"And the judges shall make diligent inquisition; and, behold, if the witness be a false witness and hath testified falsely against his brother, then shall ye do unto him as he had thought to do unto his brother.
... And thine eye shall not pity, but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot."[146]
"And they arose against the two elders, for Daniel had convicted them of false witness, by their own mouth; and according to the law of Moses, they did unto them in such a sort as they maliciously intended to do their neighbor; and they put them to death."[147]
The Accused as Witness.—The accused was never compelled, under Hebrew law, to testify against himself; but was permitted and encouraged to offer testimony in his own behalf. His confession of guilt was accepted in evidence and considered in connection with other facts of the case, but was never permitted, standing alone, to form the basis of a conviction.
The following is the commentary of Maimonides on this rule of law:
We have it as a fundamental principle of our jurisprudence that no one can bring an accusation against himself. Should a man make a confession of guilt before a legally constituted tribunal, such confession is not to be used against him, unless properly attested by two other witnesses. It is, however, well to remark that the death sentence issued against Achan was an exceptional case, brought about by the nature of the circumstances attending it, for our law never condemns on the single confession of an accused party.[148]
It is needless to suggest that the accused was never put under oath. His position in this regard was exactly the same as that of any other Hebrew witness. A special reason assigned for not swearing the accused is that offered in the celebrated maxim: "In most men religion is silent when interest speaks." Again, the inducement to perjury was so great that it was thought imprudent to allow the accused to confess under the solemnity of an oath.
The principle of law which rejects a bare confession of guilt as a basis of criminal conviction is one of the most merciful and benign known to jurisprudence. It is intended to protect the commonwealth against perjury and deception on the part of the accused. It is also intended to protect the prisoner against ignorance and rashness. It is a well-known fact that the masses of mankind are ignorant of law, both civil and criminal. Not one in a thousand in the most enlightened commonwealths can define successfully the elements of the crimes of the state of which he is a citizen. By refusing to allow an uncorroborated confession to be made the basis of a conviction, the State simply throws the mantle of charity and protection around the ignorance of the prisoner who confesses. It is also well known that men will frequently confess guilt when they are not guilty; sometimes, when they are even ignorant of the facts constituting the offense. This is one of the strangest things known to psychology and mental philosophy.[149] It is derived from the well-known and universally recognized weakness of the human will when confronted with a charge that threatens to blight and destroy life and character at a single blow. A celebrated modern writer, while discussing this rule of Hebrew law, wrote the following observations upon the origin and motive of confession of guilt under criminal charges:
The confession of the accused made no exception to the rule, showing how a confession could be made the result of weakness, or folly, or of interest—yes, even of interest. Some homicide on one occasion confessed himself to be guilty of robbery or arson in order to obtain proof of his innocence of some greater crime which he had committed at the same time; a husband persisted in declaring himself guilty of outrage upon a woman, really committed by some unknown person, in order that, by being sentenced on this account, he might prove his marital efficiency, which had been disputed by his wife, who was contemplating steps to annul her marriage. Some weak-minded people, unable to support the torture of a harassing examination, and eager to regain their liberty, make a full confession, accusing themselves in order not to be indicted, like those persons who, crossing a river on a plank bridge, throw themselves, through nervousness, into the rushing water, in order not to fall in. Fools, from want of responsibility, or through a boastful nature, accept, affirm, or confess everything of which they know nothing.[150]
The reasons above stated lie at the foundation of all modern provisions framed for the protection of the accused against precipitate self-condemnation. But, strange to say, these reasons were not urged by the framers or interpreters of Hebrew law. The explanation offered by the Talmud was simply this: "He is his own kin"; and, as we have seen, relatives were never permitted to be witnesses. A modern Jewish writer has assigned the following reason for the rule forbidding a confession to form the basis of a conviction: that, if the prisoner were innocent, he should not be permitted to incriminate himself by a false confession; if he were guilty, he was a wicked person, and, therefore, incompetent to testify under Hebrew law.[151] This rule was not enforced, however, against the defendant when testifying in his own behalf; an additional proof of the merciful regard of Hebrew law for the unfortunate position of a human being charged with crime. His testimony, though self-serving, was given due weight when urged in his own defense. Little attention was paid to it when he testified against himself.