POINT I
THE ARREST OF JESUS WAS ILLEGAL
LAW
"Now the Jewish law prohibited all proceedings by night."—Dupin, "Jesus Devant Caïphe 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."—Mendelsohn, "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: (1) 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 result of a legal mandate from a court whose intentions were to conduct a legal trial for the purpose of reaching a righteous judgment. These elements of illegality will be apparent when the facts of the arrest are briefly stated.
It was the 14th Nisan, according to the Jewish calendar; or April 6th, A.D. 30, according to our calendar. The Paschal Feast was at hand. The eyes of all Israel were centered upon the Metropolis of Judaism. 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 offerings 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 religious 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 outskirts 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-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 Covenant was affixed, the bond of the new human spiritual alliance was made. The great law of love was proclaimed 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 regenerate of earth, the Mediator, and the great Father of love, Himself. There, too, was given the great example of humility which was to characterize true Christian 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, simple-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.
During the evening, a bitter anxiety, an awful melancholy, seized the devoted band, whose number, thirteen, 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 heartlessness 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 whispered 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 Iscariot, the son of Simon. And after the sop Satan entered 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,"[228] 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 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 Lebbæus 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 Bethsaida 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 celebrating the great Feast; in drinking wine; in eating the Paschal lamb, the unleavened bread, and the bitter herbs; in singing hymns, offering prayers, and performing the sacred rites; in delivering discourses which in every age have been the most precious treasures of Christians, and in expressing doubts and fears that have excited the astonishment and even the ridicule 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 Garden 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 sanctuary 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 Apostles and took with Him the other three: Peter, James, and John. These men seem to have been the best beloved of the Master. They were with Him at the raising 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 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 overcame 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 return, 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 officers 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 answered. "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 disciples was to the end that prophecy might be fulfilled.[229] 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 proclaimed 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 Hebrew 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. We have it upon the authority of Dupin that it applied 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.[230] Deference to this rule seems to have been shown in the arrest of Peter and John on another occasion. "And they laid hands upon them and put them in hold unto the next day: for it was now eventide."[231] That Jesus was arrested at night is clearly evident from the fact that those who captured Him bore "lanterns and torches and weapons."
The employment of Judas by the Sanhedrin authorities constitutes the second element of illegality in the arrest. This wretched creature had been numbered among the Twelve, had been blessed and honored, not merely with discipleship but with apostleship, 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.[232] This craven and cowardly Apostate was employed by the Sanhedrin Council 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 therefore 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 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 members 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, however, 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 testimony of an accomplice is admissible, but must be corroborated 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 untrustworthiness of such testimony is that in several states an accomplice is not permitted to corroborate another accomplice, so as to satisfy the statutes.[233] 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 impossible to punish crime if guilty confederates were not allowed and even encouraged to give state's evidence.
But notwithstanding this supreme consideration of the necessity of the preservation of the state, the ancient Hebrews forbade the use of accomplice testimony, 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 supposition 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 shall 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." 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 inseparable. The ancient Hebrew religion was founded upon a contract of the strictest legal kind. The Abrahamic 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 reflected 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 different 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 whereabouts of the Savior, that Gethsemane was His accustomed 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 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 "talebearer" 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 nearest 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 consideration 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 design. 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, 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 independence 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 promotion was in sight. He was perfectly contented to carry for a while the "little bag," provided there was reasonable assurance that later on he would be permitted to carry a larger one.
As the months and years rolled by, heavy scales began to fall from his stupid eyes and he began to be deceived not by but in Jesus. We are justified in believing 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 qualifications of a great republican leader and successful revolutionist. And after a while he doubtless began to tire of all this when he saw that the revolution was not progressing 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 and heart at Capernaum, when Jesus was deserted by many of His followers and was forced to effect a realignment 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 chagrin the failure of Jesus to proclaim Himself king when, at Bethphage, the multitude had greeted His entrance into Jerusalem with Hosannas and acclamations. And now, at the Last Supper, he became convinced 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 because he could not understand. In other words, he witnessed in the resolve of Jesus to die at once the shipwreck 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 another 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 cardinal 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, 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 procedure," he says, "against the 'corrupter' (mesith), who sought to attaint the purity of religion, is explained in the Talmud, with details, the naïve impudence of which provokes a smile. A judicial ambush is therein erected into an essential part of the examination 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 perceiving them. Two candles were lighted near him, in order that it might be satisfactorily proved that the witnesses 'saw him.' (In criminal matters, eyewitnesses 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 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 'corruption' is, moreover, the only one for which the witnesses are thus prepared."[234]
Most Gentile writers ridicule this statement of the Talmud, and maintain that it was a Rabbinic invention of post-Apostolic days, and was intended to offer an excuse for the outrageous proceedings against the Christ. Schürer dismisses the whole proposition with contempt. Many Jewish scholars also refuse it the sanction of their authority. But even if it was a Talmudic 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 Judaism, 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 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 Leviticus; and his employment by the Sanhedrin was a violation of a fundamental provision in the Mosaic Code.
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 between 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 preventive 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."