Report No. 69
IX. Number of Witnesses
2.49. The rule that a certain number of witnesses is requisite for proof.-
The rule that at least two witnesses1 were needed for the proof of certain facts is found in the classical Roman Law2; but it gained its great authority in mediaeval Europe from the fact that it became a rule of the canon law3, justified, not only by the authority of the Old4 and New Testaments5.
It is not surprising that, under these circumstances, the maxim testis unnus testis nullus should be regarded almost as a provision of the Divine law. Its position is well illustrated by the objection to the system of trial by jury, which Fortescue, in his De Laudibus, puts into the mouth of the Prince. "Though", says the Prince,6 "we be greatly delighted in the form which the laws of England use in sifting out the truth in matters of contention, yet whether the same law be contrary to Holy Scripture or not, that is to us somewhat doubtful.
For our Lord saith to the Pharisees in the eighth chapter of Saint John's Gospel, 'In your law it is written that the testimony of two men is true'; and the Lord, confirming the same, saith, 'I am one that bear witness of myself, and the Father that sent me beareth witness of me.' Now, the Pharisees were Jews, so that it was all one to say: It is written in your law, and it is written in Moses law, which God gave to the children of Israel by Moses. Wherefore to gainsay this law is to deny God's law: whereby it followeth, that if the law of England swerve from this law, it swerveth also from God's law, which in no wise may be contradicted.
It is written also in the eighteenth chapter of Saint Matthew's Gospel 'But if they brother hear thee not, then take ye with thee one or two, that, in the mouth of two or three witnesses, every matter may be established'. If the Lord have appointed every matter to be established in the mouth of two or three witnesses, then it is in vain for to seek for the verdict of many men in matters of doubt. For no man is able to lay any other or better foundation than the Lord hath laid."
1. Holdsworth History of English Law, Vol. 9, pp. 203-204.
2. Dig. 22.3.12; Code 4.28.4; 4.20.9.
3. Decret. Greg. 2.20c, 23; Decret. pars, ii causa iv qu. ii and iii c. iv, 26; both passages cited by Wigmore, Vol. 3, 2696, note 5.
4. Deut. xvii 6, and xix 12.
5. Mat. xviii 16; John viii 17.
6. De Laudibus, C. 31.
2.50. Evidence of one witness.-
The idea that the evidence of one witness is not enough to prove the fact in issue emerges1 during the sixteenth and seventeenth centuries, sometimes in the provisions of statutes, and sometimes in argument and judicial dicta. Various statutes of the sixteenth and seventeenth centuries, which required the evidence of two witnesses for a conviction of the offences created by them, show that the Legislature was convinced2 of the danger of allowing a conviction on the unsupported testimony of one person.
But, by 1551, the common law (vide Reniger v. Fogossa, 155 Plowden 1), had come to the conclusion that it would reject any rule requiring more than one witness as a general rule of the law of evidence. As Professor Wigmore3 points out4, the decision in Reniger v. Fogossa was in favour of the defendant, though he only produced one witness. Coke's speech in the proceedings on Becon's impeachment shows that he rejected it5; and, even in the Star Chamber the rule requiring more than one witness was not invariable. After the Restoration, the rule that one witness is sufficient is slated as a positive rule of law.
1. Holdsworth History of English Law, Vol. 9, p. 205.
2. Statutory references omitted.
3. Wigmore, Vol. iii, 2702, note 22.
4. Holdsworth History of English Law, Vol. 9, p. 206.
5. R. v. Tong, 1662 Kelyng 18; R. v. Vaughan, (1696) 13 ST 535; Hale History of the Common Law, 6th Edn., 346 "they (the jury) may and do often pronounce their verdict upon one single testimony; which thing the civil law admits not of."
2.51. Two witnesses for treason.-
The only two exceptions recognised, other than exceptions introduced by express statutes, were in the case of high treason1 and in the case of perjury. The requirement of two witnesses in case of high treason rested upon a strained construction of the combined effects of statutes of Edward VI's and Mary's reign, and was not wholly freed from doubt till it was put upon a statutory basis by the statute of 16962. The requirement of two witnesses in the case of perjury is due to two main causes.
In the first place, the offence was developed in the court of Star Chamber, where the tendency to the adoption of the civil and canon law rule had always been stronger3. In the second place, the requirement of more than one oath against another oath is a particularly obvious measure of justice4, and it was a requirement which in the shape of the attaint procedure against a perjured jury,5 had a native tradition behind it.
1. For treason, the rule is now different in England.
2. Holdsworth History of English Law, Vol. 4, p. 499.
3. Wigmore, Vol. 3, 2720-2722, 2040.
4. He that travaileth to convince witnesses of perjury must of necessity bring forth many more than they were, so that the testimony of two or three men shall not ever be judged true," De Leubidus C. 32.
5. Holdsworth History of English Law, Vol. 1, p. 339.