"The evidence of the leading witnesses constituted the charge. There was no other charge: no more formal indictment. Until they spoke, and spoke in the public assembly, the prisoner was scarcely an accused man. When they spoke, and the evidence of the two agreed together, it formed the legal charge, libel, or indictment, as well as the evidence for its truth."—Innes, "The Trial of Jesus Christ," p. 41.

"The only prosecutors known to Talmudic criminal jurisprudence are the witnesses to the crime. Their duty is to bring the matter to the cognizance of the court, and to bear witness against the criminal. In capital cases, they are the legal executioners also. Of an official accuser or prosecutor there is nowhere any trace in the laws of the ancient Hebrews."—Mendelsohn, "The Criminal Jurisprudence of the Ancient Hebrews," p. 110.

FACT AND ARGUMENT

The Gospel records disclose two distinct elements of illegality in the indictment against Jesus: (1) The accusation, at the trial, was twofold, vague, and indefinite, which Mosaic law forbade; (2) it was made, in part, by Caiaphas, the high priest, who was one of the judges of Jesus; while Hebrew law forbade any but leading witnesses to present the charge.

A thorough understanding of Point III depends upon keeping clearly in mind certain well-defined elementary principles of law. In the first place, it should be remembered that in most modern jurisdictions an indictment is simply an accusation, carries with it no presumption of guilt, and has no evidentiary force. Its only function is to bring the charge against the prisoner before the court and jury, and to notify the accused of the nature of the accusation against him. But not so under the ancient Hebrew scheme of justice. Under that system there was no such body as the modern Grand Jury, and no committee of the Sanhedrin exercised similar accusatory functions. The leading witnesses, and they alone, presented charges. It follows then, of necessity, that the ancient Hebrew indictment, unlike the modern indictment, carried with it a certain presumption of guilt and had certain evidentiary force. This could not be otherwise, since the testimony of the leading witnesses was at once the indictment and the evidence offered to prove it.

Again, in the very nature of things an indictment should, and under any enlightened system of jurisprudence, does clearly advise the accused of the exact nature of the charge against him. Under no other conditions would it be possible for a prisoner to prepare his defense. Most modern codes have sought to promote clearness and certainty in indictments by requiring the charging of only one crime in one indictment, and in language so clear and simple that the nature of the offense charged may be easily understood.

Now Salvador says that "certainty in the indictment" was one of the cardinal rules upon which rested the entire criminal procedure of the Mosaic Code. Was this rule observed in framing the accusation against Jesus at the night trial before the Sanhedrin? If so, the Gospel records do not disclose the fact. It is very certain, indeed, that the learned of no age of the world since the crucifixion have been able to agree among themselves as to the exact nature of the indictment against the Christ. This subject was too exhaustively discussed in the beginning of the Brief to warrant lengthy treatment here. Suffice it to say that the record of the night trial before Caiaphas discloses two distinct charges: the charge of sedition—the threat to destroy a national institution and to seduce the people from their ancient allegiance, in the matter of the destruction of the Temple; and the charge of blasphemy preferred by Caiaphas himself in the adjuration which he administered to Jesus. When the false witnesses failed to agree, their contradictory testimony was rejected and the charge of sedition was abandoned. And before Jesus had time to answer the question concerning sedition, another distinct charge, that of blasphemy, was made in almost the same breath.[247] Did this procedure tend to promote "certainty in the indictment"? Did it not result in the complete destruction of all clearness and certainty? Are we not justified in supposing that the silence of Jesus in the presence of His accusers was at least partially attributable to His failure to comprehend the exact nature of the charges against Him?

Again, the accusation was, in part, by Caiaphas, the high priest, who was also one of the judges of Jesus;[248] while Hebrew law forbade any but leading witnesses to present the charge. Edersheim tells us that "the Sanhedrin did not and could not originate charges; it only investigated those brought before it." If the Sanhedrin as a whole could not originate charges, because its members were judges, neither could any individual Sanhedrist do so. When the witnesses "agreed not together" in the matter of the charge of sedition, this accusation was abandoned. Caiaphas then deliberately assumed the rôle of accuser, in violation of the law, and charged Jesus, in the form of an adjuration, with blasphemy, in claiming to be "the Christ, the Son of God." Confession and condemnation then followed. Only leading witnesses could prefer criminal charges under Hebrew law. Caiaphas, being a judge, could not possibly be a witness; and could not, therefore, be an accuser. Therefore, the indictment against Jesus was illegally presented.

The writer believes that the above is a correct interpretation of the nature and number of the charges brought against the Christ, and that the legal aspects of the case are as above stated. But candor and impartiality require consideration of another view. Several excellent writers have contended that there were, in fact, not two charges preferred against Jesus but only one under different forms. These writers contend that Caiaphas and his colleagues understood that Jesus claimed supernatural power and identity with God when He declared that He was able to destroy the Temple and to build it again in three days,[249] and that the question of the high priest, "I adjure thee by the living God, that thou tell us whether thou be the Christ, the Son of God," flowed naturally from and had direct reference to the charge of being able to destroy the Temple. The advocates of this view appeal to the language of the original auditors to sustain their contention. "Forty-and-six years was this temple in building, and wilt thou rear it again in three days?" It is insisted that these words convey the idea that those who heard Jesus understood Him to mean that He had supernatural power. There is certainly much force in the contention but it fails to meet other difficulties. In the first place, it is not clear that a threat to destroy the Temple implied a claim to supernatural power; in which case there would be no connection between the first charge and that in which it was suggested that Jesus had claimed to be the Christ, the Son of God. In the second place, the contention that the two charges are substantially the same ignores the language of Mark, "But neither so did their witness agree together,"[250] which was certainly not injected by the author of the second Gospel as a matter of mere caprice or pastime. This language, legally interpreted, means that the testimony of the false witnesses, being contradictory, was thrown aside, and that the charge concerning the destruction of the Temple was abandoned. This is the opinion of Signor Rosadi and is very weighty.

Those writers who maintain that there was only one charge, that of blasphemy, under different forms, rely upon the passage in Matthew, "I am able to destroy the temple of God and to build it again in three days," and interpret it as a claim to supernatural power in the light of the language used by those who heard it: "Forty-and-six years was this temple in building, and wilt thou rear it again in three days?" Those who hold the opposite view, that there were two distinct charges, rely upon the passage in Mark, "I will destroy this temple that is made with hands, and within three days I will build another made without hands," and interpret it in the light of a similar accusation against Stephen a few months afterwards: "For we have heard him say, that this Jesus of Nazareth shall destroy this place, and shall change the customs which Moses delivered us."[251] This second interpretation, which we believe to be the better, establishes the existence at the trial of Christ of two distinct charges: that of sedition, based upon a threat to assault existing institutions; and that of blasphemy, founded upon the claim of equality with God. And, in the light of this interpretation, the illegality in the form of the indictment against Jesus has been urged.