The Trial of Jesus. Walter M. Chandler
had the Hebrew notion when, more than a thousand years after Jerusalem fell, he sent out colonists to the West Indies, with special instructions "that no lawyers should be carried along, lest lawsuits should become ordinary occurrences in the New World."[120] Ferdinand evidently agreed with Plato that lawyers are the plague of the community.[121]
(2) There was no secret body, with the accusatory functions of the modern Grand Jury, connected with the ancient Hebrew judicial system. The witnesses were the accusers, and their testimony constituted both the indictment and the evidence.
(3) There were no public prosecutors or State's attorneys known to the Hebrew system. Here, again, the witnesses were the informants, prosecutors, and, in capital cases, executioners of the accused.
(4) No court, among the ancient Hebrews, could consist of a single judge. Three was the number of the lowest court; three-and-twenty, of the next highest; and seventy-one, of the Great Sanhedrin at Jerusalem. A single intelligence acting judicially would have been regarded as a usurpation of divine prerogative. The basis of this peculiar Hebrew notion is a single sentence from the Pirke Aboth, iv. 8: "Be not a sole judge, for there is no sole judge but One."[122]
CHAPTER IV
HEBREW CRIMINAL LAW—WITNESSES AND EVIDENCE
Incompetency.—The following persons were incompetent to be witnesses: Gentiles, women,[123] minors, slaves,[124] idiots and lunatics, deaf mutes, blind men, gamblers, usurers, illiterate or immodest persons, persons who had been convicted of irreligion or immorality, relatives by affinity or consanguinity, and all persons directly interested in the case.
The witness must have been a Hebrew, though the Talmud mentions cases in which certain facts were allowed to stand proved upon statements "made innocently" by a Gentile; that is, not as a witness in court.
Women were not permitted to be witnesses ordinarily, because of the "levity and boldness of the sex."[125] In capital cases, they were not allowed to testify against the accused, because the law required the witnesses to become the executioners of the condemned man, and it was not deemed proper to impose this solemn and awful duty upon the weaker sex.
Puberty or adolescence marked the age which qualified a person to be a witness in criminal cases; that is, the thirteenth year must have been passed.
Immoral and irreligious persons were incompetent to testify. Such men were termed "wicked" in reference to the law as laid down in Exodus xxiii. 1: "Thou shalt not raise a false report: put not thine hand with the wicked to be an unrighteous witness." Under the stigma of the immoral and irreligious came dicers, usurers, pigeon fliers, and those who traded in the fruits of the Sabbatical year. Maimonides also mentions as incompetent "men who showed lack of self-respect by eating on the street, walking about naked at their work, or living openly on the charity of Gentiles."[126] Publicans—tax-gatherers—were usually classed with heathens and sinners as being among the immoral and irreligious. This class of persons were suspected by the Jews, not only because they were regarded as the official representatives of the Roman oppressors of Judea, but also because extortion and cruelty were frequently practiced by them. Theocritus being asked which was the most cruel of all beasts, replied: "Among the beasts of the wilderness, the bear and the lion are the most cruel, but among the beasts of the city, the Publican and the Parasite."[127]
The doctrine of interest as a disqualification to testify was carried to the limit of declaring a person incompetent to be a witness when he was the citizen of a town where claim of title to the public bath house or the square was made, until he had first divested himself of all share in the title to the litigated property.[128]
Number Required to Convict.—Under Hebrew law, both Mosaic and Talmudic, at least two witnesses were required to convict an accused person. The prosecuting witness being included, three were necessary.
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]
This rule of strict agreement, it is supposed, extended, at first, only to criminal cases, but it was undoubtedly afterwards applied to civil causes as well. An eminent contributor to the "Jewish Encyclopedia" says:
In civil cases, however, it is not necessary that the two witnesses should agree very closely as to the time and place. Thus, if of two witnesses to a loan one should say, "A lent B a jar of oil," the other, "He lent