Chapter Second
The Rules of Justice and the Legal Forms Which the Sanhedrim was Under
Obligation to Observe in the Trial of Criminal Cases
With the knowledge
we have of the moral character of the members of the Sanhedrim and their secret
hatred for Christ, we might, without further delay, enter with the crowd into
the Sanhedrim hall in order to be present at the trial; but to prepare
ourselves to judge impartially of the proceeding there enacted, we must first
make ourselves familiar with the criminal code of the Hebrews.
Besides
the laws of natural justice, common to all people and all times, the Jewish
nation, with their superior civilization, was governed by others still more
binding, since they were either dictated by God Himself or transmitted through
agents divinely appointed. A minute
investigation of these laws is indispensable to an impartial estimate of the
proceedings of the Sanhedrim in the case before us.
The
Pentateuch and other portions of the Old Testament, though full and clear
enough as to the ceremonial law, are less explicit with regard to the
administration of justice. Hebrew
jurisprudence, in its principles and manner of their interpretation, was
chiefly transmitted by the living voice of tradition. Next to Scripture, then, we must consult these traditions for a
complete knowledge of the criminal code of the Hebrews as administered by the Sanhedrim.
The
traditions to which we refer were collected seventeen centuries ago by the
learned Rabbi Judah in a voluminous work, The Mishnah. This rabbi, moved with pity for the sad
condition of his people, who had just been driven from Judea by Adrian,
resolved to perpetuate in writing for them a collection of their time-honored
traditions. His work received the name
of the Second Law, or Mishnah, to distinguish it from the
Pentateuch, or Written Law, delivered by God to Moses. Among the religious, legal, and
administrative treatises of the Mishnah, there is one entitled The
Sanhedrim, especially devoted to jurisprudence, and which throws more light
upon the subject than can be obtained from any other source. From this treatise we shall quote freely, as
from some others bearing upon the same subject, and contained in this vast
compilation, (The Mishnah is the work of Jehudah the Holy, who died
about the end of the second century of our era. It comprises six orders (Sedderim), each devoted to a
special class of subjects. These are
divided into tractates (Massichtoth, textures, webs), of which there are
sixty-three (or else sixty-two) in all.
These tractates are again subdivided into chapters (Perakim), in
all 525, which severally consist of a certain number of verses, or mishnahs,
in all 4,187. The first order (Zeraim,
seeds) begins with the ordinances concerning benedictions, or the time, mode,
manner, and character of the prayers prescribed. It then goes on to detail what may be called the religio-agrarian
laws (such as tithing, sabbatical years, firstfruits, etc.). The second order (Moed, festive time)
discusses all connected with the Sabbath’s observance and the other
festivals. Third order (Nashim,
women) treats of all that concerns betrothal, marriage, and divorce; it also
includes a tractate on the Nasirate.
The fourth order (Nezikin, damages) contains the civil and
criminal law. Characteristically, it
includes all the ordinances concerning idol-worship (in the tractate Avodah
Zurah) and the sayings of the fathers (avoth). The fifth order (Kodashim, holy
things) treats of the various classes of sacrifices, offerings, and things
belonging (as the firstborn) or dedicated to God, and of all questions which
can be grouped under “sacred things” (such as the redemption, exchange, or alienation
of what had been dedicated to God). It
also includes the laws concerning the daily morning and evening service (Tamid),
and description of the structure and arrangements of the Temple (Middoth,
the measurements). Finally, the sixth
order (Toharoth, cleannesses) gives every ordinance connected with the
questions of clean and unclean alike, as regards human beings, animals, and
inanimate things, (Dr. Edersheim: The Life and Times of Jesus the Messiah,
American ed., vol. 1., p. 102). The
tractate “ Sanhedrim” is to be found in the fourth order of the Mishnah.).
In cases
of criminal procedure, the Sanhedrim was under obligation to adhere strictly to
the following regulations:
I. Days and
Hours on Which the Holding of Court was Forbidden
Under the Penalty of a Nullification of the Judgments
Pronounced
1. Court must not be held on the Sabbath, or
any holy day.
“Court
must not be held on the Sabbath, or any holy day,” (Mishnah, Betza, or of
the Egg, Chap. 5, No. 2). The solemnity
of the days would be a sufficient reason for this prohibition. Maimonides, however, in his commentary on Sanhedrim,
Chapter 2, adds: “As it is required 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,” Exodus 35:3.
2. Court not to assemble even on the day
preceding the Sabbath, or any feast-day.
“They
shall not judge on the eve of the Sabbath-day, nor on that of any festival,”
Mishnah, Sanhedrim, Chap. 4.1.
This precaution was taken to avoid exposing the judges to the violation
of the law of the Sabbath, in case the trial could not be concluded the same
day on which it was begun, (Talmud, Jerus., Kethuboth, or of Marriage
Contracts, fol. 24; Moed-Katon, or of Secondary Festivals,
fol. 63).
3. The trial of an important case not to be
continued during the night.
“Let it be
tried during the day and suspended at night,” (Mishnah, Sanhedrim, Chap.
4.1). Maimonides, commenting on this
ordinance, says: “The reason why the
trial of a capital offense could not be held at night is because, as oral
tradition says, the examination of such a charge is like the diagnosing of a
wound — in either case a more thorough and searching examination can be made by
daylight,” (Maimonides, Sanhedrim, chap. 3).
4. No session of the Court to take place before
the offering of the morning sacrifice.
“The
Sanhedrim sat from the close of the morning sacrifice to the time of the
evening sacrifice,” (Talmud, Jerus., Sanhedrim, Chap. 1, fol. 19;
Talmud, Bab., Chap. 10, fol. 88).
“Since the morning sacrifice was offered at the dawn of day, it was
hardly possible for the Sanhedrim to assemble until an hour after that time,”
(Mishnah, Tamid, or of the Perpetual Sacrifice, C. 3).
1. The witnesses to be two in number.
“One
witness shall not testify against any person.
At the mouth of two witnesses, or three witnesses, shall he that is
worthy of death be put to death,” Deuteronomy 17:6; Num 35:30.
2. The witnesses 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,” (Apocrypha).
3. Before testifying, the witnesses to
promise conscientiously to tell the truth.
The judge
shall address each witness as follows:
“It is not conjecture, nor anything you may have gathered from public
rumor, that we ask of you. Remember
that a heavy responsibility rests on you; that it is not a question of money
where restitution can be made. If you
should cause the accused to be condemned unjustly, his blood — yea, even the
blood of his posterity — shall cry for vengeance against you, and God will hold
you accountable, even as He did Cain for the blood of his brother Abel,”
(Mishnah, Sanhedrim, Chap. 4.5).
4. The judges required to carefully weigh
the testimony of each witness.
“And the
judges shall make diligent inquisition: and behold if the witness”…(Deuteronomy
19:18). “The following seven questions
must be 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?” (Mishna, Sanhedrim, Chap. 5.1).
5. No testimony valid unless the witnesses
all agreed on the same fact in all its details.
“If one
witness contradicts another, the testimony is not accepted,” (Mishnah, Sanhedrim,
C. 5.2). “For instance, if one witness
were to testify to having seen an Israelite in the act of worshiping the sun,
and another to having seen the same man worship the moon, yet, although each of
the two facts proves clearly that the man had committed the horrible crime of
idolatry, the discrepancy in the statements of the witnesses invalidates their
testimony, and the accused is free,” (Maimonides, Sanhedrim, Chap. 20).
6. False witnesses to suffer the penalty to
which they sought to condemn the person whom they had calumniated.
“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 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,” Deuteronomy 19:18-21. “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,” (Apocrypha).
1. The expressions used by the judge toward
the accused person to be humane, and even kind.
“Joshua said
unto Achan . . . give, I pray thee, glory to the Lord God of Israel, and make
confession unto Him; and tell me now what thou hast done; hide it not from me,”
Joshua 7:19. “My very dear
daughter, you who are suspected of adultery, could not your guilt be ascribed
to the immoderate use of wine? Was it
done in consequence of you frequenting the houses of bad neighbors? Perform the ceremonies prescribed for
occasions like the present, in the name of the just God of Israel,” (Mishnah, Sotah,
Chap. 1.4).
2. The accused not to be condemned on his
own confession.
“We have
it as a fundamental principle of our jurisprudence, 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 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 simple confession of an accused party,” (Mishnah, Sanhedrim,
Chap. 4.2; Kidushin, or of
Dowry and Matrimonial Settlements, Chap. 3.9; Maimonides, Sanhedrim).
1. The accused to plead his own cause, the
law not mentioning any advocates.
Permission given to any person present at the trial to speak in defense
of the accused, such being considered a pious act.
“When I
went out to the gate through the city, when I prepared my seat in the street
[it was at the gate of the city that justice was administered] . . . the cause
which I knew not I searched out. And I
brake the jaws of the wicked, and plucked the spoil out of their teeth,” Job
29:7, 16, 17. “Relieve the
oppressed, judge the fatherless, plead for the widow,” Isaiah 1:17. “Daniel cried with a loud voice, I am clear
from the blood of this woman. Then all the people turned them toward him, and
said: What mean these words that thou hast spoken? So he, standing in the midst of them, said: Are ye such fools, ye
sons of Israel, that without examination or knowledge of the truth ye have
condemned a daughter of Israel?” (Apocrypha).
1. When the trial of a criminal case is to
terminate in a sentence of death, it cannot be concluded the same day on which
it had begun; but the judges must defer till the next day the voting and the
passing of the sentence.
“A
criminal case resulting in the acquittal of the accused may terminate the same
day on which the trial began. But if a
sentence of death is to be pronounced, it cannot be concluded before the
following day,” (Mishnah, Sanhedrim, Chap. 4.1).
2. On the night intervening, the judges
having retired by twos to their houses, are to reconsider minutely of evidences
of the crime, weighing with sincerity of conscience the proofs adduced against
the accused, and the arguments made in his defense.
“Having
postponed the trial to the next day, the judges reassemble by twos and proceed
to reexamine the whole case,” (Mishnah, Sanhedrim, Chap. 5.5).
3. In order to secure a more careful
deliberation, the judges are under obligation to abstain during the intervening
night from heavy food, wine, and all intoxicating beverages, and from
everything that would have a tendency to incapacitate them for correct thinking.
“Having
reduced the quantity of their food and abstained from wine, they examine the
case,” (Mishnah, Sanhedrim, Chap. 5.5).
This abstinence was founded also on the verse in Leviticus, where
it is said: “Non comedetis super
sanguinem — Ye shall not eat upon the blood” 19:26. [One instance among many of the literal and
forced interpretations of Scripture by the rabbis. The Latin version of this passage is a literal translation of the
Hebrew. — Tr.]
4. On their return next day to the hall of
justice, each judge, in his turn, votes for or against the accused.
“The next
day they return to the hall of justice.
Then he who absolves pronounces the words ‘I absolve;’ he who condemns,
‘I condemn’,” (Mishnah, Sanhedrim, Chap. 5.5).
5. Two scribes to record the votes; one
those that are favorable to the accused; the other those that are against him.
“The
members of the Sanhedrim were seated in the form of a semicircle, at each
extremity of which a secretary was placed, whose business it was to record the
votes. One of these secretaries
recorded the votes in favor of the accused, the other those against him,”
(Mishnah, Sanhedrim, Chap. 4.3).
6. To condemn, the number of votes must
exceed by two the number of those in favor of his acquittal.
“In
criminal trials, a majority of one vote is sufficient for an acquittal; but for
a condemnation a majority of two is necessary,” (Mishnah, Sanhedrim,
4.1). “The members of the Sanhedrim
being seventy-one in number, if thirty-five condemn, the accused is free; let
him be discharged immediately. If
thirty-six condemn, he is still free,” (Ibid., C. 5.5).
7. Any sentence of death pronounced outside
of the hall Gazith, or of hewn stones, to be null and void.
“After
leaving the hall Gazith, no sentence of death can be passed upon any one
soever,” (Talmud, Bab., Abodah Zarah, or of Idolatry, Chap. 1,
fol. 8). “A sentence of death can be
pronounced only so long as the Sanhedrim holds its sessions in the appointed
place,” (Maimonides, Sanhedrim,
Chap. 14).
Such are
the principal rules and forms of justice which, after the written and oral law,
the Bible, and the Mishnah, the Sanhedrim was bound by the strictest
obligations to observe in the trial of all criminal cases.
But were
these rules of procedure scrupulously adhered to in the trial of Jesus? This is the important question that remains
to be considered.
We have
already shown that the Sanhedrim council was made up of men devoid of moral
integrity. We have also proved
indisputably that the members of this body had resolved beforehand to
pass upon Jesus the sentence of death, however clearly a legal investigation of
the charges against him might establish His innocence.
We shall
now proceed to demonstrate the fact — we hope satisfactorily — that throughout
the public trial of Jesus, which commenced on the night of the fourteenth of
Nisan, and concluded on the morning of the same day (17th and 18th March, 782),
(In religious and civil affairs the Hebrews counted the day of twenty-four
hours, from sunset to sunset. “From
even until even shall you celebrate your Sabbath,” (Leviticus 23:32); “And God called the light day, and the
darkness he called night; and the evening and the morning were the first day,”
(Genesis 1:5, 8, 13, 19, 23, 31) all the forms and ordinances which we have
mentioned were wantonly violated and trodden under foot; and that the action of
the Sanhedrim in the condemnation of Jesus of Nazareth, devoid as it was of
even the semblance of justice or legality, was nothing less than an
assassination.