Concerning capital punishment, the Mosaic ordinance, referring to this rule, runs thus:
At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.[129]
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.[130]
From the Talmud we learn that this Mosaic provision was maintained with scrupulous fidelity in the administration of justice throughout all the years of Jewish nationality. It was a requirement of prudence and safety which commends itself to every logician and legist. It is not necessary to be a criminal lawyer of large experience to know that the blackest falsehood can almost always secure at least one champion. Pliny, the historian, knew this when he wrote: "Nullum tam impudens mendacium est quod teste careat."[131]
The requirement of two witnesses was not, however, peculiar to the jurisprudence of the Hebrews. Nearly every ancient code contained a similar enactment. It was especially prominent in Roman law.[132] But it can scarcely be found to-day in any modern legislation. In prosecutions for the crimes of treason and perjury under the Common Law of England, two witnesses were required; in almost all other cases, one positive witness was sufficient.[133]
The American Constitution requires two witnesses to the same overt act, to convict of treason.[134] And the penal laws of the majority of the American States have provisions requiring at least two witnesses, or one witness corroborated by circumstantial evidence, to establish guilt in the prosecution of certain crimes; notably, the sexual crimes of rape and seduction, the crime of perjury, as well as all crimes where it is sought to convict upon the testimony of an accomplice.
More than one hundred years ago, Montesquieu boasted of such a requirement in French law and declared that those laws which condemn a man to death on the testimony of a single witness are fatal to liberty.[135] The reason of the rule proclaimed by the great French writer is the same as that put forth by the ancient Rabbins. It was assumed that the defendant in a criminal case would plead not guilty and deny the facts of the crime. His plea and denial would simply counterbalance and destroy the testimony of a single witness swearing for the commonwealth. The testimony of a third witness was, therefore, indispensable to a decision. It may be objected that this rule was absurd, since a conviction was impossible unless the State could produce more witnesses than the accused. But we shall learn later that the doctrine of sifting testimony and weighing the credibility of witnesses did not obtain so strictly among the ancient Hebrew judges as it does in cases of modern trial by jury under English and American law.
Agreement of Witnesses.—The witnesses were required to agree in all essential details; else, their testimony was invalid and had to be rejected.
The Talmudic provision is: "If one witness contradicts another, the testimony is not accepted."[136]
The illustration of the rule given by Maimonides, in his commentary on this provision, is: "For instance, if one witness were to testify to having seen an Israelite in the act of worshiping the sun, and another to having seen the same man worshiping the moon, yet, although each of the two facts proves clearly that the man had committed the horrible crime of idolatry, the discrepancy in the statements of the witnesses invalidates their testimony and the accused is free."[137]