Chapter II. Legal Background and Sources of the Record

The Trial of Christ, by David K. Breed, [1948], at sacred-texts.com

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CHAPTER II

LEGAL BACKGROUND AND SOURCES OF THE RECORD

To a Christian Lawyer, the Trial of Christ has a deep significance because we know that the legalistic errors in that trial, condemnable though they be, nevertheless fulfilled prophecy and thereby served a purpose. Theological writers have many works that show how the Old Testament Prophecies were fulfilled in what did take place; indeed, many passages of the Gospel Record are quoted from the Prophets. A further word on this point will be found in our Epilogue, but we limit ourselves, for the present, to the legal phases of the Trial of Christ.

In using the word "trial" in its legalistic sense, the author is not unmindful of the fact that Christ was thrice "tried", or, more properly speaking, tempted by the Devil. However, any study of the trial in the spiritual sense is left to homiletical writings, such as Dr. Clarence Edward Macartney's recent

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book, Trials of Great Men of the Bible, in which Chapters XI and XV deal with the temptations of Christ.

Christian and Jewish people alike in every generation are taught considerable from the Old Testament Scriptures dealing with the Mosaic Law. Those who are not themselves attorneys perhaps little realize that many of the basic principles of modern law go back to ancient roots. At least one modern writer has attempted to prove, for example, that the idea of due process of law expressed in the Fourteenth Amendment to the Constitution of The United States was not an invention of reformers of our Civil War era but rather a recognition in modern law that it is illegal to punish one who has not been duly convicted of crime upon a trial conducted with due deference to the law of evidence. ²

In modern times, Sir William Blackstone, a great British statesman and jurist, wrote that "When civil society is once formed, government at the same time results, of

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course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights and redress their several wrongs." ³ In other words, the function of Government is to give all people security from the encroachment of one another, upon what has been called in our basic American law, "Life, Liberty and the pursuit of Happiness."

To make our point very clear, before proceeding to a further chapter where we will deal in detail with "Reversible Errors," it seems well to emphasize that in modern legal parlance a mistake made by a trial judge is deemed Reversible Error, if the mistake is so serious as to be grounds for a new trial. Glaring examples would be to let a man's partner sit on a jury at his trial; for a Judge to hear a case in which lie is an interested party, or has already formed an opinion; or

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to permit a witness to testify to hearsay instead of facts. These are some of the "Reversible Errors" on which a new trial can be had and are often spoken of by misinformed business men as "technicalities," as when they say a certain gangster "got off on a technicality" or "got a new trial on a technicality."

Before leaving our discussion of legal principles, it seems well to point out that after a Court Reporter has taken down the testimony of a trial in the first instance, upon appeal being taken to a higher court by either party, the higher Court does not again hear the witnesses but passes upon the case upon the typewritten or printed transcription of the notes taken by the Court Reporter. Such notes together with the various formal documents filed by lawyers in the lower court are (as we have written) referred to collectively as "the record on appeal." Although the Court erred in the Trial of Christ by not keeping any records (so far as we know) when at that time court reporters were known to Roman and Hebrew law and custom, ⁴ the record in the

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synoptic Gospels is, however, sufficient to enable us to pass intelligent review, were we an Appellate Court, upon the illegalities of the Trial of Christ.

Footnotes

13:2 Cf., Numbers 35:30: "Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die." See also, White, The Law in the Scriptures, p. 122.

14:3 Commentaries on the Laws of England, (1765) Cooley's 2nd ed., (1876) page 47 (*49) . All editions of Bl. Comm. are star-paged to the original.

15:4 Writing, of course, was common in the first century, A. D., and there have been researches tending p. 16 to show that there were quite detailed court records in those days which have been discovered by Christian Archaeologists; Cf., Rev. Harry Rimmer, Voices from the Silent Centuries, pp. 60, 61, 81, inter alia. St. Paul did a good deal of writing. Cf., on writing in ancient times, William Albright, From the Stone Age to Christianity, pp. 192, 257. On ancient procedure generally, Wigmore, A Panorama of the World's Legal Systems, (Washington Law Book Co.,) 3 vols. 1928, 1 vol. reprint 1936, Chap. III Hebrew Law, and Chap. VII, Roman Law. Edersheim, The Life and Times of Jesus the Messiah, 27th impression, vol. II, p. 555 states that the Sanhedrin customarily had short-hand court-reporters.