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THE POPULAR SCIENCE MONTHLY.— SUPPLEMENT. 



of all portions of a book which was not finally 

 reduced to writing until two centuries had passed. 

 But the evidence shows that the development of 

 the Mishna in this special direction was excep- 

 tionally early and strong. Its earliest period co- 

 incided with the time of " the Men of the Great 

 Synagogue," stretching from the return from the 

 captivity to about b. c. 220. Their work has 

 been summed up in the leading aphorism of the 

 " Pirke Avoth," which runs, " Be cautious and 

 slow in judgment, send forth many disciples, and 

 make a fence round the law." ' And this age, 

 which inculcated caution in judicial action be- 

 fore all other things, was succeeded by the so- 

 called age of " the Sanhedrim," which for the 

 next four hundred years worked out that caution 

 in detail. In nothing is the Mishna more ex- 

 press that in the contrast recognized at this early 

 time between civil and criminal proceedings — 

 judgments " of money" and judgments "of the 

 life." Even with regard to the former, their 

 rules strike the modern legal mind as leaniu"- to 

 the side of pedantic caution. But with regard 

 to criminal, and especially to capital cases, there 

 can be no doubt that long before the time of 

 Jesus the value set by the law upon the life of a 

 Hebrew citizen had led to extraordinary precau- 

 tions. What have been called the four great 

 rules of their criminal jurisprudence — "strict- 

 ness in the accusation, publicity in the discus- 

 sion, full freedom granted to the accused, and 

 assurance against all dangers or errors of tes- 

 timony " 2 — are carried out even in the Mishna 

 in minute and scrupulous rules, leaning almost 

 ostentatiously in every point to the side of the 

 accused, and having force most of all in the case 

 of a trial for life. Indeed, so far does this go, 

 that modern Jews have been disposed to rep- 

 resent capital punishment as abhorrent to the 

 whole genius of Hebrew jurisprudence. We 

 read in the oral law the saying of Eleazar the 

 son of Azarias, that " the Sanhedrim, which so 

 often as once in seven years condemns a man to 

 death, is a slaughter-house." 3 And more star- 

 tling still, when we remember the Hebrew dread 

 of all anthropomorphism in speaking of the 

 Divine, is that terrible sentence of Rabbi Meir: 

 " What doth God say (if one may speak of .God 

 after the manner of men) when a malefactor suf- 



1 Mishna, "Capita Patram," i., 1. The same prece- 

 dence is observed in the chief sayincr of their great repre- 

 sentative, Simon the Just— "On three things stands the 

 world — on law, on worship, and on charity." — Cup. Pa- 

 trum, i., 2. 



2 Salvador, " Inst, de Moise." i.. 3(35. 



3 Mishna, " Treatise Makhoth." 



fers the anguish due to his crime. He says, My 

 head and my limbs are pained. And if he so 

 speaks of the suffering of the guilty, what must 

 he utter when the righteous is condemned ? " ' 

 And so, to save the innocent blood, to hedge 

 round and shelter the sacred house of life, rule 

 after rule was laid down in successive lines of 

 circumvallation, and presumptions in favor of the 

 accused were accumulated, until a false convic- 

 tion became almost impossible. 



The question whether the Hebrew trial was 

 according to their own rules of law has perhaps 

 not been exhaustively considered by any one 

 writer, though it has been touched upon by 

 many. The most celebrated discussion upon it 

 was raised by a learned Spanish Jew, M. Salva- 

 dor, who in 1822, in the first edition of a work 

 since twice republished under the title of " His- 

 toire des Institutions de Moise," 2 gave two excel- 

 lent chapters on the penal law of the later Jews 

 and on their administration of justice, and fol- 

 lowed them up by a dissertation to show that 

 the Jugement de Jesus was according to law. He 

 admitted the facts as stated in the gospels, and 

 founded on the law as stated in the Mishna ; and 

 from these sources professed to prove that, while 

 the result may have been unfortunate if Jesus 

 was really the Messiah, the process followed and 

 the result arrived at were alike necessary, if the 

 tribunal adhered to its own law. Salvador was 

 answered in a brilliant treatise by a distinguished 

 member of the French bar, M. Dupin (aine). He, 

 however (like an able American writer, Mr. Green- 

 leaf), devoted himself rather to the substantial 

 injustice of the trial than to its form according 

 to the jurisprudence concerned ; and in the third 

 edition of his "Institutions," published in 1862, 

 Salvador maintains and reprints the whole posi- 

 tions originally laid down. His argument falls 

 short, however, on the most essential points so 

 obviously that it cannot be made the basis of 

 discussion. I propose, therefore, to treat the 

 question anew, going directly to the sources of 

 fact and law, and referring occasionally to Salva- 

 dor as to other writers. 



On a Thursday night in that month of March, 

 the Thursday toward the end of the passover 

 week, unquestionably took place the arrest — the 

 first step before most modern trials. The ques- 

 tion has been raised whether the arrest was legal. 

 There is no reason to doubt that it was by au- 



1 Mishna, "De Synedriis," vi., 5. 



2 The third edition, in two volumes (Michel L6vy 

 Freres, Paris), is that here quoted. 





