POINT IX
THE CONDEMNATION OF JESUS WAS ILLEGAL BECAUSE THE VERDICT OF THE SANHEDRIN WAS UNANIMOUS
LAW
"A simultaneous and unanimous verdict of guilt rendered on the day of the trial has the effect of an acquittal."—Mendelsohn, "Criminal Jurisprudence of the Ancient Hebrews," p. 141.
"If none of the judges defend the culprit, i.e., all pronounce him guilty, having no defender in the court, the verdict of guilty was invalid and the sentence of death could not be executed."—Rabbi Wise, "Martyrdom of Jesus," p. 74.
FACT AND ARGUMENT
Few stranger rules can be found in the jurisprudence 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 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 distinctive 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[282] has declared that law is the perfection of reason. But when we contemplate 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 precipitancy in capital proceedings. And what could be more precipitate than an instantaneous and unanimous verdict? "But where all suddenly agree on conviction, 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.[283] 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. Seventy-one constituted the membership of the Great Sanhedrin. 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 permitted to destroy a rule of action that in its general 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."[284] If they all condemned Him, the verdict was unanimous and therefore illegal. The other Evangelists do not tell us that the verdict was unanimous; neither do they deny it. Mark's testimony stands alone and uncontradicted; therefore we must assume that it is true.
Rabbi Wise[285] and Signor Rosadi[286] call attention to the fact that the verdict was unanimous. The former seeks to ridicule Mark as an authority because a unanimous 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 light of the authorities. Only two of the Gospel writers, Matthew and Mark, tell us of the night trial. Both declare that "all the council" were present.[287] 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."[288] 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."[289] 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 insist that both Matthew and Mark were employing a figure of speech, synecdoche, when they said that "all the council" were present. But these same writers seem to think that these same Evangelists were in earnest 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 unanimity 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 Arimathea, who were friends of Jesus. Nicodemus was certainly a member of the Great Sanhedrin. This we learn from two passages of New Testament scripture.[290] It is also believed that Joseph of Arimathea was a member from a mere suggestion in another passage.[291] 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 truthfully when he said that "they all condemned him to be guilty of death"; then it naturally and inevitably 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 defended Jesus by asking his fellow-judges this question: "Doth our law judge any man before it hear him and know what he doeth?"[292] 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 Nicodemus 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 daytime, but preferred to do it at night.[293]
Concerning the part taken by Nicodemus in the final proceedings, Rosadi says: "The verdict was unanimous. The members of the Sanhedrin who were secretly 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 pronouncement expressed by acclamation."
If Joseph of Arimathea was a member of the Great Sanhedrin, it seems that he "had not consented to the counsel and the deed of them."[294] 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 consent, 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 destroy 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 reference, 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.