling the coming of
this Son and Ambassador of God to the earth to re-
deem fallen man? Could He not then have sum-
moned a hundred witnesses to prove His own connec-
tion with these prophecies, to show His virgin birth,
and to give an account of the numerous miracles which

1 Mark vii. 9-13.

THE BRIEF 341

He had wrought, and that were the best evidence of
His divine character?

Let us imagine that Caiaphas, as judge, had de-
manded of Jesus, the prisoner, to produce Biblical evi-
dence that God had ever begotten or had promised to
beget a Son who was equal with Himself. The fol-
lowing passages might have been produced:

Psa. ii. 7 : Thou art my son; this day have I begotten thee.

Isa. ix. 6 : For unto us a child is born, unto us a son is given :
and the government shall be upon his shoulder: and
his name shall be called Wonderful, Counselor, The
mighty God, The everlasting Father, The Prince of
Peace.

What closer identity, we may ask, could be de-
manded between the Father and the Son than is
revealed by this language of Isaiah, " and his (the
son's) name shall be called The mighty God, The
everlasting Father? " What more exact equality
could be asked than the same words suggest? What
stronger proof of plurality in the Godhead could be
demanded?

Again, let us suppose that His judges had demanded
of Jesus scriptural proof that the divine Son of God
was to be born of a woman, and was to have, therefore,
the form of a man and the attributes of a human being.
The following passages might have been produced:

Isa. vii. 14: Therefore the Lord himself shall give you a
sign; Behold, a virgin shall conceive, and bear a son,
and shall call his name Immanuel.

Gen. iii. 15: And I will put enmity between thee and the

342 THE TRIAL OF JESUS

woman, and between thy seed and her seed; it shall
bruise thy head, and thou shalt bruise his heel.
Enoch lxii. 5 : And one Portion of them will look on the
other, and they will be terrified, and their countenance
will fall, and pain will seize them when they see that
Son of Woman sitting on the throne of his glory.

The first of these passages needs no comment. It is
perfectly clear and speaks for itself. Regarding the
second, it may be observed that after the fall of Adam
and Eve in the Garden of Eden it was announced that
the seed of the woman should bruise the serpent's head.
This announcement contained, when viewed in the
light of subsequent revelations, both a promise and a
prophecy; a promise of a Redeemer of fallen man, and
a prophecy that He would finally triumph over all the
powers of sin and darkness whose father was Satan,
who had entered into the serpent. The " seed of the
woman " foretold that the Redeemer would have a
human nature; His triumph over Satan suggested His
divine origin and power.

Again, continuing the examination, let us suppose
that Caiaphas had informed Jesus that His pretensions
to be God in the flesh were not only not sanctioned by
but were offensive to the current teachings of Judaism
in relation to the person and character of Jehovah.
Let us suppose, further, that the high priest had in-
formed the prisoner that he and his fellow-judges, who
were Sadducees in faith and a majority in number of
the Sanhedrin, did not feel themselves bound by
Pharisaic tradition and " the later developments of
Judaism"; that they preferred the Mosaic Code as a

THE BRIEF 343

standard of legal and religious judgment; that the
anthropomorphisms of the Pentateuch were not par-
ticularly offensive to them, for the reason that they
had not been to Moses; and that if He, the pris-
oner at the bar, could cite instances related by Moses
where Jehovah had appeared among men, having
the form of a human being, His case would be greatly
strengthened; on the ground that if God had ever
appeared in the flesh on one occasion it was not un-
reasonable, or at least impossible, that He should so
appear again.

In proof that God had appeared in the flesh, or at
least in human form, among men, the following pas-
sages might have been adduced:

Gen. xviii. 1-8 : And the Lord appeared unto him in the
plains of Mamre: and he sat in the tent door in the heat
of the day; And he lifted up his eyes and looked, and,
lo, three men stood by him : and when he saw them, he
ran to meet them from the tent door, and bowed himself
toward the ground, And said, My Lord, if now I have
found favour in thy sight, pass not away, I pray thee,
from thy servant: . . . And Abraham ran unto the
herd, and fetched a calf tender and good, and gave it
unto a young man; and he hasted to dress it. And he
took butter, and milk, and the calf which he had
dressed, and set it before them; and he stood by them
under the tree, and they did eat.

Gen. xvi. 10-13 : And the angel of the Lord said unto her, I
will multiply thy seed exceedingly, that it shall not be
numbered for multitude. And the angel of the Lord
said unto her, Behold, thou art with child, and shalt
bear a son, and shalt call his name Ishmael; because the
Lord hath heard thy affliction. . . . And she called the
name of the Lord that spake unto her, Thou God seest

344 THE TRIAL OF JESUS

me : for she said, Have I also here looked after him that
seeth me ?

Gen. xxii. n, 12: And the angel of the Lord called unto
him out of heaven, and said, Abraham, Abraham : and
he said, Here am I. And he said, Lay not thine hand
upon the lad, neither do thou any thing unto him : for
now I know that thou fearest God, seeing thou hast not
withheld thy son, thine only son, from me.

Ex. iii. 2-6 : And the Angel of the Lord appeared unto him
in a flame of fire out of the midst of a bush: and he
looked, and, behold, the bush burned with fire, and the
bush was not consumed. And Moses said, I will not
turn aside, and see this great sight, why the bush is not
burnt. And when the Lord saw that he turned aside to
see, God called unto him out of the midst of the bush,
and said, Moses, Moses. And he said, Here am I. And
he said, Draw not nigh hither : put off thy shoes from
off thy feet; for the place whereon thou standest is holy
ground. Moreover he said, I am the God of thy father,
the God of Abraham, the God of Isaac, and the God of
Jacob. And Moses hid his face; for he was afraid to
look upon God.

From the first passage above cited it is clear that
Jehovah, in the form of a man, appeared to Abraham
in the plains of Mamre. A contributor to "The Jewish
Encyclopedia " declares that these three men were
angels in the shape of human beings of extraordinary
beauty but that they were not at once recognized as
angels.1 The Christian commentators are generally
agreed that it was Jehovah who was present in human
form.2 The other members of the company are de-
clared by some of them to be the second and third per-
sons of the Trinity. Plausibility is given to this con-

1 "Jewish Encyc," vol. i. p. 583.

2 Hodge, 'Systematic Theology," vol. i. p. 485.

THE BRIEF 345

tention by the fact that Abraham first saw one person,
the Lord; then he looked up and saw three; he then
advanced to meet the three, and, addressing them, used
a singular epithet, " My Lord." The form of the ad-
dress, together with the movements of Abraham, seem
to suggest three in one and one in three. But with
this theory we are not seriously concerned, as our pres-
ent purpose is to show that Jehovah occasionally ap-
peared in human form upon the earth in the olden
days. A plurality of gods is suggested, however, by
the passage, if Christian interpretation be applied; for
if one of these men was Jehovah, as Abraham's lan-
guage seems to indicate, and as modern Christian
interpretation generally maintains, why could not the
other two men have also been gods in the form of the
Son and the Holy Spirit? If the Jewish commen-
tator's opinion, to which we have referred heretofore,
be plausible — that the three men were angels in human
form — why is it not equally as plausible to suppose
that a god or gods should also appear in human form?
But at all events these three men were not ordinary
human beings. He who maintains that they were as-
saults the intelligence of either the translators of the
Bible or of Abraham, or both; for the Hebrew pa-
triarch believed that Jehovah was present as a guest
in his house, and he spread a hospitable meal for him.
The language of Genesis very clearly indicates as
much. And the question may be asked : If Abraham
could not recognize Jehovah, who could or can?

In the second of the above extracts from Genesis the
angel of the Lord appeared unto Hagar and said to

346 THE TRIAL OF JESUS

her: "I will multiply thy seed exceedingly, that it shall
not be numbered for multitude." And Hagar made
reply: "And she called the name of the Lord that
spake unto her, Thou God seest me." This passage
plainly teaches that the angel of the Lord and Jehovah
were sometimes identical.

The third passage heretofore cited from Genesis also
teaches the identity of the angel of the Lord and of
God Himself, in the matter of the attempted sacrifice
of Isaac by Abraham. It was the same voice, that of
the angel of the Lord, that said: "For now I know that
thou fearest God, seeing thou hast not withheld thy
son, thine only son from me."

Again, the identity of the angel of the Lord and of
Jehovah is unmistakably shown from the account of
the voice that cried from the burning bush : " I am the
God of thy father, the God of Abraham, the God of
Isaac, and the God of Jacob. And Moses hid his face,
for he was afraid to look upon God."

Concerning the manifestation of Jehovah to men in
angelic and human form a modern writer says :
" Much has been written concerning a certain Mal'akh
Yaweh (messenger of Jehovah) who appears in the
Old Testament. I say ' a certain ' Mal'akh Yaweh,
because it is not every Mal'akh Yaweh that appears to
which I refer. In most passages the Mal'akh Yaweh
is simply an angel sent by the Almighty to communi-
cate his will or purposes to men. These angels are dis-
tinctly apprehended as created intelligences, wholly
separate and diverse from God. But there is a class of
passages in which the Mal'akh Yaweh appears as a

THE BRIEF 347

self-manifestation of God. He appears indeed in hu-
man form and speaks of God in the third person. But
those to whom he appears are oppressed by the con-
sciousness that they have seen God and must die. They
see in him an impersonation of Deity such as is found
in no other angel. He is to their minds not merely a
messenger from God but the revelation of the being of
God. The Christian fathers for the most part identify
him with the Logos of the New Testament. But there
is as much reason to adopt the opinion of many modern
writers who hold that he is Jehovah himself appearing
in human form, for he is explicitly addressed as Jeho-
vah (Judges vi. 1 1-24) ,"1

The identity of the angel of Jehovah and of Jehovah
Himself could not be more conclusively proved than
in the appearance to Gideon, related in the passage
above cited, Judges vi. 11-24. The absolute identity
is revealed in verses 22, 23 : " And when Gideon per-
ceived that he was an angel of the Lord, Gideon said,
Alas, O Lord God! for because I have seen an angel of
the Lord face to face. And the Lord said unto him,
Peace be unto thee; fear not: thou shalt not die."

Now let us suppose that Caiaphas and the Sanhe-
drin had received these passages favorably; that they
had become convinced that Jehovah had appeared in
the olden days in the form of angels and of men; that
at one time He was identical with a man, and at an-
other with an angel whom He had sent. Let us sup-
pose further that the judges of Jesus had demanded of
Him a passage of ancient Scriptures connecting Him

1 Steenstra, "The Being of God as Unity and Trinity," pp. 192, 193.

348 THE TRIAL OF JESUS

even remotely with this messenger of God. The fol-
lowing passage might have been produced:

Ex. xxiii. 20, 21 : Behold, I send an Angel before thee, to
keep thee in the way, and to bring thee into the place
which I have prepared. Beware of him, and obey his
voice, provoke him not; for he will not pardon your
transgressions: for my name is in him.

The concluding paragraph of the last cited passage,
" My name is in him," is equivalent to " I am in him."
The mere name of God is often used to denote God
Himself as manifested. For instance, in I Kings viii.
29 is contained the statement, " My name shall be
there"; that is, "There will I dwell." And when it
is said that the name of Jehovah would be in the angel
of Jehovah it is equivalent to saying that Jehovah
Himself would be present in His messenger which He
had sent before Him. The passage further teaches
that the messenger of Jehovah to the earth bore a com-
mission to pardon sin, or not to, according to his pleas-
ure. The Sanhedrin were undoubtedly aware that
Jesus claimed the same power by virtue of authority
vested in Him by His Father.

But it may be imagined that Caiaphas was perfectly
willing to concede that Jehovah had appeared in hu-
man form upon the earth, but was not inclined to
believe that He had ever manifested human passions
and emotions, as Jesus had done when He denounced
on several occasions the hypocrisy of the Pharisees;
and, above all, when He overthrew the tables in the
Temple, and, applying a lash to their backs, drove out

THE BRIEF 349

the money-changers.1 Let us imagine that the high
priest demanded of the prisoner proof from the an-
cient Scriptures that Jehovah was possessed of ordi-
nary human attributes; and particularly that He was
at times disposed to fight. Jesus might have produced
the following passages to show that Jehovah, His
Father, had manifested in times past the ordinary
human passions and emotions of repentance, grief,
jealousy, anger, graciousness, love, and hate:

Ex. xv. 3j 6: The Lord is a man of war. . . . Thy right
hand, O Lord, is become glorious in power: thy right
hand, O Lord, hath dashed in pieces the enemy.

Gen. vi. 6 : And it repented the Lord that he had made man
on the earth, and it grieved him at his heart.

Deut. vi. 15 : For the Lord thy God is a jealous God among
you, lest the anger of the Lord thy God be kindled
against thee, and destroy thee from off the face of the
earth.

Psa. cxi. 4 : He hath made his wonderful works to be remem-
bered: the Lord is gracious and full of compassion.

I Kings x. 9 : Because the Lord loved Israel forever, there-
fore made he thee king, to do judgment and justice.

Prov. vi. 16: These six things doth the Lord hate: yea,
seven are an abomination unto him.

'And as a final step in the examination let us imagine
that Caiaphas and his colleagues had stated to Jesus
that they were satisfied, from the authorities cited, that
Jehovah had, in ancient days, appeared upon the earth
in human form and had exhibited human attributes;
that Jehovah had begotten a Son who was equal in
power and majesty with Himself; that this Son had

1 John ii. 15.

350 THE TRIAL OF JESUS

been begotten of a woman and possessed, therefore,
human form and attributes; that this Jehovah had sent
an angel messenger to the earth with a commission to
pardon sins. Let us imagine further that the judges
had demanded of the prisoner that He present and
prove His credentials as the divine ambassador of God
from heaven to men on earth; that He conform His
personal claims to heavenly Messiahship to ancient
prophecy by producing evidence before them in court.
What facts, we may ask, could Jesus have shown to
establish His claims to Messiahship and to Sonship of
the Father?

To attempt to originate a defense for Jesus would
be unnecessary, if not actually impertinent and sacri-
legious. We are fully justified, however, in assuming
that if called upon to prove His claims to Messiahship
He would have made the same reply to the Sanhedrin
that He had already made to the Jews out of court
who asked Him: " What sign shewest thou, then,
that we may see, and believe thee? what dost thou
work? " x " How long dost thou make us to doubt?
If thou be the Christ, tell us plainly. Jesus answered
them, I told you, and ye believed not: the works that I
do in my Father's name, they bear witness of meT 2
Again, He would have doubtless made the same reply
to Caiaphas that He did to the embassy from John the
Baptist who came to inquire if He was really the Mes-
siah. " Jesus answered and said unto them, Go and
shew John again those things which ye do hear and
see: The blind receive their sight, and the lame walk,

1 John vi. 30. 2 John x. 24, 25.

THE BRIEF 351

the lepers are cleansed, and the deaf hear, the dead are
raised up, and the poor have the gospel preached to
them." *

Under a fair trial, in daylight, with full freedom of
defense to the accused, abundant evidence could have
been secured of the miraculous powers of Jesus and of
the truthfulness of His pretensions to a divine origin.
Testimony could have been introduced that would
have been not only competent but entirely satisfactory.
The New Testament narratives tell us of about forty
miracles that Jesus performed during His life. The
closing verse of St. John intimates that He performed
many that were never reported. The circumstances
surrounding the working of these wonders were such
as to make them peculiarly competent as evidence and
to carry conviction of their genuineness, when they
were once introduced.

In the first place, miracles were entirely capable of
being proved by testimony. If those persons who had
known Lazarus intimately during his lifetime saw him
dead on one day, and on the fourth day afterwards
saw him alive and walking the streets, the senses would
be perfectly competent to decide and the fact that a
miracle had been performed would be conclusively
proved. And it may be added that a dozen witnesses
who were entirely competent to testify could have been
summoned to the defense of Jesus in the matter of
raising Lazarus from the dead.

Again, we must remember that the miracles of Jesus
were performed in the most public manner, in the

1 Matt. xi. 4, 5.

3S2 THE TRIAL OF JESUS

street, on the highway, in far-away Galilee, and at the
very gates of Jerusalem. Both His friends and ene-
mies, men and women, were witnesses of their per-
formance. The number and publicity of these won-
der-working performances rendered it possible for the
Sanhedrin to call before them hundreds and thousands
of competent witnesses who had seen and felt the mani-
festation of the divine power of the prisoner in their
presence.

Again, the miracles of Jesus were such as to render
them subject to the test of the senses, when submitted
to examination. If Caiaphas and his fellow-judges
had decided that there was fraud in the matter of the
alleged raising of Lazarus from the dead, because the
brother of Martha and Mary was not really dead, but
simply swooned or slept; if they had decide.d that the
man sick of the palsy was not cured by miracle, but by
faith ; nevertheless, they could not have charged fraud
and faith cure in the matter of the stilling of the tem-
pest or the feeding of the five thousand or the walking
on the sea. They would have been forced to conclude
that the witnesses had lied or that miracles had been
wrought In the case of the feeding of the five thou-
sand, the witnesses would have been too numerous to
brand with falsehood.

But, we may ask, was the performance of miracles
by Jesus, if believed by the Sanhedrin, sufficient evi-
dence of the divine origin of Jesus? This question we
are not prepared to answer positively, either yes or no.
We can only venture the personal opinion that the act
of raising a person indisputably dead, to life again,

THE BRIEF 3$3

would be an astounding miracle, an achievement that
could be wrought by the hand of a God alone. The
trouble with the question is that men like Elijah raised
the dead.1 It is true that there is no pretension that
Elijah was divine or that he wrought the miracle by
virtue of any peculiar power within himself. The
Scriptures plainly state that he asked God to raise the
dead to life through him. The same is true of the rais-
ing of Lazarus by Jesus.2 But Christ seems to have
raised the daughter of Jairus 3 and the son of the
widow of Nain 4 from the dead by virtue of the
strength of His own divinity; for there is no sugges-
tion that the power of God was either previously in-
voked or subsequently acknowledged.

As to the weight which the testimony of the miracles
of Jesus should have had with Caiaphas and the other
members of the court, we have a valuable indication
in the opinion expressed by Nicodemus, who was him-
self a member of the Sanhedrin, when he said to Jesus:
"We know that thou art a teacher come from God:
for no man can do these miracles that thou doest, ex-
cept God be with him." 5 If Nicodemus, " a ruler of
the Jews " and one of the leading members of their
highest tribunal, believed that Jesus was divine be-
cause of the wonders that He had wrought, why
should not a knowledge of these miracles by the other
members of the Sanhedrin have produced the same im-
pression? Nicodemus, it is true, was a friend of Jesus,

1 I Kings xvii. 17-22. 2 John xi. 41.

3 Matt. ix. 18-26; Mark v. 22-42; Luke viii. 41-55.

4 Luke vii. 12-15. 5 John iii. 2.

354 THE TRIAL OF JESUS

but he was not a disciple. And the very timidity with
which he expressed his friendship, having come at
night to pay his compliments to the Master, demon-
strates the deep impression that the miraculous powers
of the Christ had made upon him.

But the judges of Jesus were not limited to the evi-
dence of miracles as a proof of the divinity of the pris-
oner in their midst. They should have weighed " in
the sincerity of their conscience " the fact that Jesus
was born in Bethlehem in fulfillment of the prophecy
contained in Micah v. 2; that He was sprung from the
House of David in conformity with the teachings in
Jeremiah xxiii. 5, 6; that John the Baptist was His
forerunner like unto Elijah, who had come to prepare
the way according to the prophecy in Malachi iii. 1 ;
that He had begun to preach in Galilee, as foretold in
Isaiah ix. 1, 2; that the scepter had departed from
Judah and the lawgiver from between his feet, as
prophesied in Genesis xlix. 10, which fact it was be-
lieved would herald the approach of the Messiah; that
He had made His public entry into Jerusalem riding
upon an ass, as foretold in Zechariah ix. 9; and that
He had been betrayed into their hands by one of His
own friends, in fulfillment of prophecies contained in
Psalms xli. 9 and Zechariah xi. 12, 13.

This cumulative evidence, this collective proof, must
have carried overwhelming conviction to the minds
and the hearts of fair and impartial judges. More
than one Nicodemus would have arisen to plead the
cause of Jesus if this testimony had been adduced
before a free-minded, open-hearted, disinterested tri-

THE BRIEF 355

bunal. More than one Joseph of Arimathea would
have refused assent to a hostile verdict against a pris-
oner in whose favor the record of fact was so pro-
nounced.

In determining the weight that this evidence should
have had in affecting the decision of the judges we
must not forget that a Jewish prisoner was not re-
quired to prove his innocence. It was incumbent upon
the Commonwealth of Israel to establish guilt beyond
all doubt. We should also remember that the peculiar
tendency of the Hebrew system of criminal procedure
was in the direction of complete protection to the ac-
cused. Not reasonable doubt merely, but all doubt was
resolved in his favor. It was a maxim of the Hebrew
law that " the Sanhedrin was to save, not to destroy
life." Pretext after pretext was sought to acquit.
" The primary object of the Hebrew judicial system,"
says Benny, " was to render the conviction of an inno-
cent person impossible. All the ingenuity of the Jew-
ish legists was directed to the attainment of this end."
If this generous and merciful tendency of Hebrew law
had been duly observed, would not the production of
the evidence above noted have resulted in the acquittal
of Jesus?

But, at this point, let us return to the consideration
of the real meaning of the objection urged in Point
XII. The irregularity therein alleged is that the San-
hedrin paid no attention whatever to the defense of
Jesus. And herein was the real error. The members
of that court might have rejected as false the claims of
the Nazarene to Messiahship. They might have de-

3S6 THE TRIAL OF JESUS

nounced as fraudulent his pretensions to miraculous
powers. They could not for this reason have been
charged with judicial unfairness, if they had first
heard his defense and had then " weighed it in the sin-
cerity of their conscience." Infallibility of judgment
cannot be demanded of judicial officers.

In closing the discussion of errors committed at the
night trial in the palace of Caiaphas, the reader should
be reminded that the twelve Points above mentioned
are not exhaustive of the irregularities. Others might
be mentioned. It seems that Jesus, being the accused,
should not have been put under oath.1 On the days
on which capital verdicts were pronounced Hebrew
judges were required to mourn and fast.2 But there
was evidently no mourning and fasting by Caiaphas
and his colleagues at the time of the condemnation of
Jesus. Again, there is no evidence that Antecedent
Warning was properly administered. Still other er-
rors might be noted, if a legal presumption in favor
of the correctness of the record did not prevent. The
irregularities which we have heretofore discussed, it is
believed, exhaust all the material errors committed at
the first session of the Sanhedrin. At least, no others
are revealed by the Gospel records.

The Morning Session of the Sanhedrin. — About
three hours after the close of the night session in the
palace of Caiaphas, that is about six o'clock in the
morning, the Sanhedrin reconvened in a second ses-

1 See Friedlieb, Archaeol., 87; Dupin, 75; Keim, vol. iii. 327.

2 Bab. Sanh. f. 63, 1: "Cum synedrium quemquam moti adjudicavit, ne
quidquam degustent illi isto die."

THE BRIEF 357

sion. In the interval between these sittings Jesus was
brutalized by His keepers. Exactly what the priests
were doing we do not know. They were probably
busily engaged in perfecting plans for the destruction
of the prisoner in their charge.

The daylight meeting is thus reported in Matthew
xxvii. 1 : " When the morning was come, all the chief
priests and elders of the people took counsel against
Jesus to put him to death." In Mark xv. 1 the same
session is thus recorded: "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."

The exact nature of this morning sitting, whether a
regular trial or an informal gathering, is not certainly
known. Meyer, Ellicott, and Lichtenstein maintain
that this second session was nothing more than a pro-
longation of the night trial, perhaps with a brief recess,
and that its special object was to convene for consulta-
tion concerning the carrying out of the sentence which
had already been pronounced against Jesus.1 But this
view is entirely exceptional. It is maintained by the
greater number of reputable authorities that the sec-
ond sitting was in the nature of a second trial. The
solution of the difficulty seems to turn upon the ac-
count given by St. Luke, for St. John records the
details of neither the night nor the morning session.
St. Luke describes a regular trial, but it is not posi-
tively known whether his account refers to the night

1 Andrews, "The Life of Our Lord," p. 522.

358 THE TRIAL OF JESUS

or to the morning meeting. If his report refers to the
same trial as that described in Matthew xxvi. 57-68
and in Mark xiv. 53-65, then we have only the brief
notices in Matthew xxvii. 1 and in Mark xv. 1 con-
cerning the morning session, which indicate only a
very brief and informal meeting of the Sanhedrin at
daybreak. On the other hand, if the report of St.
Luke refers to the daylight meeting of the Sanhedrin
referred to by St. Matthew and St. Mark then we have
received from the third Evangelist a description of a
regular trial at the second session of the Sanhedrin.
Andrews has thus expressed himself very cogently con-
cerning this matter:

Our decision as to a second and distinct session of the San-
hedrin will mainly depend upon the place we give to the
account in Luke xxii. 66-71. Is this examination of Jesus
identical with that first session of Matthew xxvi. 57-68, and
of Mark xiv. 53-65 ? Against this identity are some strong
objections: First, The mention of time by Luke: " As soon
as it was day." This corresponds well to the time of the
morning session of Matthew and Mark, but not to the time
when Jesus was first led before the Sanhedrin, which must
have been two or three hours before day. Second, The
place of the meeting: "They led Him into their council,"
avriyar/ov avrov ek to crvvehpiov eavrwv. This is rendered by
some : " They led Him up into their council chamber," or the
place where they usually held their sessions. Whether this
council chamber was the room Gazith at the east corner of
the court of the temple, is not certain. Lightfoot (on Mat-
thew xxvi. 3) conjectures that the Sanhedrin was driven from
this its accustomed seat half a year or thereabout before the
death of Christ. But if this were so, still the " Tabernae,"
where it established its sessions, were shops near the gate
Shusan, and so connected with the temple. They went up to
that room where they usually met. Third, The dissimilarity

THE BRIEF 359

of the proceedings, as stated by Luke, which shows that this
was no formal trial. There is here no mention of witnesses —
no charges brought to be proved against Him. He is simply
asked to tell them if He is the Christ ("If thou art the
Christ, tell us," R. V.) ; and this seems plainly to point to the
result of the former session. Then, having confessed Him-
self to be the Christ, the Son of God, He was condemned to
death for blasphemy. It was only necessary now that He
repeat His confession, and hence this question is put directly
to Him: " Art thou the Christ? tell us." His reply, " If I
tell you, ye will not believe; and if I also ask you, ye will not
answer me, nor let me go," points backward to his former
confession. To His reply they only answer by asking, " Art
thou then the Son of God? " The renewed avowal that He
is the Son of God, heard by them all from His own lips,
opens the way for His immediate delivery into Pilate's
hands. Fourth, The position which Luke gives (xxii. 63-
65) to the insults and abuse heaped upon Jesus. There can
be no doubt that they are the same mentioned by Matthew
and Mark as occurring immediately after the sentence had
been first pronounced.

From all this it is a probable, though not a certain conclu-
sion, that Luke (xxii. 66-71) refers to the same meeting of
the Sanhedrin mentioned by Matthew (xxvii. 1) and Mark
(xv. 1 ) , and relates, in part, what then took place. ( Alford
thinks that Luke has confused things and relates as happen-
ing at the second session what really happened at the first.)
This meeting was, then, a morning session convened to ratify
formally what had been done before with haste and infor-
mality. The circumstances under which its members had
been earlier convened, at the palace of Caiaphas, sufficiently
show that the legal forms, which they were so scrupulous in
observing, had not been complied with.1

If then the second session of the Sanhedrin was in
the nature of a regular trial, what were the facts of
the proceedings? St. Luke says: "And as soon as it

1 "The Life of Our Lord," pp. 523, 524.

360 THE TRIAL OF JESUS

was day, the elders of the people and the chief priests
and the scribes came together, and led him into their
council, saying, Art thou the Christ? tell us. And he
said unto them, If I tell you, ye will not believe: And
if I also ask you, ye will not answer me, nor let me go.
Hereafter shall the Son of man sit on the right hand
of the power of God. Then said they all, Art thou
then the Son of God? And he said unto them, Ye say
that I am. And they said, What need we any further
witness? for we ourselves have heard of his own
mouth." 1

The reader will readily perceive the source of the
difficulty which we have just discussed. This report
of St. Luke points both ways, toward both the night
and morning sessions. " And as soon as it was day "
clearly indicates a daybreak meeting, but the re-
mainder of the account bears a most striking resem-
blance to the reports of the night trial given by St.
Matthew and St. Mark. This seeming discrepancy is
very easily reconciled, however, when we reflect that
the second trial required by Hebrew law to be held in
every case where a verdict of guilt had been pro-
nounced, was virtually a repetition of the first trial.
Benny tells us that the second trial was a critical ex-
amination of the trial of the first day, in which the
questions and answers originally asked and made were
carefully reviewed and reexamined.2 Is it very
strange, then, that at the morning trial described by

1 Luke xxii. 66-71.

2 See Part II, Chap. V.; also Benny, " Crim. Code of the Jews," pp.
81-83.

THE BRIEF 361

St. Luke substantially the same questions are asked and
answers given as are found in the reports of the night
trial by St. Matthew and St. Mark?

We may now ask: What was the purpose of this sec-
ond trial? Why did not the first trial suffice? Ac-
cording to the most reliable authorities, the answer to
this question is to be found in that provision of the
Hebrew law which required two trials instead of one,
in every case where the prisoner had been found guilty
at the first trial. Not only were there to be two trials,
but they were to be heLd on different days. The morn-
ing session of the Sanhedrin was intended, therefore,
to give a semblance of legality and regularity to this
requirement of Hebrew law. But we shall see how
completely the Sanhedrin failed in this design.
" What legitimacy," says Keim, " might be lacking in
the proceedings of the nocturnal sitting of the Sanhe-
drin, was to be completely made up by the morning
sitting, without prejudice to the authority and the — in
the main point — decisive action of the former. . . .
There nevertheless was no lack of illegality. The
most striking instance of this was the fact that though
they wished to bring about an extension of the proce-
dure over two days they had in fact only two sittings,
and not two separate days. But contempt of the legal
ordinances was much more seriously shown by the ab-
sence of any investigation into the circumstances of the
case at the second sitting, although both law and tra-
dition demanded such an investigation." x

If " both law and tradition demanded such an in-

1 Keim, "Jesus of Nazara," vol. vi. pp. 63, 64.

362 THE TRIAL OF JESUS

vestigation," that is, if the second trial of the case on
the second day of the proceedings was required to be
formal and in the nature of an action de novo ; if the
second trial was required by law to be characterized
by all the formality, solemnity, and legality of the first
trial ; what errors, we may ask, are disclosed by the
reports of St. Luke, St. Matthew, and St. Mark in the
proceedings against Jesus conducted by the Sanhedrin
at the morning session? To be brief, reply may be
made that the irregularities were virtually the same as
those that occurred at the night trial. The same pre-
cipitancy that was forbidden by Hebrew law is appar-
ent. This haste prevented, of course, that careful de-
liberation and painstaking investigation of the case
which the Mosaic Code as well as the rules of the
Mishna imperatively demanded. It is true that the
second trial was not conducted at night. But the Pass-
over Feast was still in progress, and no court could
legally sit at such a time. The Sanhedrin at the sec-
ond session seems to have been still sitting in the palace
of Caiaphas instead of the Hall of Hewn Stones, the
legal meeting place of the court. This we learn from
a passage in St. John.1 Again, no witnesses seem to
have been summoned, and the accused was convicted
upon his uncorroborated confession.

And finally, the verdict at the second trial, as was
the case in that of the first, seems to have been unani-
mous, and therefore illegal. This unanimity is indi-
cated by the combined reports of St. Matthew, St.
Mark, and St. Luke. St. Matthew says : " When the

1 John xviii. 28.

THE BRIEF 363

morning was come, all the chief priests and elders of
the people took counsel against Jesus to put Him to
death." St. 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." These accounts of the first two Evangelists
very clearly state that the full Sanhedrin was present
at the morning trial. Then St. Luke very explicitly
explains the nature and manner of the verdict: " Then
said they all, Art thou then the Son of God? And he
said unto them, Ye say that I am. And they said,
What need we any further witness? for we ourselves
have heard of his own mouth."

It may be objected that no formal verdict was pro-
nounced at the second trial. Such a verdict would
have been expressed in these words: " Thou, Jesus, art
guilty." 1 While such words are not expressly reported
by the Evangelists, the account of St. Luke taken in
connection with the report of St. Mark of the night
trial, which the morning session was intended to con-
firm, clearly indicates that such a verdict must have
been pronounced. A reasonable inference from the
whole context of the synoptic writers in describing
both trials certainly justifies such a conclusion.

The question again arises: If the full Sanhedrin was
present at the morning session and if all the members
condemned Jesus, either with or without a formal ver-

1 "Thou, Reuben, art guilty! Thou, Simon, art acquitted, art not
guilty!" were stereotyped forms of verdicts under Hebrew criminal pro-
cedure. Sanh. in Friedl., p. 89.

364 THE TRIAL OF JESUS

diet, is it not true that both Nicodemus and Joseph of
Arimathea, who were doubtless members of the court,
were arrayed against the Christ? If they were hostile
in their attitude toward Him, either openly or by ac-
quiescence at the morning session, does this fact not
help to support the contention made under Point IX
that they voted against Him at the night trial? We are
well aware that there is much opposition to this view,
but we are, nevertheless, compelled to agree rather re-
luctantly with Keim that " it is a pure supposition that
members of the council who were secret friends of
Jesus — whose existence, moreover, cannot be estab-
lished— either raised an opposition in one of the ses-
sions, or abstained from voting, or were not present." *
The plain language of the Scriptures indicates: (i)
That both Nicodemus 2 and Joseph of Arimathea 3
were members of the Great Sanhedrin; (2) that they
were both present at both trials;4 and (3) that they
both either voted against Him or tacitly acquiesced in
the judgments pronounced against Him.5 We have
already discussed under Point IX the passage in Luke
xxiii. 51 referring to the fact that Joseph of Arima-
thea " had not consented to the counsel and deed of
them," which seems to furnish refutation of the con-
tention which we have made, as far as such conten-
tion relates to Joseph of Arimathea. Suffice it to
note the opinion of Keim that " the passage in itself

1 Keim, "Jesus of Nazara," vol. vi. p. 74.

2 John iii. 1; vii. 50.

3 Luke xxiii. 50, 51.

4 Matt. xxvi. 59; Mark xiv. 55; Matt, xxvii. 1; Mark xv. I.

5 Mark xiv. 63, 64; Luke xxii. 70, 71.

THE BRIEF 365

can be held to refer to absence or to dissent in
voting." 1

" And the whole multitude of them arose, and led
him unto Pilate."

The reader may ask: Why did the Jews lead Jesus
away to Pilate? When they had condemned Him to
death on the charge of blasphemy, why did they them-
selves not put Him to death? Why did they invoke
Roman interference in the matter? Why did they not
stone Jesus to death, as Hebrew law required in the
case of culprits convicted of blasphemy? Stephen was
stoned to death for blasphemy.2 What was the differ-
ence between his case and that of Jesus? Why was
Jesus crucified instead of being put to death by
stoning?

The stoning of Stephen as a blasphemer by the Jews
has been explained as an irregular outbreak of fanati-
cal priests, a sort of mob violence. It has also been
contended that the case of Stephen was one of the rare
instances in which Roman procurators permitted the
Jews to execute the death sentence. In any event it
was an exceptional proceeding. At the time of the
crucifixion of Jesus and of the martyrdom of Stephen
the Jews had lost the right of enforcing the death pen-
alty. Judea was a subject province of the Roman em-
pire. The Jews were permitted by the Romans to try
capital cases. If an acquittal was the result, the Ro-
mans did not interfere. If a verdict of guilty was
found, the Jews were compelled to lead the prisoner

1 Keim, "Jesus of Nazara," vol. vi. p. 74, n. 2.

2 Acts vi. 11; vii. 59.

366 THE TRIAL OF JESUS

away to the Roman governor, who reviewed or retried
the case as he saw fit. Accordingly, having con-
demned Him to death themselves, the Jews were com-
pelled to lead Jesus away to the palace of Herod on
the hill of Zion in which Pilate was stopping on the
occasion of the Paschal Feast, to see what he had to say
about the matter, whether he would reverse or affirm
the sentence which they had pronounced.

The Roman trial of Jesus will be treated in the sec-
ond volume of this work.

END OF VOL. I

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