Another distinction that must be made is that relating to the kind of law that is meant, when it is said that the conviction of Jesus was "substantially right in point of law." Ancient Hebrew law is meant, and as that law was interpreted from the standpoint of ancient Judaism. The policy and precepts of the New Dispensation inaugurated by Jesus can hardly be considered, in a legal sense, to have been binding upon Caiaphas and the Sanhedrin, since the very claims of Jesus to Messiahship and identity with God were to be tested by the provisions of the Mosaic Code and in the light of Hebrew prophecy. The Pentateuch, the Prophets, and the Talmud were the legal guides, then, of the judges of Israel in judicial proceedings at this time, and furnished rules for determining the genuineness of His pretensions.
Mr. Greenleaf, the author of the phrase, "substantially right in point of law," asserts that the trial was not legal in all its forms, but he fails to enumerate the errors. The purpose of the Brief in this work is to name and discuss the errors and irregularities of the Hebrew trial, that is, the trial before the Sanhedrin.
But the question may be asked: Why be guilty of the inconsistency of discussing illegalities, when admission has already been made that the decision was "substantially right in point of law"? The answer is that a distinction must be made between that which is popularly and historically known or believed to be true, and that which has not been or cannot be proved in a court of law. Every lawyer is familiar with this distinction. The court may know that the accused is guilty, the jury may know it, the attorneys may be perfectly sure of it, but if the verdict of guilt returned by the jury into court is not based upon testimony that came from the witness stand from witnesses who were under oath, and that had submitted to cross-examination, such verdict would hardly be sustained on appeal. In other words, the lives and liberties of alleged criminals must not be endangered by extra-judicial and incompetent testimony. A legal verdict can be rendered only when a regular trial has been had before a competent court, having jurisdiction of the crime charged, and after all legal rules have been observed which the constitution and the laws have provided as safeguards for the protection of the rights of both the people and the prisoner. However heinous the offense committed, no man is, legally speaking, a criminal, until he has been legally tried and declared a criminal. The presumption of innocence, a substantial legal right, is thrown around him from the very beginning, and continues in his favor until it is overthrown by competent and satisfactory evidence. Unless such evidence is furnished, under legal forms, no man, however morally guilty, can be denominated a criminal, in a juristic sense, in the face of the perpetual continuance of this presumption of innocence.
If these rules and principles be applied to the trial of Jesus, either before the Sanhedrin or before Pilate, it can be easily demonstrated that while He might have been abstractly and historically guilty of the crime of blasphemy, in the wider acceptation of that term, He was not remotely a criminal, because He was never legally tried and convicted. In other words, his condemnation was not based upon a legal procedure that was in harmony with either the Mosaic Code or the Mishna. The pages of human history present no stronger case of judicial murder than the trial and crucifixion of Jesus of Nazareth, for the simple reason that all forms of law were outraged and trampled under foot in the proceedings instituted against Him. The errors were so numerous and the proceedings so flagrant that many have doubted the existence of a trial. Others have sought to attack the authenticity of the Gospel narratives and the veracity of the Gospel writers by pointing to the number of errors committed as evidence that no such proceedings ever took place. As Renan would say, this is a species of "naïve impudence," to assert that a trial was not had, because numerous errors are alleged; as if a Hebrew court could not either intentionally or unintentionally commit blunders and many of them. Every lawyer of extensive practice anywhere knows from experience that judges of great ability and exalted character conduct lengthy trials, in both civil and criminal cases, with the most painstaking care, and are aided by eminent counsel and good and honest jurors; the whole purpose of the proceedings being to reach a just and righteous verdict; and yet, on appeal, it is frequently held that not one but many errors have been committed.
At this point, a few preliminary observations are necessary as a means of introduction to the discussion of errors. Certain elementary principles should be clearly understood at the outset. In the first place, an analysis of the word "case," used in a juristic sense, shows the existence of two cardinal judicial elements: the element called Fact, and the element called Law. And whether the advocate is preparing a pleading at his desk, is making a speech to the jury, or addressing himself to the court, these elements are ever present in his mind. He is continually asking these questions: What are the facts of this case? What is the law applicable to these facts? Do the facts and law meet, harmonize, blend, according to the latest decision of the court of last resort? If so, a case is made; otherwise, not.
It is impossible to frame any legal argument upon any other basis than that of the agreement or nonagreement of law and fact, in a juristic sense; and upon this plan errors will be discussed and the Brief will be framed.
In the second place, it must not be forgotten that, in matters of review on appeal, errors will not be presumed; that is, errors will not be considered that do not appeal affirmatively upon the record. The law will rather presume and the court will assume that what should have been done, has been done. In conformity with this principle, only such errors will be discussed in these pages that affirmatively appear in the New Testament Gospels which form the record in this case. By "affirmatively appear" is meant that the error is clearly apparent or may be reasonably inferred.
In Part II of the preceding pages of this volume, Hebrew criminal law, which was actively in force at the time of Christ, was outlined and discussed. In Part I the Record of Fact was reviewed in the light of judicial rules. It is the present purpose, in Part III, to enumerate, in the form of a Brief, the errors committed by the Hebrew judges of Jesus, as the result of their failure to make the facts of their trial conform with the legal rules by which they were bound in all criminal proceedings where human life was at stake. The plan proposed is to announce successive errors in brief statements which will be designated "Points," in imitation of the New York method on appeal. Following the statement of error will be given a short synopsis of the law applicable to the point suggested. Then, finally, will follow the fact and argument necessary to elaboration and proof. Accordingly, in pursuance of this method, let us consider the points in order.