1.Hebrew Judicial Procedure

Hebrew society and the institutions that governed it were permeated with a deep sense of righteousness and law. To what extent this sense had developed in the later history of the Hebrew people is shown by the fundamental maxim: “do not do injustice in judgment.” In the more ancient part of the “ancestral traditions” we read: “if a judge pronounces a decision contrary to truth, he removes the divine majesty from Israel. But if he judges in accordance with truth, even for only one hour, it is as though he has strengthened the whole world, for it is precisely in judgment that the presence of God in Israel is expressed.” The vast Hebrew literature that we call the Talmud is nothing other than a Corpus Juris—an encyclopedia of the entire law, which is best evaluated by comparison with other legal codes, in particular with the Roman code and its commentaries. The Talmud contains much else besides, but this is its foundation. And what is especially important for us—this foundation constitutes the most ancient part of the Talmud. The whole Talmud consists of forty folio volumes—a mass of discussions, examples, and commentaries. Its central part, contained in twelve volumes, is called the Mishnah. And the content of almost the entire Mishnah is the law. The Mishnah was transmitted from ancient times as the second or oral law—deuterōsis—that is, a detailed, tradition-based commentary on the Mosaic law, and while professing complete subordination to it, in practice displaced it as a code. Whereas other parts of the Talmudic commentary did not exist for whole centuries after the introduction of Christianity, the Mishnah, or its central part, was compiled according to general supposition by Rabbi Judah around 200 AD. But it was compiled as the oral law, whose use and authority had begun to increase from the very return of the people from Babylon, as “a brief digest of legislative productivity” that had continued for about eight hundred years. Therefore later Jewish writers do not hesitate to cite it as a digest containing criminal laws that undoubtedly existed during the high priesthood of Annas and Caiaphas. This cannot, of course, be proven with regard to all parts of the book, which were written down over the course of two centuries. But we have evidence that the development of the Mishnah in this particular direction occurred very early and rapidly. Its earliest period coincided with the time of the “men of the Great Synagogue,” extending from the return from captivity to approximately 220 BC. Their activity is expressed in the guiding aphorism: “be cautious and deliberate in judgment, train as many disciples as possible, and make of them a fence around the law.” And this era, which inspired caution in judicial activity, was followed by the so-called “era of the Sanhedrin,” which over the subsequent four centuries elaborated the principle of caution down to its most minute details.

Nothing in the Mishnah is expressed so clearly as the contrast recognized in that ancient time between civil and criminal procedure—between a trial over property and a trial over life. Even with regard to the former procedure, their rules strike the modern juridical mind with their tendency toward pedantic caution. As for criminal offenses, and especially those punishable by death, there is no doubt that long before the time of Jesus, the high importance that the life of a Hebrew citizen held in the eyes of the law led to extraordinary precautions. The so-called four great principles of Hebrew criminal jurisprudence—“precision in the accusation, publicity in the proceedings, full liberty for the accused, and safeguards against all dangers or errors of witnesses”—already in the Mishnah break down into detailed and precise rules, almost manifestly tending in every point in favor of the accused and carrying the greatest force in the examination of cases threatening capital punishment. Indeed, the precautions here go so far that present-day Jews tend to represent capital punishment as contrary to the very spirit of Hebrew jurisprudence. In the “oral law” we read the saying of Eleazar, son of Azariah: “a Sanhedrin that condemns a man to death once in seven years is a slaughterhouse.” Even more astonishing (if we recall the dread of Jews of anything anthropomorphic in speech about the Divine Being) will seem the following terrible saying of Rabbi Meir: “What does God think (if one may speak anthropomorphically of God) when a wrongdoer suffers deserved torment for his crime? He says: My head aches and My members suffer. And if He says this about the sufferings of the guilty, what must He say when the innocent is condemned?” And so, to save innocent blood, to shield and protect the sacred right to life, Hebrew legislation abounded in rules of precaution that, like bastions, defended the accused, so that a false accusation became almost impossible.

The question of whether the Hebrew inquiry concerning Jesus Christ was conducted according to the rules of properly Hebrew law seems not to have been exhaustively treated by any writer, though many have touched upon it. The most celebrated investigation of it belongs to the learned Spanish Jew Salvador, who in his well-known work “History of the Institutions of Moses” gave two excellent chapters on the criminal laws of the later Jews and on the administration of justice among them, to which he then appended a discussion arguing that the trial of Jesus was conducted lawfully. He accepted the facts as presented in the Gospels and based his conclusions on the law as set forth in the Mishnah; on the basis of these sources he claimed it possible to prove that, although the verdict was unfortunate if Jesus was indeed the Messiah, the course of the proceedings and the result obtained were equally inevitable, provided only that the tribunal adhered to its own law. Salvador was answered in a brilliant treatise by the celebrated French advocate Dupin the Elder, and by the American scholar Greenleaf. Both opponents of Salvador insisted primarily on the point that the proceedings against Christ were unjust not so much in form as in substance. We intend to examine this question anew, turning directly to the sources.

In the month of March, on the night before Friday, the last day before the Passover festival, the arrest took place—the first step in most of our present-day investigations. The question arises: was this arrest lawful? There is no reason to doubt that it was carried out by the authority of the high priest; the attachment of the Roman cohort to the temple servants was most probably arranged by that same Jewish authority, and thus on first appearance it has the look of legality. But was arrest prior to an inquiry lawful under Hebrew law? It seems not, unless there were grounds for fearing resistance or flight. In the present case there was no intention to flee, but resistance, though unintentional, might have been anticipated. The question of the lawfulness of the arrest of Jesus Christ thus becomes now the question: was this arrest not itself the beginning of a judicial inquiry? If so, the subsequent course of proceedings ought by law to have been the same as that which we observe in the arrest, somewhat later, of Peter and John: those who seized them put them in custody until morning, for it was already evening (Acts 4:3). With Jesus Christ they proceeded quite differently.

The arrest was followed by a nocturnal examination. The armed escort brought Jesus first to Annas (John 18:13), the most influential member of the Sanhedrin. In this body sat no fewer than five of his sons, some of whom had already held, and others were to hold in the course of the next several years, the dignity of high priest. Old Annas had for twenty years before this held this exalted office and, perhaps in the absence of the Roman governor, had extended his authority (as later his son did) to the point of pronouncing death sentences. There is nothing implausible in the suggestion that the procurator, indignant at Annas’s arbitrary conduct, had insisted on his removal from office; yet Annas, though he formally yielded, continued to exert his influence over the great council through the junior members of his family. At this time the presidency was held by his energetic son-in-law Caiaphas, though in the opinion of orthodox Jews the aged head of the household remained high priest de jure judaico. The bound Jesus Christ was sent by Annas to Caiaphas, perhaps only into another room of the archpriest’s house. Before one or another (it matters not which) of these dignitaries the Accused was undoubtedly subjected to a preliminary examination before any witnesses were summoned. It is difficult to determine whether this high-priestly examination, recorded only by John, was conducted by Annas or by Caiaphas. However, this is entirely immaterial to our task. The main point here is that if the examination recorded in detail by John took place before Annas, then it was separated both in place and in time from the subsequent proceedings before Caiaphas. In that case it is more probable that the examination of witnesses and the condemnation, which took place before the junior statutory high priest, occurred somewhat later—either at night, or already toward morning—and had the form and order of a proper public inquiry. On the other hand, if Annas sent the Prisoner to Caiaphas without any hearing of the case, and if the examination recorded in the Gospels was conducted by the latter, then the presentation of witnesses, the adjuration (Matt. 26:63), and the condemnation could have followed this examination in immediate succession; and in that case it is probable that a considerable interval of time elapsed after all these events before the informal nocturnal sentence was confirmed at the formal or public morning session of the council. But the main point regarding the high-priestly examination does not depend on the resolution of the question of who conducted it. In any event, the examination was wholly unlawful. In some countries—for example, in France, Scotland, and Russia—the accused is brought before an examining magistrate and subjected to official interrogations before being committed to public trial. In other countries, and among them the Jews, the matter is not conducted in this way. Here the accused was released from any such personal examination until presented for hearing before an assembly of his brethren. This rule of publicity in examination seems to have derived from Hebrew principles regarding both judges and witnesses. “Do not be a sole judge,” runs one of the most well-known aphorisms, “for there is no sole judge but the One.” Even more clearly, not only from the Mishnah but also from the Pentateuch, it is evident that a single witness had no standing, and that “two or three witnesses,” upon whose testimony every case must rest, were to give their evidence publicly (Deut. 19:15–18). Their testimony formed the basis of every judicial proceeding, and until it was given publicly against a person, he was regarded before the bar of the law as not only innocent but also not even charged. This principle fully explains the replies of Jesus Christ to the midnight questions of the high priest: the ecclesiastical dignitary, probably in a private session and certainly before any witnesses were summoned, asked Jesus about His disciples and His teaching.

“Jesus answered him: ‘I have spoken openly to the world. I have always taught in synagogues and in the temple, where all the Jews come together. I have said nothing in secret. Why do you ask me? Ask those who have heard me what I said to them; they know what I said’” (John 18:19–21).

In every word of this answer one hears the echoes of Hebrew justice, which was founded upon very broad principles. Christ reminds the unjust judge of the first duty of his great office. But (as an ancient Hebrew writer who studied this people in ancient times observed), “when a man of low station rises, the wicked surround him on all sides.” When the accused thus asserted his rights, one of the officers (this class of men is ordinarily distinguished by particular zeal for the observance of form, and form only) “struck Jesus with his palm, saying: ‘Is that how you answer the high priest?’” (John 18:22). The answer of Jesus is striking. In it He again decisively takes his stand on the ground of the juridical rights of a Hebrew—ground from which He afterwards, no doubt, rose to a higher plane, but which He never entirely abandoned: “If I have spoken wrongly, bear witness about the wrong; but if rightly, why do you strike me?” (John 18:23). These words without doubt express a demand for freedom of speech and freedom for the accused. But they rest again upon that principle of Hebrew law by which witnesses assumed the entire burden of responsibility and the very initiative of every accusation, and were even obligated to appear at the conclusion of the case and with their own hands to stone the condemned. And the repeated protest achieved its purpose. For now witnesses came forward, or more precisely, were invited to present their testimonies. When they appeared—and not before—did the formal trial properly begin under Hebrew law.

All of this, or most of it, took place at night. But was a nocturnal session of the court lawful?

Under all the provisions of Hebrew law, the conduct of a trial at night was absolutely unlawful and invalid, in whatever form it might be conducted. In one passage of the Mishnah there is set forth a law contrasting criminal procedure with civil procedure. It is so striking that we venture to quote it here in full, though for our purposes only the concluding words of the paragraph are actually important:

“Civil and criminal proceedings are subject to the same rules with respect to examinations and inquiries. But they differ in their manner of procedure—in the following points. For the former, only three judges are needed; for the latter—twenty-three. In the former it is immaterial which side those who first give their opinions speak for; in the latter, those who speak for acquittal must speak first. In the former, a majority of one vote is always sufficient; in the latter, a majority of one vote is always sufficient for acquittal, but a majority of two votes is required for condemnation. In the former, a verdict (in case of error) may be reversed whichever way it has inclined; in the latter, a condemnation may be reversed, but an acquittal may not. In the former, students of the law who are present in court may speak (as assessors or assistants) both for and against the accused; in the latter, they may speak in favor of the accused but not against him. In the former, a judge who has expressed his opinion, whether for or against, may change it; in the latter, one who has voted for condemnation may change his opinion, but one who has voted for acquittal may not. The former (civil proceeding) may begin only in the daytime, but may conclude even after nightfall; the latter (criminal proceeding) begins only in the daytime, and must likewise be concluded in the daytime. The former may end in acquittal or condemnation on the same day on which it began; the latter may be concluded on the same day if an acquittal is pronounced, but must be deferred until the following day in the event that it is to end in condemnation. And for this reason, criminal proceedings may not be begun on the eve of a Sabbath or a festival.”

The crucifixion of Jesus took place (of this there has scarcely ever been any doubt) on a Friday—the eve of the Sabbath, which was moreover a great day (John 19:31)—and the session of the council took place on that same Friday morning. Such a session on such a day was forbidden. If it was convened solely for the purpose of pronouncing an acquittal, it was lawful. But if the court could not immediately acquit the defendant, it was obliged to defer by at least twenty-four hours the session for pronouncing the final verdict. The final session likewise could not take place on the Sabbath. The necessity of deferring a criminal trial in order to protect the rights of the accused is shown very clearly in the detailed prescriptions of the Mishnah.

“If a man is found innocent, the court acquits him. Otherwise, the sentence over him is deferred until the following day. In the meantime, the judges assemble together and, eating a little food but drinking no wine throughout that day, deliberate upon the case. On the following morning they return to the session” and again cast their votes, with the same precautions as before… If finally the sentence is pronounced, they lead the condemned for stoning. The place of execution must be separate from the court (for in Leviticus 24:14 it is said: “bring out him who has cursed the name of the Lord outside the camp”). At this time one officer of justice must stand at the door of the court with a cloth in his hand; another follows on horseback behind the procession to the place of execution, but stops at the farthest point from which he can still see the man with the cloth. The judges continue to sit, and if anyone undertakes to prove the condemned innocent, the one standing at the door waves the cloth, and the horseman at that very moment rides off after the condemned and summons him to defend himself once more.

These prescriptions, taken not from a commentary on the oral law but from the Mishnah itself, probably existed in full detail during the high priesthood of Caiaphas. There is no reason to doubt that at least the general rule prescribing the deferral of the conclusion of proceedings to the following day was binding upon the judges of Jesus of Nazareth. In no case was this rule so absolutely binding for justice as in the present one, where the Accused, arrested after nightfall, was brought to trial at dawn without the slightest possibility of presenting witnesses for his defense. The Gemara calls it cruelty to hasten the day of death of the accused; here this cruelty had passed into manifest injustice, since the actual trial, begun contrary to law at too early an hour, was probably concluded on the merits of the case in the darkness of night. This would have been an intolerable violation of right in an ordinary civil action, which could be initiated and the proceedings begun only in the daytime, though on occasion they might continue into the nighttime until the rendering of a verdict. But an important criminal case—a case of a crime that undoubtedly entailed capital punishment—had to begin, and to be resumed or continued and concluded, only in daylight. And the fact that a trial by which a descendant of Israel, a native Hebrew known to all the people as “a man mighty in word and deed,” could be deprived of life—that such a trial was begun and concluded with a formal verdict in the span of time between midnight and morning—was a trampling of both the forms and rules of Hebrew law and of the fundamental principles of justice. And since Salvador pays absolutely no attention to this extraordinary violation of right, we have no need to examine in detail his defense of the other portions of this allegedly lawful proceeding.

It cannot be doubted, however, that during these unseasonable hours, between the night of Thursday and the morning of Friday, certain forms of procedure under Hebrew law were observed. However unjust the judges of Christ may have been, they were nonetheless men educated in Hebrew law and thoroughly acquainted with all its details; they must have felt it impossible for themselves, having violated judicial truth, to violate all the forms of trial as well. Jesus Christ, as we have seen, demanded a genuine formal charge and inquiry: “why do you ask me? Ask those who have heard me what I said to them” (John 18:21). And to the very end we shall hear from Him no more words on this matter. When the demand for public justice was answered with a nocturnal examination, the Accused declined to participate in it. During this time much happened. The members of the council sought witnesses against Jesus. Matthew says that they sought false testimony (Matt. 26:60). But even the simple “seeking” was a scandalous impropriety on the part of the court. Hebrew judges, as we have seen, appeared and were required to appear at trial as chiefly the defenders of the accused. And one of the most awful spectacles the world has ever witnessed must have been the adjuration, or solemn address to the witnesses who had come to testify against the life of Jesus. This form of adjuration or solemn address is preserved intact to this day in Hebrew law. It was the duty of the high priest to pronounce the adjuration before each witness in a criminal case, and then to swear them in. Who can measure the effect that the adjuration produced, when it was pronounced by the sacred judge of Israel, upon persons obligated throughout its pronouncement to look into the face of the accused?

“Forget not, O witness, that it is one thing to give testimony in court concerning property, and another thing to do so in a court where the matter is one of life. In a monetary dispute, if your testimony is incorrect, the whole affair ends with money. But if you sin in a court that decides a question of life, then the blood of the accused and the blood of his seed unto the end of the world shall be imputed to you… That is why Adam was created alone—to teach you that if any witness destroys one soul from among Israel, Scripture considers him as having destroyed the whole world; and one who saves one such soul—as though he had saved the world. For with one seal of his ring a man may make many impressions, and all of them will be exactly alike. But He, the King of kings, He, the Holy and Blessed One, from the image of the first man has taken the images of all the people who shall live; so, however, that no human being fully resembles another. Therefore, let us think and believe that the whole world was created for a man such as he whose life depends upon your words.”

The Son of Man, whose life the law shielded with such a terrible sacred rite, stood silent before the witnesses; and, for whatever reason, their testimonies were found insufficient. What does Hebrew law say about testimony? The Talmud divides all oral testimony into:

1) worthless testimony,

2) insufficient or single testimony,

3) proper testimony; or (perhaps) testimony that is in agreement with itself.

The testimonies of the witnesses who were examined first during that night appear to have been dismissed as belonging to the first category; for “worthless testimony” was not admitted even provisionally, nor recorded, until it could be confirmed at a later time. “Insufficient testimony,” on the other hand, was provisionally admissible but had no force until confirmed by others. To this intermediate category belonged the testimony of the witness who declared himself to have heard Jesus’s saying concerning the destruction and reconstruction of the Temple. When a second witness then joined him, the question arose: does the testimony of both rise to the third and higher degree of testimony known as “testimony of persons in agreement with one another”? “But,” says Mark, using the precise technical expression, their testimonies were not sufficient — or in accord with one another. Undoubtedly there was a verbal discrepancy in the testimony about the facts. This discrepancy, by our modern standards, would be of no importance. Mark renders the testimony of both in one and the same sentence, making no distinction between them. And Matthew does the same, differing little from Mark. Neither one nor the other makes any explicit distinction between the depositions of these two witnesses. Suppose that the discrepancy (as indicated by Mark) consisted only in the fact that one said in the words of Matthew: “I am able to destroy the temple of God” (Matt. 26:61), while the other said “I will destroy this temple.” Yet even a discrepancy such as this was sufficient to destroy the force of their testimony. “In Hebrew criminal procedure, the slightest disagreement in witness testimony was considered to nullify its force.” A simple difference in words could sometimes carry the weight of an irrefutable objection in the mind of even such a judge as Caiaphas. The testimonies of the earlier witnesses, whom the evangelists, departing from their usual restraint, directly call “false witnesses,” were probably weak and contradictory. As for the last two witnesses, it is entirely possible that the difference between the accounts of their testimonies in these two evangelists did not concern merely words, but presented a substantial and important difficulty of great significance in the course of the case.

Here we come face to face with the most important questions of the entire inquiry: for what crime was Jesus being tried all this time? On what charge and by virtue of what indictment did He stand before the Sanhedrin? Until now we have had in the account of the trial no indication on this matter. In a modern trial, such a state of affairs would be extraordinary. To try a man, especially in a criminal proceeding, without previously specifying the crime for which he is tried, is rightly considered a violation of right. But we must not judge Hebrew law, or the ancient law of any people, by our modern statutes. Hebrew law, as we have seen, gave witnesses a particularly important significance. And in ancient times the accusation consisted precisely in the testimonies of the principal witnesses. There was no other charge, no other formal indictment. While witnesses spoke—and they always spoke in open session—the prisoner was scarcely recognized even as a defendant. When they concluded their account and the testimonies of two of them were found to be in agreement with one another, these testimonies took on the force of a lawful accusation, charge, or indictment, and at the same time served as the evidence. This, for us paradoxical but in practice simple and natural, origination of every Hebrew criminal case is nowhere better explained than in the ancient celebrated case of Naboth the Israelite: “they proclaimed a fast and set Naboth at the head of the people. And two worthless men came in and sat across from him, and these evil men testified against him before the people, saying: ‘Naboth cursed God and the king,’ and they carried him out of the city and stoned him with stones, and he died” (1 Kings 21:12–13). With remarkable precision the essential points of Hebrew criminal procedure are here presented. But in the case of Naboth the false witnesses, suborned by the daughter of the king of Sidon (1 Kings 14:31), are shown as using the technical legal designation (nomen juris) of blasphemy. In the trial of Jesus, the witnesses are said plainly to be testifying only about a particular utterance of the Accused. What crime, then, did the accusers or judges seek to find in that utterance? Two different meanings could be assigned to the cited phrase. According to one reading, the words “I will destroy this temple made with hands, and in three days I will build another made without hands” (Mark 14:58) could be interpreted as an attack on existing institutions, or as signifying an intention to “destroy the law and the prophets.” A very important elucidation of this is provided by the parallel charge leveled several months later against Stephen: “we have heard him say that Jesus of Nazareth will destroy this place and will change the customs that Moses delivered to us” (Acts 6:14). Under another view, in the cited saying—and precisely in the altered form it takes in Matthew: I am able to destroy the temple of God (Matt. 26:61)—there may have been an attempt to find grounds for an accusation of arrogant self-ascription of superhuman power. Thus the Jews who first heard that saying understood it: “It has taken forty-six years to build this temple, and will you raise it up in three days?” (John 2:20). It should be noted that these two charges, though different, are not incompatible with each other. Could He not be accused both of attempting to change the national institutions, and of claiming miraculous power? Or, to generalize both of these offenses, we may say: Jesus was ultimately condemned for “blasphemy,” because He declared Himself to be the Messiah and Son of God, thereby arrogating to Himself rights exceeding even those that the witnesses suborned by the court attributed to Him. Blasphemy was implied by one of the charges—the charge that He attributed to Himself superhuman power. Under the same legal category, or nomen juris—that is, under the category of blasphemy—the other charge was also subsumed. This is suggested to us by the witnesses against Stephen, who called Stephen’s discourse concerning the transitory significance of the holy place and the law “blasphemous words” (Acts 6:13, 14). And in our opinion, no Hebrew category of offenses can be found under which the attempt to abolish the ancient institutions could so naturally fall as under the category designated by the term blasphemy. The witnesses had this in mind from the beginning, and the judges beyond doubt had it in mind as well; and it is not superfluous for us to examine the question: what did this legal term signify?

Blasphemy—or more precisely, sacrilege—is not an offense in general, but an offense which, as its very name indicates, is directed immediately against God. Such was in ancient times the meaning of the word “blasphemy,” and it has begun once more to be given this sense in more recent times. But in the countries of Europe governed by both civil and canon law, blasphemy acquired a secondary and derivative meaning. In their codes it occupies first place in the enumeration of crimes constituting treason against the Deity, preceding even treason against the state. And this crimen laesae majestatis divinae (the crime of insulting the Divine Majesty), like the crime of treason against earthly rulers, has often in practice received too broad an application. We will not examine whether in general it is necessary for ordinary peoples and legislatures to have in their codes such a crime as treason against God. Undoubtedly, in the Hebrew state and legislation this was necessary. The Hebrew state was a pure theocracy, and all its prophets, priests, judges, and kings were in the proper sense officials and servants of the Invisible King, whose revelation determined the state order and law of Israel. Under such a state structure, blasphemy or verbal denial of God was in the direct and proper sense of the word treason against the state; and every attempt to overthrow the majesty of the institution of theocratic governance constituted treason in a derivative, non-literal sense. There is no doubt that this word was used in the age of Caiaphas to designate the aforementioned attempts against the divine system of Hebrew religion.

Remaining on strictly historical ground in our juridical analysis, we must acknowledge that the general course of the nocturnal proceedings against Jesus Christ had been plotted in advance (that is, immediately after the raising of Lazarus, and perhaps even earlier) by the leading members of the Sanhedrin, and that they—not the witnesses—were in fact directing the accusation. In the Gospel we have decisive evidence of this (John 7:25, 30, 45; 8:40; 9:22; 11:47, 57; Matt. 21:23, 46; Luke 20:20; Matt. 26:3 and following). At repeated sessions of the assembly, which in the fourth Gospel are called sessions of the Sanhedrin (John 11:47), the suppression of Jesus’s activity, and if need be His death, had already been decided. And in those sessions of the Sanhedrin that preceded the arrest of Jesus Christ, it was not His actions alone, as a prophet or opponent of existing institutions, that were under discussion. His declarations that He was the Christ and even the Son of God (which His closest followers had long since recognized)—whatever significance one may have attached to these mysterious declarations—greatly troubled the conscience of the Jews, especially in Jerusalem. The decision indicated in the fourth Gospel—“that if anyone should confess Jesus to be Christ, he was to be put out of the synagogue” (John 9:22)—did not properly deny the validity of these declarations. It, as Neander supposes, perhaps only reserved the examination of these declarations to the sole authority having the right to examine such questions—the great council of the people—while at the same time forbidding all private individuals, whatever their personal convictions might be, to express those convictions publicly until a solemn verdict of the Sanhedrin was rendered. The time for pronouncing such a verdict had now come, and one may easily imagine what troubled questions occupied the minds of the judges as, in that early morning hour, they listened to witness after witness.

The testimonies, as all the evangelists attest, were found on trial to be insufficient—perhaps “irrelevant”—in any case unsuitable for the judges to base their conviction upon them alone. The rule of law for such a case stated clearly that the accused was at once to be released. Even if the incriminating testimony had been found sufficient, the next step of the court under the rules of Hebrew procedure would have had to consist in inviting witnesses for the defense. But making such an arrangement in the nighttime would have been inconvenient, and the trial would have had to be suspended. Neither one nor the other was done; instead, an attempt was made to subject the Accused to cross-examination. “Have you no answer to make? What is it that these men testify against you?” — these are the actual words of the high priest, repeated in two Gospels (Mark 14:60; Matt. 26:62). But He was silent and made no answer (Mark 14:61). The interrogation was unlawful. This silence must not be interpreted as a result of indignation at the errors or lies of the accusers, or at the bad faith of the judges. That the ordinary rights of any accused Hebrew presented themselves to the mind of Jesus, we have already seen. But that He hoped in some way to escape condemnation, or even that He wished to escape it given the present state of affairs, there is no indication of this anywhere. All the narratives unanimously show that He had some time earlier foretold the approach of the shattering end of His earthly ministry. The sayings spoken by Him in anticipation of this end during the preceding weeks, and especially the preceding day, are known to all and display the most supreme self-mastery. This height of self-mastery distinguished Him also in this decisive hour. Inaccurate or malicious reports of what He had said three years earlier drew no attention from Him now. He had not come to Jerusalem to die by mistake; and if we strongly desire to form some idea of what thoughts occupied Him as He remained silent, we may suppose that what occupied Him was the spectacle now before His eyes. Here at last, in the persons of their supreme council and great multitude of people, the sons of the house of Israel had gathered before Him. He had always professed Himself appointed and sent to the service of this people; now they met for the last time; and all the ages of Israel’s past history presented themselves to the mind of One who stood here awaiting His sentence.

It is impossible to determine the exact hour at which the great concluding scene took place, so vividly described by three evangelists. It is certain that the private and public examinations of witnesses must have taken a considerable time; whether or not “the whole council” or only one division of its members was present during the examinations, it is entirely certain that while the examinations continued a great number of members of the great Sanhedrin had assembled for the session. The members of this institution numbered seventy-one; in the “lesser Sanhedrin,” which was probably a committee or subdivision formed from the members of the first, there were only twenty-three members. It is very possible that at such an early hour Caiaphas had convened the “lesser assembly” and that no other was convened at all; though the accounts of the evangelists rather suggest that the “great council” was convened—the one alone that at that time could try a man on a criminal charge, and which alone at any time could try a prophet. Granting, in accordance with the manner of expression of the evangelists, that in this point the law was observed—in that case we may picture the following scene of the trial. The council sat in the Chamber of Hewn Stone (Gazith). The seats of the judges were arranged in a semicircle, with half the members sitting on the right and the other half on the left of the presiding officer, or nasi, who in this case was the high priest Caiaphas. On one side of him sat the “father of the court,” on the other the “sage.” Two scribes sat at a table for recording the votes; two officers kept guard over the Prisoner, who stood directly before the presiding officer. In this body of judges, Caiaphas and his associates represented the powerful Sadducean party. The Sadducees, as rationalists, did not harbor great enmity toward Jesus; what repelled them from Christ was only their common disinclination to recognize any participation of Divine Providence in human affairs. But as the aristocratic and official party, they took very keenly to heart the disruption that religious enthusiasm ordinarily produces in the ordinary life of society, and were always disposed to suppress enthusiasm before it could spread to dangerous bounds. Let us recall here the session that the chief priests and Pharisees convened immediately after the raising of Lazarus. At that session the head of the Sadducees, Caiaphas, made his remarkable appeal to salus populi (the safety of the people) as a goal standing above all individual rights: “you know nothing at all. Nor do you understand that it is better for you that one man should die for the people, not that the whole nation should perish” (John 11:50). The appeal was, on its face, quite well-grounded and testified to his clear-sighted understanding of both his own people and the Roman authorities—a broad view that missed no element that ought to be taken into account, none, except the being of God and His providential nearness to man. The high priest expressed at that time a cold and calm, hatred-free resolution to be rid of a holy Fellow-Citizen, and at that point the decision to put Jesus to death was made (John 11:53). But at the very moment of executing this plan—that is, in the actual conduct of the trial—there was already a note of irritation in his voice. On the other side, the Pharisees, who also constituted a significant part of the council, with their patriotic and religious convictions must at first have pondered the preaching of Jesus and even felt a certain sympathy for it. But the inner conflict they undoubtedly experienced before they decisively rejected His claims was the reason that, following this rejection, by the ordinary laws of human nature, there had gradually grown an hostility that by this time had passed into the most intense hatred. It was these zealots of the council who began the extraordinary and tumultuous scene with which the session concluded. During the last examination of witnesses Jesus was silent; but the thought of His claim to the rights of the Messiah and of God, which had not left the judges for a moment, weighed upon them with its burden, and at last they could no longer contain themselves.

Certain differences in the accounts of the evangelists at this point (quite inessential, moreover) allow us to picture this scene with greater detail and historical fidelity. “If you are the Christ, tell us” (Luke 22:67), the judges cried out; and to the passionate and hostile shouts of the crowd of judges, described in one Gospel, an end was put only by the solemn adjuration of the presiding officer, recorded in another (Matt. 26:63). To the ardent and hostile questions of the council, Jesus at first replied with a non-committal expression: “If I tell you, you will not believe” (Luke 22:67), giving them to understand that they had forgotten their duty to examine His very claims. Then He adds: “And if I ask you” (as He had done several days earlier in the temple, when they asked Him: by what authority are you doing these things — Matt. 21:23), “you will not answer me, nor will you release me” (Luke 22:68)—His Prisoner. The observation was entirely accurate! The council could no longer be turned from its purpose by Jesus’s renewed demand for judicial honesty and order in the trial. They saw upon His face the radiance of that other-worldly right which His lips still lingered for a few moments before confirming as His own, and with a mingled feeling of fear and hatred, rising to their feet, they all said with one voice: So you are the Son of God?

But now, rising above that crowd of aged and rage-distorted faces, stood the high priest of Israel, and all voices fell silent; the judges sat down; the chief dignitary and judge of the holy people, in the name of the God he served, demanded an answer to his solemn adjuration: “I adjure you by the living God: tell us if you are the Christ, the Son of the Blessed.” This was the question whose resolution people had long awaited! Now came the answer: “I am the Christ, the Son of God”; and, turning to the assembly seated around Him in their official places, the Accused added: “From now on you will see the Son of Man seated at the right hand of Power and coming on the clouds of heaven” (Matt. 26:63; Mark 14:61–62). When a Jewish king announced his accession to the throne, he would ordinarily stand by a pillar of the Temple, and the joyful people of the Israelite land would greet him with shouts of hosanna, with singing, with palm branches, and with the sound of trumpets. And if they thus greeted an ordinary king, how ought they to have received the Messianic King? But when someone blasphemed the name of God, Jewish law required that every person who heard the blasphemy must rend his garment from top to bottom. By which of these two means did the Jewish people receive the confession of Jesus? No sooner had Jesus attested His confession before so many witnesses than the high priest, tearing his robes, said: “He has uttered blasphemy. What further witnesses do we need? You have now heard his blasphemy. What is your judgment?” They answered: He is Ish Maveth — that is, deserving of death (Matt. 26:65–66). “And they all condemned him as deserving death” (Mark 14:64).

Thus came about this great condemnation! We have still a few observations to make on a very few points. One of these points concerns the lawfulness of the high priest’s adjuration and the juridical use made of the accused’s confession. The Talmudists on this point speak with the utmost definiteness. “Our law,” says Maimonides, “condemns no one to death on the basis of his own confession.” “Our fundamental rule,” says Bartenora, “is that no one can injure himself by what he says in court.” It follows that putting the question to the Accused was an extreme violation of the forms of justice. However, the question was put: quid juris—by what right? If the declarations made by Jesus regarding His Messianic dignity had reached the Sanhedrin in the same substance but by a lawful path—that is, from witnesses rather than from Himself—could they have led to this condemnation? In answer to this, we shall first recall the distinction already made between blasphemy in its simple sense of impiety or insult to God, and blasphemy as a crime equivalent to treason against the theocracy. In the first sense, there was no blasphemy here: the words of the great Accused were full of filial devotion to the Father. We must therefore turn to the latter meaning of the word blasphemy and raise the difficult question: did it constitute treason for a Jew to declare himself the Messiah—the Son of God? Beyond the slightest doubt it did, if this declaration was an unjust one.

In that case, the substance of the crime would consist in the falsity of the declarations, and this very falsity had to be demonstrated and established before the judicial verdict. The mere declaration of a claim to Messianic dignity was not yet a crime. “Are you the Christ?” — the Jews constantly asked—both John and Jesus and generally every reformer and every prophet—though an affirmative answer to this question was beyond doubt regarded as the boldest claim human lips could make. What relation in fact the Jews of that day placed the Messiah to their Invisible King, and in what sense the dignity of “Son of God”—not unknown even to that age—was attributed to the expected Messiah: the resolution of these questions is not required for our task.

The Defendant’s declaration of this twofold right, made in answer to the question of the great high priest who placed these two concepts in mutual connection (Are you the Christ, the Son of God? — Matt. 26:63), could in no way release the Hebrew tribunal from the obligation to examine His claims. An unbelieving judge like Caiaphas, when answered to his adjuration with a confession, should properly have retorted: “What sign do you show us, that we may see and believe in you?” (John 6:30). Instead he tore his robes and said: Why do we still need witnesses? (Mark 14:63). Such a turn of events was either arranged in advance so that this maneuver might bring this allegedly lawful proceeding to a close, or it was a sudden inspiration of evil, when the unrighteous judge no longer fully controlled himself; the cold calculations and bloodthirsty thoughts that had lurked so long within him suddenly, at the encounter with Righteousness standing before him face to face, burst forth irresistibly.

We have now concluded our examination of the Hebrew trial of Jesus Christ. Here are the conclusions to which the inquiry leads:

I. The trial began, continued, and seemingly was concluded within the space of almost a single night; witnesses against the Accused were procured by the judges, but the witness testimonies could not be accepted even by such judges.

II. The trial began with cross-examinations, which Jewish law did not permit, and concluded with a demand for a personal confession, expressly forbidden by the Jewish interpreters of the law.

III. The trial was followed, twenty-four hours before the legally prescribed time, by a verdict that declared blasphemous the claimed right to the dignity of the Fulfiller of Israel’s hopes. Such a trial possessed neither the forms nor the integrity of lawful judicial proceedings.

We now turn to an examination of Roman judicial procedure.