eager were they to get Him in their power. With such a disposition prevailing against him in the minds of His judges, Jesus was about to be brought to trial before them. Of course it need not be said, that being thus prejudiced, they were not fit to try him. But the fact of their prejudice, and that notwithstanding it, they sat in judgment upon him, is not singular or unique in the world's history. The fanatical, political and judicial wrongs and murders of every civilization and age, including our own, need not be cited to dispel any expected dissent to this statement. And besides a court is always the sole judge of its own prejudice.. This was no more true of the court which sat more than eighteen hundred years ago in Jerusalem than of the court which tried a looter of the public treasury not a score of years ago in New York.

With the party that arrested Jesus, the fourth gospel alone associates a band of Roman soldiers. xviii, 3, 12. If this statement were accurate, then the arrest would have been by Roman authority, and probably legal and regular. But it is difficult to see how it can be correct. The three earlier gospels make no mention of it, and the Johanine gospel was probably not written earlier than a century and a quarter after Jesus. Besides if Jesus had been arrested by Roman authority, he would have been brought before a Roman tribunal, and would not have been taken by stealth. Subsequent events show plainly that the Roman procurator was not privy to the placing of Jesus in the power of his enemies.

Although it was night-time, all the gospel narratives agree that Jesus was immediately led away to Caiphas, the high priest, at his house, the Johanine narrative saying however that he was first brought before Annas, which will be noticed later on. The legal course would have been that pursued by the captors of Peter and John not long afterward, who "put them in ward until the morrow, for it was now eventide." Acts, iv, 3. Matthew's gospel says, that when they took Him to the palace of the high priest, "the scribes and the elders were assembled "there. xxvi, 57. Mark's says "all the chief priests and the elders and the scribes" were so assembled. xv, 53. Luke's says nothing directly to the same effect, but inasmuch as it says that chief priests and elders were present at and took part in the capture, it follows from his narrative that they were also at the high priest's house. The fourth gospel is silent on the subject. It may therefore be taken as a fact that at least a legal quorum of the Sanhedrim to try a capital case was present, and that the court had jurisdiction there is no room to doubt. That the judges had convened in anticipation of the arrest of Jesus, shows the working of the conspiracy against Him. The sitting of the court in the high priest's house instead of in its regular place was no more than an irregularity, instances of which still occur. The first and second gospel uarratives agree that Jesus was tried on the night of His arrest before the high priest and the other assembled members of the Sanhedrim, and give a more or less circumstantial account of what occurred. Witnesses were examined against Him; He was called upon to make answer, and was condemned "to be guilty of death." The third gospel says nothing of any such proceedings during the night. The Johanine narrative is of proceedings in the nature of an examination before either Annas or Caiphas, it does not clearly appear which, though scriptural writers are agreed in saying Annas. It says nothing of the presence of the chief priests, elders and scribes. The author of this gospel seems to have been misled into supposing that there were two high priests, by the famous false chronological passage in Luke (iii, 1, 2), which says that in the fifteenth year of the reign of Tiberius Cæsar, at the coming of the Baptist, Pontius Pilate,

being governor of Judea, Annas and Caiphas were high priests. Of course there could be but one high priest at a time, so the writer of the fourth gospel, supposing there were two high priests, seems to have thought they filled the office alternately, each for one year. This is evidenced by his speaking of Caiphas more than once as the high priest "that same year." But Annas had been deposed from the office of high priest by the Romans during the procuratorship of Pilate's predecessor (Jos. Antiq. xviii, 2, 1), and his son-in-law, Caiphas, was regularly vested with the office during the whole term of Pilate. The Jews undoubtedly regarded his deposition as a sacrilegious interference with their divine system, and may have continued to regard him as de jure high priest; yet he was without authority, even according to Jewish law, inasmuch as the office was legally filled by another. It is therefore true, that if Jesus was tried, or even examined, before Annas, the whole proceeding was illegal; and furthermore, if he was tried before the lawful high priest alone, the trial was illegal, as there was no such thing as a sole judge in Israel. After narrating such proceedings, the Johanine account (v. 24) consecutively states as the next thing that occurred, that Annas sent Jesus bound to Caiphas, leaving the just inference that what preceded had taken place before Annas. The false translation of this verse in the King James (or authorized) version by the use of "had sent" for "sent" does not obviate the difficulty. The reading there is: 'Now Annas had sent Him bound unto Caiphas, the high priest;" the revised version is: "Annas therefore sent Him bound unto Caiphas, the high priest," and the Douay version is: "And Annas sent Him Back to Caiphas, the high priest." None of the synoptical gospels mentions any proceeding before Annas, and it seems probable there was none. The weight of authority is that Jesus was tried before the Sanhedrim during the night of his arrest. As has been seen, a night trial was unlawful. But the narratives of the three synoptics agree, that when the morning was come, the Sanhedrim again met, this time formally, in its regular place of sitting, and took final action. The third gospel mentions as taking place at this session proceedings which the other two synoptical gospels say took place during the preceding night, but does not state that any witnesses were examined. This morning session was obviously held only to save appearances, and give a semblance of regularity to the proceedings.

Under the Jewish system of procedure the charge against an accused was not reduced to writing. It It rested wholly in the testimony of the accusing witnessess; a simple method which has its advocates today among jurisconsults, as preferable to technical written indictments, under which many criminals have secured an acquittal for a slight variance between the proof and the indictment. We have therefore to follow the proceedings on the trial of Jesus to ascertain what was the crime charged against him and for which he was condemned. As already appears the narrative of these proceedings is principally in the gospels according to Matthew and Mark. The first gospel says that when Jesus had been brought before them "the chief priests and elders and all the council sought false witness against Jesus" (xxvi, 59) the second says simply that they "sought for witness" (xiv, 55), but even the spectacle of his judges seeking for witnesses against one arrested without accusers is shocking. The first gospel says they found none: yea, though many false witnesses came, yet found they none." The second says they found none, "for many bare false witness against him, but their witness agreed not together." The first then says, "At the last came two false witnesses, and said, this fellow said I am able to destroy the temple of God

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and to build it in three days." The second correspondingly says, "And there arose certain bearing false witness against him, saying, 'We heard him say I will destroy this temple that is made with hands and within three days I will build another made without hands,"" and then adds: But neither so did their witness agree together." The first gospel makes no claim that the two who came at the last did not agree together; it simply says they were false witnesses. The second says they were false, and further that they did not agree together. But the trouble about this is that it states just what the witnesses said, from which they appear to have agreed. Nor can the statement that they were false witnesses go for much. This has always been and will ever continue to be said of witnesses. As a matter of fact the Johanine gospel relates that Jesus had made such an assertion while teaching in the temple (ii, 19), but it says he had reference to the temple of his body, which the Jews in their blindness did not perceive. The Jews had asked him for a sign, and for answer, standing there in the temple, he exclaimed: "Destroy this temple and in three days I will raise it up." The answer of the Jews, "Forty and six years was this temple in building, and wilt thou rear it up in three days?" shows what was their understanding of the words of Jesus, and he did not disclaim the meaning they attributed to him. The question whether the witnesses were false, turns not on what Jesus meant but on what he was understood to say. That the particular testimony on which Jesus was convicted was generally known is shown by the raillery of those who passed by as he hung on the cross: "Thou that destroyest the temple and buildest it in three days save thyself and come down from the cross." Mark xv, 29; Matth. xxvii, 40.

It does not seem that the words of the high priest to Jesus at the close of the testimony for the prosecution were at all improper, though they have been universally condemned. The two Synoptics who give the particulars of the trial unite in the statement that the high priest said to him, "Answerest thou nothing? What is it which these witness against thee?" It was the usual call on an accused to put in his defense, his turn having come. It was according to the regular proceeding then as it is now in all courts. Jesus could then have called witnesses, or said any thing he wished in his own behalf, or any disciple of the law present could have spoken in his favor. But none the less it was the grossest travesty on justice to call on him to make his defense and produce his witnesses without giving him sufficient time for the purpose. The same thing has often since happened however, Jesus held his peace, which was a silent protest that he did not recognize the proceedings as fair or legal. Then following the solemn adjuration of the high priest to Jesus to say whether he was the Christ, to which he answered according to the first gospel, "Thou hast said; " accordingt o the second, "I am; according to the third, "Ye say that I am;" the two first adding that he said further that thereafter they would see the Son of Man sitting on the right hand of power and coming in the clouds of heaven." Thereupon the high priest rent his clothes exclaiming: "What need we any further witnessess? Behold, now, ye have heard his blasphemy. What think ye?" Then they all adjudged him "to be guilty of death." The objection generally urged against this by biblical writers is that it was a conviction of Jesus on his own confession or statement, which was contrary to Jewish law. The writer is unable to take this view of it. Two witnesses, the requisite number, were examined against him. The assertion therefore that he was convicted on his own confession is plainly an exaggeration. The solemn call on Jesus however to disclose himself was not lawful.

The reader has doubtless already perceived that the crime for which Jesus was condemned was blasphemy, an offense for which individuals are even yet prosecuted. Jesus had been claiming supernatural power, which in a human being was blasphemy. It was for this cause that the Jews some time before had taken up stones to stone him as he was teaching in the temple in Solomon's porch: "For good work we stone thee not; but for blasphemy; and because thou being man makest thyself God.' John x, 33. The testimony of the witnesses was of a specific assertion by him of supernatural power in himself, and was therefore directly in point. Blasphemy with the Jews however had a more extensive meaning than it now possesses. The charge against Naboth was that he blasphemed against God and the King." Naboth's Trial, 1 Kings, xxi. It was also a species of blasphemy to teach against the doctors of the law, for which the punishment was death. This was a necessary outcome of the theocratic idea of the Jews - the voice of Jehovah himself speaking through divinely constituted authority and regulating and guiding the affairs of his chosen people. It may be worth while to observe how scrupulously the Jewish hierarchs avoided trying Jesus for this particular kind of blasphemy, though they could readily have proved it against him. Such a trial would have opened up the real issue be tween Jesus and his enemies, and might have precipitated a discussion which could not be otherwise than very embarrassing to them, while it would be hailed by the large following of Jesus among the people.

According to the fourth gospel, Jesus when questioned by Annas or Caiphas (whichever is meant), concerning his disciples and doctrine answered: "I spake openly to the world; I ever taught in the synagogue and in the temple whither the Jews always resort; and in secret have I said nothing. Why askest thou me? ask them which heard me what I have said unto them; behold, they know what I said." xviii, 20. This response was in exact accordance with Jewish law. It was an eloquent protest that he could be convicted only on the testimony of witnesses. For the statement in this gospel that thereupon an officer struck Jesus with the palm of his hand, no equivalent is to be found in the three earlier gospels. It may well have occurred however, for such incidents have often since occurred in courts; and it is not unknown now-adays for some super-serviceable court officer or tipstaff to lay violent hands on a prisoner for making a fitting response to a judge engaged it may be in unlawfully questioning or brow-beating him.

If the writer were to express formal conclusions in order they would be: (1) that the arrest was not legal; (2) that the charge constituted a crime and was there. fore one on which a person could be legally convicted; (3) that the court was lawfully constituted and had jurisdiction; (4) that the trial was not conducted fairly; (5) that it was unlawfully held in the night time; (6) that the judgment was unlawfully rendered without an adjournment; (7) that the judgment was supported by evidence the sufficiency of which the court had the right to pass upon; (8) that it was an unjust judgment given by judges so prejudiced against Jesus as to be unfit to try him.

It seems a mistake to call the proceeding before Pilate a trial. It was not a trial in the legal meaning of that word and was not intended to be such either by the Jewish authorities or by the Roman procurator. The Jewish nation was at the time under Roman dominion; but as was usual with the Romans in dealing with subject nations they had left to the Jews their religion, laws, manners and usages, and even their systems of civil and judicial administration, except in so far as they might be incompatible with Roman supremacy. Under Roman conquest a nation

was at first merely tributary and lost its antonomy by slow degrees. British rule in India furnishes an illustration of the same policy of gradual absorption. The power of life and death however the Romans had taken away from the Jews as its exercise might clash with ultimate Roman authority. Though the jurisdiction of the Sanhedrim to try an accused and condemn him even to death was not disturbed, yet the judgment of death could not be carried out without the sanction or confirmation of the Roman governor. Hence when the Sanhedrim had condemned Jesus it was necessary to apply to Pilate for his fiat that the death sentence be executed. In most cases it was a mere matter of form for the governor to give his sanction to the judgment of the Sanhedrim. Yet he had the power in any case to withhold his approval, and when he paused for the purpose of considering the justice of the judgment he ceased to act administratively merely, and the proceeding became to some extent judicial. This is what happened in the case of Jesus. It may therefore in a certain sense be said that he had a trial before Pilate, not meaning that he was dealt with or was required to be dealt with as if accused in the first instance before a Roman judicature. He had a hearing before Pilate, but no witnesses were examined. Pilate was as well aware as was Festus when Paul was accused before him afterward that it was "not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him." Acts xxv, 16. But the difference is that Paul was accused before Festus in the first instance, no Jewish tribunal having convicted him. Pilate was reluctant to sanction the judgment of the Jewish court. He looked upon Jesus as an innocent man, persecuted from bigotry, envy and hate by his own race. He was disposed to save him. He had heard much of him, and of his ministry. He cared nothing for his teachings, but Jesus had made a great stir in the Jewish world, and curiosity to see and converse with him, and a sense of fair-play in his behalf were evidently aroused in Pilate. If instead of Jesus it had been some robber condemned by the Sanhedrim at its morning session that was brought before Pilate, there would have been no parleying, but the approval and the order for the execution would have been mere administrative routine. The chief priests expected the same course in the case of Jesus. They did not come to Pilate to accuse Jesus and have him tried according to Roman law and procedure. This is made manifest by their answer to Pilate's question, what accusation they brought against Jesus: "If he were not a malefactor we would not have delivered him up unto thee."John xviii, 30. The word malefactor as used by them meant not merely an evil doer but one already tried and convicted of a crime. See weak translation, Revised version. The answer of the chief priests meant this: "We have tried and condemned him and that is enough for you to know; we are not asking you to try him; give the order for his crucifixion." As exhibiting the feeling of authority and independence

alone in saying, but to his own soldiers to be crucified. If the Jews had put him to death it would have been by stoning. While Pilate's decision was wavering in the balance the same gospel says he was brought to a compliance with the demand of the Jews by their implied threat of complaining against him to the emperor, Tiberius Cæsar.

The third gospel states that Pilate in his perplexity seized on the mention of Galilee, and learning that Jesus was from that place, questioned bis own jurisdiction and sent him before Herod, tetrach of Galilee, who happened to be in Jerusalem at that time. This episode is extraordinary in itself, and no mention is made of it in the other gospels. It would be strange if Pilate regarded the fact of the non-residence of Jesus in Judea as depriving him of jurisdiction over the proceeding of the Sanhedrim in the case. He certainly never derived any such idea from Roman law or government.

The conclusion with regard to Pilate is that though he was vested with the power to release Jesus at will, yet his strict duty required him to do no more thau ascertain whether his condemnation by the Jews trenched on or menaced Roman order or authority. Nevertheless having gone beyond this, considered the justice of the judgment and convinced himself by investigation that Jesus was despitefully and wrongly condemned, he was morally bound to exercise his power to save him, and for not so doing he will ever stand justly condemned as guilty of his death by the united voice of mankind. W. J. G.

BROOKLYN, Nov. 1, 1887.

EMINENT DOMAIN-COMPENSATION-EVI

DENCE.

OHIO SUPREME COURT, OCT. 4, 1887.

COLUMBUS, H. V. & T. Ry. Co. v. GARDNER.

In an action by the owner of property abutting on a public street of a municipal corporation, which is occupied by a railroad track, under an agreement with the municipal authorities, by virtue of the statute, to recover against the railroad company for injury to such property by the laying of the track, it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire occasioned by running of locomotive and cars along the track in front of the property.

On the trial of such action witnesses were permitted, against objection, to testify how much less per year was received as rent for the property affected, since than before the track was laid in front of it; to give their opinions concerning the amount of damages sustained, and also their opinion as to "the difference in value of the property with the track in the street and if it was some other place." Held, error.

RROR to Circuit Court, Gallia county. The opinion states the points. The plaintiff had judgment below.

J. A. Wilcox and S. A. Nash, for plaintiff in error. A. L. Roadamour and D. B. Hebar, for defendants in error.

OWEN, C. J. The agreement between the railroad company and the city of Gallipolis, in pursuance of, which the former laid its track along the street of the city, was made under the authority of section 3283, Rev. Stat., which provides that "if it be necessary, in the location of any part of a railroad, to occupy any

public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used and occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals. But every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground; which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track.

One of the important questious in this case is: Did the trial court err in charging the jury that it could take into account, in estimating the damages of the lot owners, the evidence relating to the annoyances occasioned to the occupant of the property by smoke, noises and sparks of fire occasioned by running of locomotives and cars along the track in front of the same?

This the evidence tended to prove, as shown by the testimony of one of the witnesses, on cross-examination by the company: "Tell me what enter into your ideas of damage to this property? Answer. Well, this building there was for the purpose of a store. They were doing business in it, and it used to be a valuable stand, but it is not a desirable place now, because he keeps a general store, and did a country business, but the road has run the customers off. I stayed there seven years; quit in 1879. As elements of damage, I consider the shaking or jarring, smoke; for we had to close all the doors whenever there was a train, as the smoke made every thing so dirty. He used to keep some white goods, and it would ruin them; kept prints, more or less, and it damaged every thing of that kind."

The plaintiff in error relies upon the authority of Parrot v. Railroad Co., 10 Ohio St. 624, as conclusive upon this question. Two propositions of the syllabus in that case are: "(1) That such owner and occupant is entitled to damages for any obstruction to the street by earth, gravel, timber or rail, substantially affecting his use of such street as an appurtenance to his premises. (2) That in respect to noises, smoke, vapor or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling-house has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. A railroad authorized by law, and lawfully operated, cannot be deemed a private nuisance." This was an action of trespass on the case, brought anterior to the Code, and seems to have been considered by the court without reference to the remedy which is contemplated, and indeed provided for, by the act in question. For whereas the court declares in that case that the owner of such lot has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discom. forts, the act in question expressly authorizes an action and recovery for injuries done by laying a track upon any such street or ground to private or public property "lying upon or near to the street or ground upon which the track is laid." It seems, that to entitle a property-owner to recover for injury to his

property, it need not necessarily be situated upon the street occupied by the track. The statute reaches beyond the decision in prescribing a remedy for a party whose property is injured by the location and operation of a railroad track through the street of a municipal corporation.

It is quite clearly apparent that the court, in the case last cited, was dealing with the subject of "noises, smoke, vapor, or other discomforts," upon the assumption that they were such inconveniences as the public at large must bear, in return for the public good to be acquired, and not as special and peculiar causes of injury and depreciation to the property affected, as contemplated by the statute before us, in its application to a case like the one at bar. The provision in force at the time of the injury complained of in that case, of which section 3283 is an amendment, created no such remedy for land-owners as we are considering. 46 Ohio L. 45. True, in the case at bar, the property involved was situated upon the street occupied by the track. It cannot be claimed however that the remedy of the owners is restricted by that fact. The plaintiffs below owned a valuable interest in the street taken by the railroad company for the use of its track. This is too well settled by the adjudications of this court to justify the citation of authorities to sustain the proposition. This interest was a proper subject for appropriation and compensation by the company. It was taken without either. It was not within the power either of the city of Gallipolis or of the General Assembly, to authorize the company to take this property of the plaintiffs below without compensation. While as between the city and the company, the taking of the street was rightful, between the company and the plaintiffs it was wrongful. Whether the action below was one in the nature of an appropriation we need not inquire. The question involved was, whether in the sense contemplated by the act in question, the property of the plaintiffs was materially and substantially injured by the location and operation of the railroad track upon the street upon which such property abutted. Having invoked the provisions of this statute, it is not unreasonable that the company should be held to the remedies which it prescribes to parties injured.

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The company further cites and relies upon Hatch v. Railroad Co., 18 Ohio St. 92, where it was held: "Nor is such owner entitled in such action to recover on account of increased danger from fire to his buildings or other structures, unless the proximity of his buildings, etc., to the railroad be such as to render the danger imminent and appreciable." The evidence below tended to show such a condition of things, as upon the proposition of this case, entitled the plaintiffs to damages.

While it may be conceded, that in estimating the plaintiffs' damages the jury would not be permitted to take into account the consequences of the operation of the railroad which were common to the community at large, no sound reason exists for excluding from consideration such elements of inconvenience, annoyance, danger and loss as result to the property, its use and enjoyment, from the "smoke, noises and sparks of fire occasioned by running of locomotives and cars along the track in front of the same," if it be shown that these caused special injury and depreciation to the property. The right to the use of this street by the public as an ordinary highway, was all that had been surrendered by the owners of these abutting lots prior to the location of the railroad track. In that use there were none of the elements of injury of which they now complain. Without their consent, and against their right, these new and injurious burdens have been imposed, and that in perpetuity and to their substantial loss. What better rule of redress