Who Moved the Stone? 2. The Real Case Against the Prisoner

      In attempting to unravel the tangled skein of passions, prejudices, and political intrigues with which the last days of Jesus are interwoven, it has always seemed to me a sound principle to go straight to the heart of the mystery by studying closely the nature of the charge brought against Him.

      I remember this aspect of the question coming home to me one morning with new and unexpected force. I tried to picture to myself what would happen if some two thousand years hence a great controversy should arise about one who was the center of a criminal trial, say, in 1922. By that time most of the essential documents would have passed into oblivion. An old faded cutting of The Times or Telegraph, or perhaps some tattered fragment of a legal book describing the case, might have survived to reach the collection of an antiquary. From these and other fragments the necessary conclusions would have to be drawn. Is it not certain that people living in that far-off day, and desiring to get at the real truth about the man concerned, would go first to the crucial question of the charge on which he was arraigned? They would say: "What was all the trouble about? What did his accusers say and bring against him?" If, as in the present instance, several charges appear to have been preferred, they would ask what was the real case against the prisoner.

      As soon as we set this question in the forefront of our inquiry, certain things emerge that throw new and unexpected light on the problem. It will help us to an understanding of what these significant things are if we consider first the very singular character of the trial itself. For not only did it take place at an unprecedented hour for such proceedings, but it was marked throughout by peculiarities of a special kind. Consider in the first instance the vital element of time.

      All the historians agree that the arrest of Jesus took place in the Garden of Gethsemane at a late hour on the evening immediately preceding the day of the Crucifixion, and there is strong justification for believing that it could not possibly have been earlier than eleven-thirty.

      This estimate is based on the amount of time required by the recorded events between the breaking up of the Supper party, probably in a house in the upper city, and the arrival of the armed band in the Garden at the foot of Olivet. There are three things that point irresistibly to the hour being late:

      1. The disciples were manifestly tired, and even the sturdy fisherman Peter, accustomed to lonely vigils on the deep, could not keep awake.

      2. Both Matthew and Mark refer to three separate periods of slumber, broken by the periodical return of Christ from His prolonged communing under the neighboring trees.

      3. The fact that it was dark, and that owing to the use of torches, Christ was able to discern the approach of the arrest party a considerable distance off (see Mark 14:42: "Arise, let us be going: behold, he that betrayeth me is at hand").

      No one can read the records of this extraordinary episode without realizing that this particular sojourn in the garden was different from any of those previous visits to the same spot hinted at by John. These men were being held there by the will of Christ long after the time when they would ordinarily have been in their beds at Bethany. They were waiting at His bidding for something for which He also was waiting, and which was an unconscionably long time in coming. Assuming the supper to have been over at nine-thirty and the garden itself reached as early as 10 p. m., the arrest could hardly have been effected much before eleven-thirty. This fixes for us with some certainty the hour of the preliminary trial.

      It is generally agreed by archaeologists and students of the topography of ancient Jerusalem that an old flight of steps descended from the upper city to the gate leading to the pool of Siloam at the south-eastern angle of the city wall. Nehemiah mentions "the stairs that go down from the city of David" (3:15); and again, he says, "By the fountain gate, and straight before them, they went up by the stairs of the city of David, at the going up of the wall" (12:37).

      There were thus two routes open to the arrest party. One was to follow the course of the Kidron Valley to the foot of these steps, and thence to the high priest's house. The other was to take the main Bethany road into the new town and thence by the Tyropean Valley to the priestly quarter. Even if tradition had not strongly indicated the former, it is clear that to have conducted Jesus through the populous quarter of the lower city would not only have been inexpedient, but would have necessitated a detour by which valuable time would have been lost. And in this strange nocturnal business time was a very important factor.

      If, therefore, by some magic reversal of the centuries we could have stood at some vantage point in old Jerusalem about midnight or shortly afterwards on that memorable 14th of Nisan, we should probably have witnessed a small party of men leading a strangely unresisting figure through the darkness, along the rocky defile that skirted the precipitous eastern face of the temple wall, up the historic causeway at the southeastern angle of the city wall to the headquarters of His avowed and inveterate enemies.

      How did it come about that the most distinguished Hebrew of His generation found Himself in this dangerous and menacing situation, in the dead of night, on the eve of one of the most solemn of the Jewish festivals? What were the secret and hidden forces that precipitated His arrest? Why was this particular and highly inconvenient moment chosen? Above all, what was the gravamen of the charge brought against Him?

      It will require much more than this chapter to answer these questions, to which indeed the whole book is a very partial and inadequate reply. But two things stand out sharply from the records of this trial and call for the closest study. The first is the peculiar nature of the only definite charge brought against Jesus. The second is the admission upon which His conviction was based.

      Now it seems to me that we make a grievous mistake if we assume (as has so often been done by Christian writers) that everything the priests did that night was ultra vires and illegal. Of course, there are aspects of the affair that, on any reading of the case, must be considered definitely, and even flagrantly, to be at variance with Jewish law. That, I think, is conceded by every competent student of the Mishna and of Jewish institutions as they existed at the time.

      It was illegal, for example, for the temple guard, acting officially as the instrument of the high priest, to effect the arrest. That should have been left to the voluntary action of the witnesses. It was illegal to try a capital charge (trial for life) by night. Only "trials for money" could be conducted after sunset. It was illegal, after the testimony of the witnesses had broken down, for the judges to cross-examine the Prisoner. They should have acquitted Him, and if the testimony given was demonstrably false, the witnesses should have been sentenced to death by stoning.

      These things lie on the surface of the situation. But beneath these flagrant instances of irregularity in the trial of Jesus, there runs a strong undercurrent of legality -- an almost meticulous observance of certain minor points of the law -- which is very illuminating and instructive to the impartial student of history.

      This fact emerges very strikingly if we study the singular way in which the very ground of the accusation shifted during the course of the trial. As everyone who has attentively studied the records knows, there were in all three main charges brought against Jesus during the course of the successive phases of the trial. We may summarize them briefly as follows:

      1. He had threatened to destroy the temple.

      2. He had claimed to be the Son of God.

      3. He had stirred up the people against Caesar. 16 The Real Case Against the Prisoner

      The third of these charges can be dismissed from our consideration at once. It was not the real grievance of the Jews. It was framed solely for political ends. The Roman law took no cognizance of the offenses for which Christ was condemned to death, yet without Pilate the death could not be consummated. It was absolutely necessary, therefore, to find a political charge to justify before the Roman procurator the extreme penalty they had already tacitly imposed. They chose the charge of conspiracy against Caesar because it was the only kind of charge that would carry weight with Pontius Pilate, or indeed with any representative of the Roman power. Even that almost failed, and would have failed completely, had the procuratorship been in stronger hands.

      But, as I have said above, it does not matter what the ostensible charge before Pilate was. The thing we are concerned with very deeply is what the real charge of the Jews was against Christ. When we concentrate on this we get an extraordinarily luminous view of what was behind the prosecution.

      It must be remembered that, according to a long-estalished Hebrew custom, the accusers in a Jewish criminal trial were the witnesses. No other form of prosecution was legal, and the first clearly defined act in the midnight drama, after the Prisoner had been brought before the court, was the calling of witnesses, as the law demanded. Both Matthew and Mark are explicit on this point.

      Mark says: "Many bare false witness against him" (14:56).

      Matthew says: "Many false witnesses came" (26:60).

      Mark affirms that the evidence of these witnesses did not "agree together" and was therefore overthrown.

      To those unfamiliar with the subtleties of Jewish jurisprudence, and especially with the singular orientation of the law in favor of the prisoner, it may seem curious that, having been at considerable pains to secure witnesses for the prosecution, the court should have proceeded forthwith to reject the evidence. If the story of the witnesses was a deliberate fabrication, it should not have been very difficult to have harmonized it in advance, or, in the ancient phraseology, to have made it "agree together." The very fact that the court did reject the testimony proves that in this fundamental matter of the witnesses even Caiaphas himself was under some compelling necessity to follow the traditional and characteristic Hebrew usage in a "trial for life."

      What that usage was is described for us with great wealth of detail in the Mishna. There were three classes of testimony recognized by the law:

      1. A vain testimony.

      2. A standing testimony.

      3. An adequate testimony.

      There was a very practical distinction between these three classes of evidence. A "vain testimony" was testimony obviously irrelevant or worthless and immediately recognized by the judges as such. A "standing testimony" was evidence of a more serious kind to be accepted provisionally, until confirmed or otherwise. An "adequate testimony" was evidence in which the witnesses "agreed together." "The least discordance between the evidence of witnesses," says the distinguished Jewish writer, Salvador, "was held to destroy its value."

      It is clear, therefore, that whatever may have been the subject-matter of the preliminary witnesses referred to by the two evangelists, it did not get beyond the second and provisional stage. This can only mean that it was either demonstrably contrary to the experience and knowledge of the Court, or it was invalidated on technical grounds. Mark's statement that it did not "agree together" strongly indicates the latter.

      But now comes a very curious thing. When this preliminary and unsatisfactory witness had been cleared away, two men came forward with a very definite and circumstantial piece of evidence.

      Mark says:

      There stood up certain, and bare false witness against him, saying, We heard him say, I will destroy this temple that is made with hands, and in three days I will build another made without hands (14:57, 58).

      Matthew, who in this case is probably not quoting Mark, but drawing upon another ancient source, confirms it by saying:

      But afterward came two, and said, This man said, l am able to destroy the temple of God and to build it in three days (26:61, 62).

      Whatever else took place, therefore, on that memorable night, it seems certain that two men came forward and, with the torch-light falling full on the face of Christ, accused Him of having used words similar to these. That is a very important fact, and I will ask the reader to keep it in mind for a few moments.

      Now the thing of immediate importance is to know whether these men were deliberately inventing the charge or were merely perverting for their own purpose an actual and somewhat similar saying of Christ. Even if no other data were available, I should personally hesitate to believe that so definite and circumstantial a statement was a pure invention. It is a much more deadly thing to distort what a man has said in the hearing of others than to lie deliberately about him. The distortion will elicit uproarious support from overwrought and angry men. Only the most brazen will voice approval of a deliberate and calculated lie. It always has been so, and we can be reasonably sure that it was so in this case. These men had heard Christ make a resounding statement in the temple courts, and there was no more deadly thing they could do than to give a distorted and misleading version of it at His trial.

      But there is another, and, to me, a very conclusive reason why we may regard the testimony of these witnesses as a reflex of something Christ Himself actually said on some public occasion. Both men declared that they had heard the Prisoner use certain words that, if substantiated, involved the double offense of sorcery and sacrilege. The penalty for sorcery was death. The penalty for sacrilege was stoning and exposure of the body. From the standpoint of the enemies of Jesus a more fatal charge could hardly have been laid to His account. Even so, the testimony was overthrown.

      Now why was that? There must be a satisfactory and historical explanation, lithe testimony of these two men had been an absolute invention; if it had originated in the scheming brain of Caiaphas, and the witnesses had, so to say, been "put up" to play their part, there would surely have been no bungling of the affair in this naïve and exasperating way. After all, the witnesses had only a few words to say, and the most elementary sort of prudence would have secured their agreement in advance. The case against Christ ought to have gone swiftly and triumphantly to a conviction.

      But we do not find that kind of situation at all. We find a situation in which the court, despite the illegality of its being in session at this very late hour, wasted a great deal of precious time on a judicial process that carried it nowhere. At the end of all this elaborate hearing of witnesses Jesus Christ was virtually uncaused, and certainly unconvicted. The entire proceedings threatened to break down on a vital point of Jewish law.

      Two things emerge from this unquestionably historic fact. In the first place, Caiaphas was clearly not all-powerful to work his will in that assembly. There were evidently very strong influences in the council chamber in favor of a rigorous observance of the law, particularly in the crucial matter of the witnesses. It must always be remembered that the judgment of this tribunal was not final. Whatever these men did that night had to pass muster the next morning before the great Sanhedrin in plenary sifting. There had apparently been trouble once before when Nicodemus, a member of that body, had protested against condemnation without a fair hearing. They could justify the illegality of the night hearing of the case on the grounds of high political necessity and the near approach of the Feast. But any serious flaw in the accusation might easily have led to the compulsory release of the Prisoner at a moment when immense multitudes would unquestionably have flocked to His side.

      The very fact, too, that the testimony was being sifted so rigorously implies a corresponding cautiousness of statement by the witnesses themselves. Under the Jewish system of jurisprudence, weighted as it undoubtedly was to lean in favor of the accused, it was a very dangerous thing to be a witness in a "trial for life." The penalty for uttering a false testimony was death. Hence the number of these trials was few.

      But the really impressive inference from all these singular proceedings is surely this: If the testimony was not preconcerted; if its disagreement both surprised and exasperated the high priest, it is clear that it was at least bona fide testimony, and bore some definite relation to the facts. Thus, even if the writer of John's Gospel had not preserved for us what we may call the "official" version of what took place in the temple courts, we should be compelled to believe that Jesus did upon some historical occasion use some words closely resembling those with which He was charged.

      What was the historic utterance that lay behind this charge? What did Jesus really say to give rise to these circumstantial statements? There are three versions from which we may choose. According to Mark's "witness," Jesus deliberately threatened to destroy the temple and to replace it magically in three days. The words are very explicit:

      I will destroy this temple that is made with hands, and in three days I will build another made without hands (14:57, 58).

      Matthew's witness modifies and softens the accusation considerably. The suggestion of the magical replacement of the temple is still there, but Christ is represented as only claiming the power to do this:

      This man said, tamable to destroy the temple of God, and to build it in three days (26:61, 62).

      Can we, in the absence of a more authentic version of what the original utterance was, accept either of these statements as the true one? Surely we cannot without doing violence to the whole Synoptic impression of the historic Jesus. For consider their import. Jesus is made to say that, of His own power and volition, He could pull down the temple of Herod, or cause it to fall down or disappear, and replace it by another. Such a claim could, of course, be validated only by the exercise 'of supernormal or magical powers beyond anything ever asserted of Christ and beyond the wildest dreams of the most deluded disciple of Eastern necromancy. Indeed, we may say that no really sane person, especially one of the spiritual and moral category to which Christ belongs, would make a statement of this particular sort.

      We can imagine some fanatical and half-willed person, whose whole mentality bordered on the insane, throwing out this preposterous boast in a sudden access of frenzy, knowing full well that he would never be called upon to justify it. But the Prisoner in this trial does not come within that definition. He does not come within a thousand miles of it. In all His story there is no trace of those characteristics that are the hallmark of the unstable mind. On the other hand, there are many indications of the high sanity that accompanies a firmly disciplined mind. He seems to have been supremely a lover of truth and sincerity, and the inner humility that is man's greatest claim to kinship with God; He was a great hater of shams and hypocrisies and futile boasts.

      The version of two witnesses, therefore, must at least be held suspect until we have corroborative testimony of the most emphatic kind. But the evidence at our disposal points in quite a different direction. According to John, what Jesus really did say was: "Destroy this temple, and in three days I will raise it up." And the writer adds parenthetically: "But he spake of the temple of his body" (2:19,21).

      Of course, no serious student of this problem will deny for a moment that this is a difficult saying, whatever interpretation is put on it. But if we are to decide between three divergent and contradictory readings, I am bound to say that there is one thing that impresses me profoundly the fact that the words "in three days" are found in them all. I do not think that the immense weight of that circumstance has been fully realized.

      In ordinary life, when confronted with several divergent accounts of a given happening, it is a sound and consistent rule to examine first the points on which the narrators are agreed. The presumption that such points of agreement represent something solid and original is very strong. Particularly is this the case when the witnesses come, as it were, from opposite camps and are in marked disagreement on other essential features of the case.

      Now the peculiarity of the phrase "in three days" lies in the fact that it occurs very rarely in the recorded teaching of Christ, and then only in circumstances that have seemed to many critics to present grave doubts as to the authenticity of the passages in question. Take, for example, the three outstanding instances occurring in the Gospel of Mark:

      8:31 And he began to teach them, that the Son of man must suffer many things, and be rejected by the elders, and the chief priests, and the scribes, and be killed, and after three days rise again.

      9:31: For he taught his disciples, and said unto them, The Son of man is delivered up into the hands of men, and they shall kill him; and when he is killed, after three days he shall rise again.

      10:33: Behold, we go up to Jerusalem; and the Son of man shall be delivered unto the chief priests and the scribes; and they shall condemn him to death, and shall deliver him unto the Gentiles: and they shall mock him, and shall spit upon him, and shall scourge him, and shall kill him; and after three days he shall rise again.

      The modern reader, coming to these passages with a certain instinctive reluctance to accept anything that transcends the field of normal experience is inclined to say, "I can understand Jesus predicting His own death. He must have foreseen what was the probable outcome of the ever-widening gap between Himself and the priests, and I think it is not unlikely that He may have prepared the disciples privately for the event. But surely these direct references to His rising from the dead can have been written only after His death and are not an integral part of the original utterances."

      Let us admit frankly that it does look like that at first sight. However, when we come to examine closely the minutes of this trial with all its primitive marks of authenticity, its meticulous and, in the end, fruitless hearing of hostile witnesses, we make the startling discovery that these very words ("in three days"), which reason asserts could never have been uttered by Christ, are precisely the words that according to all the witnesses formed the pith and core of the fatal and historic sentence with which He was charged. It would have been a strange coincidence indeed if the one sentence chosen by the enemies of Christ on which to base the most deadly charge they could bring against Him found no counterpart or parallel whatever in all the varied teaching of the two preceding years.

      What, then, do we find? We find the Prisoner accused of making a claim so fantastic and absurd that, even if His judges had not rejected the testimony, we should have had to receive it with the gravest possible doubt. Yet from the very texture of the circumstances there seems to emerge the fact that what He probably did say was more extraordinary still.

      He said in effect: "If you kill me, I will rise again from the grave." I see no escape from the logic of that conclusion. We may hold that He was mistaken, that He was held by some strange mental obsession that periodically flashed out in His public utterance. But that He said this singular and almost unbelievable thing seems to me to be very nearly beyond the possibility of doubt.

      But we have still to consider the other outstanding feature of this remarkable trial. Jesus of Nazareth was condemned to death, not on the statements of His accusers, but on an admission extorted from Him under oath.

      It is clear that after the hearing of the witnesses, and the final rejection of their testimony, the whole conduct of the case began to take an unquestionably illegal form. The illegality consisted in the president of the court attempting to supply, by direct questioning of the Prisoner, the necessary grounds for a conviction that the witnesses themselves had been unable to produce.

      This was, of course, directly contrary both to the letter and the spirit of the elaborate judicial code by which the Jewish law sought to protect the life of the citizen. The power of accusation in a Hebrew "trial for life" was vested solely in the witnesses. It was their business to effect the arrest and to bring the accused man to the court. It was the duty of the court to protect the interests of the prisoner in every possible way, while seeking to arrive at a just and impartial judgment on the evidence submitted.

      That this judicial protection was not extended to the Prisoner in the present case is clear from even a superficial reading of the narrative. It comes out in the tone of marked exasperation with which the high priest addressed the Prisoner when the last of the long line of testimonies had broken down.

      Answerest thou nothing? What is it which these witness against thee? (Mark 14:60).

      In itself this question was perhaps not objectionable. As an accused man Christ undoubtedly had the right to bring forward any facts or explanations in His defense. Hitherto He had maintained complete silence. It was appropriate that He should be asked if He had anything to say bearing on the evidence. It is the unveiled hostility to the Prisoner that is so significant and that instinctively warns us of what is to follow. For, in the next moment, the high priest seems to have thrown all pretense at legality to the winds.

      Standing in his place, in the center of the tribunal, Caiaphas applied to Christ the most solemn form of oath known to the Hebrew Constitution, the famous Oath of the Testimony: "I adjure thee by the living God" (Matt. 26:63). To this, Christ, as a pious and law-abiding Jew, had no alternative but to answer.

      If [says the Mishna] one shall say, I adjure you by the Almighty, by Sabaoth, by the Gracious and Merciful, by the Long-suffering, by the Compassionate, or by any of the Divine titles, behold they are bound to answer.

      Stripped of the peculiar phraseology with which the Hebrew mind of the period invested the conception of the Messiah, the question Caiaphas, the high priest, put to Jesus was a direct and simple one:

      'Art thou the Christ? Dost thou claim to be He that shall come?' (Mark 14:61).

      The reply of the Prisoner was not less direct. Here are the three versions:

      I am (Mark 14:62).

      Thou hast said (Matt. 26:64).

      Ye say that I am (Luke 22:70).

      As Mr. Baring-Gould has pointed out, these answers are really identical. The formula "Thou hast said" or "Ye say that I am," which to modem ears sounds evasive, had no such connotation to the contemporary Jewish mind. "Thou sayest" was the traditional form in which a cultivated Jew replied to a question of grave or sad import. Courtesy forbade a direct yes or no.

      Christ therefore said this very considerable thing with great definiteness and emphasis. The satisfaction of Caiaphas at obtaining by a single stroke this tremendous and (from the Prisoner's standpoint) very dangerous confession is obvious. One can almost hear the ring of triumph in his voice as he swung round upon the assembled rabbis and exclaimed:

      What further need have we of witnesses? Ye have heard the blasphemy: what think ye? (Matt. 26:65,66).

      Now to the student whose mind is alert for what I may call the submerged facts of the story, this sudden rising of the case to its dramatic climax is full of interest.

      Why did the trial suddenly take this pronouncedly unconstitutional form at a relatively late hour in the proceedings, after much valuable time had been occupied in sifting the evidence of the witnesses? If the compulsory affirmation of the Prisoner was sufficient to secure conviction, why were the witnesses heard at all?

      The answer to these questions lies undoubtedly in the peculiar nature of the tactical and judicial problem that confronted Caiaphas. That the powerful Sadducean family to which the high priest belonged had fully determined to get Jesus out of the way is obvious, and nothing but the death penalty would satisfy them. Yet, strangely enough, even an indisputably proven case of blasphemy or sorcery was not sufficient. Caiaphas had to look beyond the purists of the Sanhedrin and the provisions of the Mosaic law to that far more formidable barrier, the power and tolerance of Rome.

      None knew better than Caiaphas what were the personal and political consequences of the coming of the real Messiah in the flesh. That it involved some definite kind of kingship, with Jerusalem and the holy places as its court, is obvious. It involved, further, an immediate and bloody clash with the Roman garrisons throughout the land. It meant a vast uprising of the people and the certainty of a punitive expedition, led by a Roman leader of resource, such as that which forty years later laid the city in ruins.

      All these things belong to the broad outlines of a situation as inevitable as that night follows day. These facts could not have escaped the penetrating eyes of those responsible for the maintenance of the hard-won Jewish privileges under the Roman occupation. Caiaphas, as the acting high priest, made an exceedingly acute observation in political statecraft when he said:

      It is expedient for you that one man should die for the people, and that the whole nation perish not (John 11:50).

      But the personal consequences to Caiaphas and his family were hardly less distasteful. We do not know what changes in the Constitution of the Sanhedrin would have taken place under a truly Messianic regime. They would probably have been very considerable. But one thing is certain: the supreme ascendancy of the high priest, as the arbiter of the national fortunes, would have suffered eclipse. Whatever aspects of its ancient and historic form the Hebrew Constitution might have retained, the real dynast would have been the Messiah. As the national deliverer and the supreme representative of the God of Israel, His right to impose policy and to direct events would have been final and absolute. The prospect of the Nazarene Carpenter stepping into this unique and unparalleled seat of national power must have been profoundly disturbing to certain men (and women) who had an unquestioned interest in the maintenance of the status quo.

      The problem, therefore, was to bring a conclusive case that was not only proof against possible criticism by the Seventy-one, but that also gave undisputable grounds for action under the Roman law.

      In the search for this formula many witnesses were apparently examined and their testimony rejected as insufficient. Then came two witnesses with what seemed to be a particularly promising case. It involved two offenses, each punishable by death under the Hebrew code. Yet here again the same fatal weakness disclosed itself. It might pass the Sanhedrin, but would it pass the Roman procurator? Most assuredly it would not. Something more serious than this apparently idle threat to destroy and rebuild the temple would be necessary to secure the assent of Pilate to a penalty that had been expressly removed by Caesar from sectarian hands.

      The whole prosecution was thus obviously on the point of breaking down when the alert brain of Caiaphas conceived an expedient for saving the situation. It was illegal, but it was the last desperate throw of a man pushed to the very edge of endurance by the miscarriage of his plans. He applied the Oath of the Testimony, to which even silence itself was an unforgivable offense. It succeeded probably beyond his dreams, because in that fearless reply, "I am," there flashed out the long-sought base of the deadliest of all charges before the Roman procurator.

      Caesar might be indifferent to the somewhat eccentric utterances of an itinerant preacher. He could not be indifferent to a claimant for a throne. In the hush of the court as the solemn words of the affirmation fell from the Prisoner's lips, certain other words were probably already forming in the mind of Caiaphas: "If thou lettest this man go, thou/art not Caesar's friend."