The Trial of Jesus from a Lawyer's Standpoint Volume I Part 8

This, too, is a variation of the disqualification of interest.

(8) _The king could not be a member of the Sanhedrin._

Royalty disqualified from holding the place of judge because of the high station of the king and because his exercising judicial functions might hamper the administration of justice.

And, finally, in closing the enumeration of disqualifications, it may be added that an election to a seat obtained by fraud or any unfair means was null and void. No respect was shown for the piety or learning of such a judge; his judicial mantle was spat upon with scorn, and his fellow judges fled from him as from a plague or pest. Hebrew contempt for such a judge was expressed in the maxim: "The robe of the unfairly elected judge is to be respected not more than the blanket of an a.s.s."

_Officers of the Great Sanhedrin._--Two presiding officers directed the proceedings of the Great Sanhedrin. One of these, styled _prince_ (nasi), was the chief and the president of the court. The other, known as the _father of the Tribunal_ (ab-beth-din), was the vice-president.

There has been much discussion among the historians as to the particular chamber from which the president was chosen. Some have contended that the presidency of the Sanhedrin belonged by right to the high priest.

But the facts of history do not sustain this contention. Aaron was high priest at the time when Moses was president of the first Sanhedrin in the Wilderness; and, besides, the list of presidents preserved by the Talmud reveals the names of many who did not belong to the priesthood.

Maimonides has made the following very apt observation on the subject: "Whoever surpa.s.sed his colleagues in wisdom was made by them chief of the Sanhedrin."[94]

According to most Jewish writers, there were two scribes or secretaries of the Sanhedrin. But several others contend that there were three.

Benny says: "Three scribes were present; one was seated on the right, one on the left, the third in the center of the hall. The first recorded the names of the judges who voted for the acquittal of the accused, and the arguments upon which the acquittal was grounded. The second noted the names of such as decided to condemn the prisoner and the reasons upon which the conviction was based. The third kept an account of both the preceding so as to be able at any time to supply omissions or check inaccuracies in the memoranda of his brother reporters."[95]

In addition to these officers, there were still others who executed sentences and attended to all the police work of legal procedure. They were called _shoterim_.[96]

There was no such officer as a public prosecutor or State's attorney known to the laws of the ancient Hebrews. The witnesses to the crime were the only prosecutors recognized by Hebrew criminal jurisprudence; and in capital cases they were the legal executioners as well.

There was also no such body as the modern Grand Jury known to ancient Hebrew criminal law. And no similar body of committee of the Sanhedrin performed the accusatory functions of the modern Grand Jury. The witnesses were the only accusers, and their testimony was both the indictment and the evidence. Until they testified, the man suspected was deemed not only innocent but unaccused.

The profession of the law, in the modern sense of the term, was no part of the judicial system of the ancient Hebrews. There were no advocates as we know them. There were, indeed, men learned in the law--Pharisees and Sadducees--who knew all the law. There were doctors of the law: men whom Jesus confounded when a youth in the Temple at the age of twelve.[97] But there were no lawyers in the modern sense: professional characters who accept fees and prosecute cases. The judges and disciples performed all the duties of the modern attorney and counselor-at-law.

The prophets were the sole orators of Hebrew life, but they were never allowed to appear as defendants of accused persons. Indeed, they themselves were at times compelled to play the role of defendants.

Jeremiah is an ill.u.s.trious example.[98] Both Keim[99] and Geikie[100]

speak of a Baal Rib, a counsel appointed to see that everything possible was done to secure the rights of an accused person at a Hebrew criminal trial. But these statements are not in accord with standard works on ancient Hebrew jurisprudence. Indeed, Friedlieb emphatically denies that there was any such person as a Baal Rib or Dominus Litis among the ancient Hebrews.[101] It seems that in the closing years of Jewish nationality, specially retained advocates were known, for St. Luke tells us that the Jews employed Tertullus, a certain orator, to prosecute St.

Paul.[102] But this was certainly an exceptional case. It is historically certain that in the early ages of the Jewish Commonwealth litigants pleaded their own causes. This we learn from the case of the two women who appeared before King Solomon, and laid before him their respective claims to a child.[103]

_Compensation of Officers._--The judges of Israel were originally not paid anything for their services. The honor of the office itself was considered sufficient emolument for labors performed. Indeed, the office of teacher and judge in Israel was so highly prized that the struggles and sacrifices of a lifetime were not considered too great to pay for a place in the Great Sanhedrin. Such high station was regarded as a sacred sphere into which the idea of material gain should not enter. The regular court days were, therefore, spent by the judge on the bench, without any expectation of reward for his services. The other days of the week he spent in earning a livelihood. But in later years of the national life a change seems to have taken place. The ancient rule was so far modified that when the services of the judge were required on days when he was engaged in his private pursuits, custom and the law gave him the right to claim a subst.i.tute during the time he was occupied on the bench; or, in default of a subst.i.tute, to claim remuneration for the time which he had lost. Another modification was that if his legal duties required his entire time, the judge in Israel was ent.i.tled to support from the communal treasury, and was even permitted to accept fees from litigants. This practice was discouraged, however, by the Rabbis, who looked with disfavor upon the appointment of judges who were not entirely able to support themselves.

The secretaries and other officers of subordinate dignity were paid for their services.[104]

_Sessions of the Courts._--In the early days of the Hebrew Commonwealth the laws provided for no regular court days. The Sanhedrin convened as occasion required, to transact such business and dispose of such cases as came before it. But this practice was oftentimes found to be expensive and annoying to litigants who came into Jerusalem from the country and found no courts in session. To accommodate the country folk, the farmers, and shepherds, Ezra and his coadjutors of the Great a.s.sembly designated Mondays and Thursdays as regular court days. This enactment was not prohibitive, however. Court might be held on any day of the week that necessity required. The reason a.s.signed by the Rabbins for the selection of Mondays and Thursdays as court days was that on those days people from the country usually congregated in populous places, in their houses of worship, to hear the law read and interpreted. While in attendance upon these sacred services, it was thought that the time was both convenient and propitious for the settlement of their legal difficulties.[105]

The authorities are divided as to the exact official hours of the day for holding court. "The Sanhedrin sat from the close of the morning sacrifice to the time of the evening sacrifice," is the language of the Jerusalem Talmud.[106] Mendelsohn says: "The official hours for holding court were between the morning service and noon; but a suit entered upon during the legal hours could be carried on until evening, and civil cases could be continued even after nightfall."[107] But in no case of a criminal nature could the court continue its session during the night.[108]

The Minor Sanhedrins in the provinces, as well as the local Courts of Three, usually held their sessions in the most public place, that is, at the city gate. The two Minor Sanhedrins of Jerusalem held their sessions at the entrance to the Temple-mound and to the woman's department respectively. The Great Sanhedrin convened in an apartment of the national temple at Jerusalem, known as the _Lishkath haggazith_. This apartment was the celebrated "Hall of Hewn Stones."[109]

_Recruitments._--The young Hebrew disciple who possessed the necessary mental, spiritual, and personal qualifications for judicial honors was styled Haber, which means a.s.sociate, fellow.[110] Such a disciple was first solemnly ordained and received the t.i.tle of Zaken (elder) or Rabbi. This t.i.tle rendered him eligible to membership in the different courts. But that he might acquire necessary experience for membership in the Great Sanhedrin and became a sage worthy of Israel, he was required to begin at the lowest rung of the judicial ladder and work gradually to the top. He was first appointed by the Great Sanhedrin to a place in one of the local courts, consisting of three members; he then served as a member of one of the provincial Sanhedrins; was then promoted to the first, and afterwards to the second Minor Sanhedrin at Jerusalem; and was elevated finally to the Great Sanhedrin itself.[111] After this manner, all the courts of the ancient Hebrews were recruited and replenished from time to time; the young aspirant to judicial favors beginning in the local Court of Three and rising by successive steps to the Great Sanhedrin at Jerusalem.

The exact method of filling vacancies and thus replenishing the membership of the Great Sanhedrin is not certainly known.[112] The following extract from the Talmud, however, is thought to be authoritative:

In front of them (the judges of the Great Sanhedrin) sat three rows of learned disciples; each of them had his own special place.

Should it be necessary to promote one of them to the office of judge, one of those in the foremost row was selected. His place was then supplied by one in the second row, while one from the third was in turn advanced to the second. This being done, someone was then chosen from the congregation to supply the vacancy thus created in the third row. But the person so appointed did not step directly into the place occupied by the one last promoted from the third row, but into the place that beseemed one who was only newly admitted.[113]

_Quorum of the Great Sanhedrin._--Twenty-three members const.i.tuted a quorum of the Great Sanhedrin. This was the full number of the membership of a Minor Sanhedrin.

_Number of Votes Required to Convict._--"In criminal trials a majority of one vote is sufficient for an acquittal; but for a condemnation a majority of two is necessary," is the language of the Mishna.[114] The full membership of the Great Sanhedrin was seventy-one. A condemnation by thirty-five acquitted the accused; a condemnation by thirty-six also acquitted. At least thirty-seven votes were needed to convict. If a bare quorum was present, at least thirteen votes were necessary to condemn.

A very peculiar rule of Hebrew law provided that "a simultaneous and unanimous verdict of guilty rendered on the day of trial, had the effect of an acquittal."[115] Such a verdict was considered to be lacking in the element of mercy, and was thought to result more from conspiracy and mob violence than from mature judicial deliberation.

_Jurisdiction of the Great Sanhedrin._--The jurisdiction of the Great Sanhedrin is briefly and concisely stated in the Mishna:

_The judgement of the seventy-one is besought when the affair concerns a whole tribe or is regarding a false prophet or the high-priest; when it is a question whether war shall be declared or not; when it has for its object the enlargement of Jerusalem or its suburbs; whether tribunals of twenty-three shall be inst.i.tuted in the provinces, or to declare that a town has become defiled, and to place it under ban of excommunication.[116]_

Edward Gibbon has also defined the jurisdiction of the same court as follows:

_With regard to civil objects, it was the supreme court of appeal; with regard to criminal matters, a tribunal const.i.tuted for the trial of all offences that were committed by men in any public station, or that affected the peace and majesty of the people. Its most frequent and serious occupation was the exercise of judicial power. As a council of state and as a court of justice, it possessed many prerogatives. Every power was derived from its authority, every law was ratified by its sanction._

The Great Sanhedrin possessed all the powers and attributes of a national parliament and a supreme court of judicature. It corresponded to the Areopagus of Athens and to the senate of Rome. It took cognizance of the misconduct of priests and kings. Josephus tells us that Herod the Great was arraigned as a criminal before its judges, and that King Hyrca.n.u.s himself obeyed its mandates and decrees.

_Appeals._--Appeals were allowed from a Minor Sanhedrin to the Great Sanhedrin. But there was no appeal from a mandate, judgment, or decree of the Great Sanhedrin. "Its authority was supreme in all matters; civil and political, social, religious, and criminal."

It is believed that enough has been said touching the character, organization, and jurisdiction of the supreme tribunal of the ancient Hebrews to satisfy the average reader. Indeed, it may be that this limit has been exceeded. The remainder of this chapter will be devoted to a short review of the Minor Sanhedrins and the Courts of Three.

_Minor Sanhedrins._--There was no fixed number of Minor Sanhedrins for the administration of Justice in the Hebrew Commonwealth. Wherever and whenever, in any town or city inhabited by at least one hundred and twenty families, the people desired a Sanhedrin of three-and-twenty members, such a tribunal was established. For this purpose, an application was made to the Great Sanhedrin at Jerusalem, which dispatched a mandate to the town ordering the residents to a.s.semble and to nominate from among themselves persons qualified to act as judges.

The electors were expected to bear in mind the qualifications that would fit a judge for membership in the Great Sanhedrin, to which all local judges might eventually be elevated. Accordingly, only "good men and true" were chosen at the town ma.s.s meeting. Immediately upon receipt of the return to the mandate, an authorization was sent back from Jerusalem to the town or city which confirmed the election and const.i.tuted the judges selected a Sanhedrin of three-and-twenty members.[117]

_Jurisdiction of the Minor Sanhedrins._--The jurisdiction of the Minor Sanhedrins extended to nearly all criminal cases involving imprisonment or seclusion for life, internment in a city of refuge, and capital punishment. Adultery, seduction, blasphemy, incest, manslaughter, and murder belonged to these different cla.s.ses. This court condemned an ox to be butchered that had gored a man to death. The condemnation proceedings were something in the nature of a trial of the beast; and the owner was severely fined where the evidence proved that he knew the vicious disposition and habits of the animal. The deliberations at the trial of the bull were most careful and solemn, since the value of a human life was involved in the proceedings and had to be estimated in the judgment.

Besides jurisdiction in criminal matters, the Sanhedrins of three-and-twenty members performed certain civil functions. They were the tax boards of the various provinces. They const.i.tuted the regular agencies of government for the distribution of public charity. The management and administration of public elementary schools were under their control. The legal standards of weights and measures were inspected by them and received their seals. Sanitary regulations, repairing the defenses of walled cities, and maintaining the public highways in good condition, were among the duties of the Minor Sanhedrins.

The qualifications of judges of these courts were the same as those required for membership in the Great Sanhedrin. This was true because the judges of the provincial courts might be promoted to the supreme tribunal at Jerusalem. The Minor Sanhedrins might be very aptly described as the _nisi prius_ courts of the Commonwealth of Israel. It was in these courts of three-and-twenty members that the bulk of Hebrew litigation was disposed of. It seems that, though equal in number, they were not all regarded as equal in learning or authority. It is distinctly stated that appeals could be taken from one Minor Sanhedrin to another "deemed of superior authority."[118] The difference was probably due to the fact that in the larger towns were located colleges and schools, some of whose professors were doubtless either advisers or members of the local Sanhedrin. At any rate, when a difficult question, civil or criminal, could not be determined, for want of an authoritative and registered decision, by an ordinary Sanhedrin of three-and-twenty judges, the matter was referred to the nearest neighboring Sanhedrin thought to be of greater repute. If no authentic tradition offering a solution of the litigated question was in the possession of the Sanhedrin to which appeal had been taken, the matter was then referred to the first Minor Sanhedrin in Jerusalem which sat in the Har-habaith.

If the judges of this court were themselves without precedent touching upon the litigated proposition, it was still further referred to the second Minor Sanhedrin of Jerusalem, located in the Azarah. If, again, this Court was without the necessary tradition that would enable it to decide the question, the matter was finally brought before the Great Sanhedrin. If this august tribunal was without precedent and tradition that would enable its members to dispose of the question according to adjudicated cases, they then decided, nevertheless, in accordance with the sentiments and principles of natural justice.

It should be remembered that of the Minor Sanhedrins to which every town of one hundred and twenty families was ent.i.tled, two sat at Jerusalem.

It was left optional with a litigant from the provinces to appeal to the local Sanhedrin or to one of the Minor Sanhedrins in Jerusalem. Local bias or prejudice was thus avoided.

_Lower Tribunals._--The lowest order of Hebrew tribunal was the Court of Three, composed of judges selected by the litigants themselves. The plaintiff chose one member, the defendant selected another, and these two chose a third. A majority opinion decided all questions. In the later years of Jewish nationality, it was thought best to have at least one authorized jurist (mumcha) in the Court of Three. This particular judge was probably an appointee of the Great Sanhedrin from among the young disciples (Zaken or Rabbis). This appointment was doubtless intended to give repute to the local court and experience to the legal aspirant, as well as to furnish a possible recruit to the Great Sanhedrin.[119]

These courts corresponded very nearly to the modern courts of Justices of the Peace. Their jurisdiction extended to civil matters of small importance and to petty criminal offenses. They were not permanent, being more in the nature of referees or arbitrators, and sat only when occasion required. Their sessions were public and were held in the open air under trees, or at the city gate.

Thus much for the judicial system of courts and judges among the ancient Hebrews. It was simple in the extreme, democratic to the core, and seems to have been thoroughly reliable and effective. It was founded upon universal suffrage, subject only to the general supervision and occasional appointments of the Great Sanhedrin. The judges were ever in touch with the sympathies and the best interests of the people.

_Peculiarities of the Hebrew System._--Certain very striking peculiarities marked the Hebrew system:

(1) There were no lawyers or advocates. These judicial disputants have been known to every other system of enlightened jurisprudence. But there were no Ciceros, Erskines, Choates among the ancient Hebrews. The judges were the defenders as well as the judges of the accused. It may be easily read between the lines that the framers and builders of the Hebrew judicial system regarded paid advocates as an abomination and a nuisance. King Ferdinand, of Spain, seems to have had the Hebrew notion when, more than a thousand years after Jerusalem fell, he sent out colonists to the West Indies, with special instructions "that no lawyers should be carried along, lest lawsuits should become ordinary occurrences in the New World."[120] Ferdinand evidently agreed with Plato that lawyers are the plague of the community.[121]

(2) There was no secret body, with the accusatory functions of the modern Grand Jury, connected with the ancient Hebrew judicial system.

The witnesses were the accusers, and their testimony const.i.tuted both the indictment and the evidence.

(3) There were no public prosecutors or State's attorneys known to the Hebrew system. Here, again, the witnesses were the informants, prosecutors, and, in capital cases, executioners of the accused.

(4) No court, among the ancient Hebrews, could consist of a single judge. Three was the number of the lowest court; three-and-twenty, of the next highest; and seventy-one, of the Great Sanhedrin at Jerusalem.

A single intelligence acting judicially would have been regarded as a usurpation of divine prerogative. The basis of this peculiar Hebrew notion is a single sentence from the Pirke Aboth, iv. 8: "Be not a sole judge, for there is no sole judge but One."[122]