The Trial of Jesus. Walter M. Chandler
wine"; or, if one should say, "I was present when the money was paid at Jerusalem," the other, "I saw it paid at Hebron"; or, if one should say, "I saw it paid in the month of Nisan," the other, "I saw it paid in Iyyar," their testimony would be void. But if one says he saw it paid in the upper and the other in the lower story; or if he says on the first of the month and the other on the second of the month, such evidence is within the limit of fair mistake and the testimony stands. Even less does a disagreement as to circumstances other than time and place affect the testimony; for instance, if one say the money is black from usage, the other that it was new, this would be regarded as an immaterial circumstance, and the testimony would stand. Where the two witnesses vary only in the matter of quantity, the lesser quantity is sufficiently proved.[138]
One of the strangest provisions of Hebrew law was the requirement that the testimony of each witness to the transaction should cover the entire case. This was a Talmudic rule resulting from Rabbinic construction of the Mosaic ordinance, requiring at least two witnesses to establish a crime. The doctors of the law construed the rule to mean that the testimony of each witness was to be complete within itself and to extend to the whole case. Hebrew law did not permit the use of circumstantial evidence in criminal prosecutions. Only eyewitnesses of the crime were competent. Under English and American law a crime may be proven by any number of witnesses, each of whom testifies to a separate fact which constitutes a link in the chain of circumstantial evidence. But this method of proof was forbidden by both the Pentateuch and the Talmud. Under Hebrew law the capital crime of kidnaping was made up of the two elements of Abduction and Selling. The testimony of two witnesses—one to the fact of Abduction, the other to the fact of Selling—was insufficient to convict. Each had to testify to the facts of both Abduction and Selling. This Talmudic rule of criminal procedure was undoubtedly based upon a supreme regard for the sanctity of human life and upon the fact that the Hebrews rejected circumstantial evidence altogether in proving crime. The extreme of the rule is declared by Mendelsohn when he says: "And even where there appeared a legal number of duly qualified witnesses, the testimony was insufficient to convict, unless they agreed not only with regard to the prisoner's offense, but also with regard to the mode of committing it. Rabbinic law does not subject a person to capital, nor even to corporal punishment, unless all witnesses charge him with one and the same criminal act, their statements fully agreeing in the main circumstances, and declaring that they saw one another, while seeing him engaged in the crime."[139]
No Oath Required.—An oath, in the modern sense, was never administered to a Hebrew witness.
Testimony was given under the sanction of the Ninth Commandment: "Thou shalt not bear false witness against thy neighbor." This solemn prohibition of bearing false witness was regarded by both Moses and the Talmudists as a sufficient safeguard against perjury. It was a settled maxim of Talmudic law that: "Whosoever will not tell the truth without an oath, would not scruple to assert falsehood with an oath." The doctrine was carried still further by some of the Jewish philosophers who declared that swearing was injurious in itself; and that he who consents to swear should ipso facto be suspected of lacking credibility.[140]
In the place of an oath, the following solemn warning or adjuration was administered to each witness in the presence of the entire court:
Forget not, O witness, that it is one thing to give evidence in a trial as to money and another in a trial for life. In a money suit, if thy witness-bearing shall do wrong, money may repair that wrong. But in this trial for life, if thou sinnest, the blood of the accused and the blood of his seed to the end of time shall be imputed unto thee. … Therefore was Adam created one man and alone, to teach thee that if any witness shall destroy one soul out of Israel, he is held by the Scripture to be as if he had destroyed the world; and he who saves one such soul to be as if he had saved the world. … For a man from one signet ring may strike off many impressions, and all of them shall be exactly alike. But He, the King of the kings of kings, He the Holy and the Blessed, has struck off from His type of the first man the forms of all men that shall live, yet so that no one human being is wholly alike to any other. Wherefore let us think and believe that the whole world is created for a man such as he whose life hangs on thy words. But these ideas must not deter thee from testifying to what thou actually knowest. Scripture declares: "The witness who hath seen or known, and doth not tell, shall bear his iniquity." Nor must ye scruple about becoming the instrument of the alleged criminal's death. Remember the Scriptural maxim: "In the destruction of the wicked, there is joy."[141]
It will be observed that the two elements of this preliminary caution were, first, a solemn warning against injustice to the accused through false swearing and a reminder of the inevitable retribution of Heaven upon the perjured swearer and his remote descendants; second, a pointed admonition against timidity or fear in testifying.
Bound by this tremendous sanction, the Hebrew witness was prepared to testify. The method was unique, but seems to have been thoroughly effective. Students of law will not be struck by its peculiarity. They are well aware that any plan or mode is legal and effective that binds the conscience of the witness. Even under modern codes that impose an oath, no fixed form is imperatively demanded. In King v. Morgan, I Leach C. L. 54, a Mahometan was sworn upon the Koran; in Omychund v. Baker, I Atk. 21, a Gentoo was sworn by touching the foot of a Brahmin; in Reg. v. Entrehman, I Car. & M. 248, a Chinese witness took an oath by kneeling down and breaking a saucer, the oath being administered through an interpreter in these words: "You shall tell the truth, the whole truth; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer."
Examination of Witnesses.—As an act of caution against the admission of irrelevant testimony, and as a means of placing before the entire court, in the first instance, only such evidence as was deemed strictly legal, a preliminary examination of witnesses was conducted in private by a special committee of the Sanhedrin appointed for that purpose. All irrelevant testimony developed at this private examination was immediately declared inadmissible and was cast aside. The necessary result of this most sensible proceeding was the discovery, in advance, of discrepancies in the statements of witnesses and the eradication of all illegal testimony. The full court sitting in regular session were not, therefore, exposed to the danger of being prejudiced by the recital of facts that had no legal connection with the case. Modern jurists might easily learn something from the ancient Hebrews in this regard. Every sensible lawyer is perfectly well aware of the absurdity and injustice of the modern method of criminal procedure in allowing skilled and designing attorneys to propose certain kinds of irrelevant testimony in the presence of the jury, knowing very well that it will be overruled by the court. These attorneys frequently deliberately draw out such testimony from the witness with the expectation and understanding that it will be ordered stricken out. The rule of practice that allows incompetent testimony to be temporarily introduced upon a promise that a foundation will be laid or relevancy shown, is abortive instead of productive of justice. The mere clerical act of striking out incompetent testimony does not, as a matter of fact, remove the impression of prejudice from the brain of the judge or juror. The ancient Sanhedrists were men of brilliant education and superior natural endowments. They were trained in powers of logical analysis, and yet they were unwilling to trust themselves with the possession of prejudicial facts arising from incompetent testimony. It is respectfully submitted that the modern average juror, whose mind is usually undisciplined in logic and legal matters, is not able to sift and disentangle the relevant from the irrelevant in the record of a civil or criminal trial of two or more weeks' duration. Theoretically, he is; but practically, he is not. Every impression, good or bad, legal or illegal, received at the trial, affects his judgment and enters into the general summary of the case in reaching a verdict.
Separation of Witnesses.—The witnesses were required to give their testimony separately and always in the presence of the accused.
Daniel said to the people concerning the two old men who testified against Susanna: "Separate them, and I will examine them."[142]
By this was meant that witnesses could not be examined until they had been separated in conformity with law. Under modern practice in most jurisdictions, witnesses may be separated and examined one at a time out of the presence of each other. The rule of separation is, however, generally optional with the litigant and discretionary with the court; the ruling of the court being