Report No. 69
Minimum Number of Witnesses
We have noted in the introductory discussion that the modern tendency of the law is to dispense with a minimum number of witnesses. In conformity with this trend, section 134 provides that no particular number of witnesses shall in any case be required for the proof of any fact. The section thus makes a clean sweep of all antiquated rules of the common law requiring a certain minimum number of witnesses for proving particular facts.
74.2. In general, then, it is not necessary to produce a particular number of witnesses or a particular type of evidence, to prove a fact. This principle is well recognised in England-subject, of course, to certain specific exceptions; and it is also recognised in our law.
74.3. The volume of legitimate evidence required for judicial decision is no longer the subject of any mandatory rule. One of the great differences between the modern English law of evidence and that prescribed by the canon or civil law, which usually applied the maxim testis unus test is nullus (One witness is no witness), consists in the absence of any general requirement of a plurality of witnesses.1-2. But the rule, where adhered to rigidly,3 was felt to impose an obstacle in the administration of justice. Hence, it did not find favour in England.
1. Cross Evidence, (1974), p. 168.
2. Best Evidence, (1922), paras. 597-598.
3. Kulum Mundal v. Bhawani Prasad, (1874) 22 WR Cr 12 (Cal).
74.4. Section 134 corresponds to section 28 of the repealed Act 2 of 1855. But the previous section was more directly and in terms in accord with the English law on the subject than the present section, as will be noticed presently.1
1. See para. 74.17, infra.
74.5. Position in ancient times.-
In Anglo-Saxon and Norman Times and before the development of the common law, proof was, according to the importance of the case, made six-handed, twelve-handed, etc., he who had the greater number of witnesses prevailing. Attempts were not lacking to import this system into the common law; but, though various statutes were passed requiring two or more witnesses in particular cases, the attempts failed, and from, about the middle of the sixteenth century onward the present rules began to be more or less effectively recognised.1 By 1800, the rule was well-established .2-3
1. (a) Reniger v. Fogossa, 1551 Plowden 1 (8, 12);
(b) Articuli Cleri, (1605) 2 Howard ST 131 (143-144);
(c) R. v. Tong, (1662) 6 Howard ST 225.
2. R. v. Rusby, (1800) 2 Peake NPC 193.
3. Holdsworth History of English Law, Vol. 9, pp. 205, 206.
74.6. In 1551, in the case of Reniger v. Fogossa, 1551 Plowden 1 (8, 12),1the Attorney-General argued that the testimony of one witness was "not sufficient in any law", because it was contrary to the law of God. To this objection, this was the answer given' by Brooke-
"As to that which has been said by the King's Attorney, that there ought to be two witnesses to prove the fact; it is true that there ought to be two witnesses at least where the matter is to be tried by witnesses only, as in the civil law, but here the issue was to be tried by twelve men, in which case witnesses are not necessary, for in many cases an inquest shall give a precise verdict, although there are no witnesses, or no evidence given to them."
1. Holdsworth History of English Law, Vol. 9, p. 206.
74.7. In the proceedings on Bacon's impeachment1 in 1620, Coke thought it necessary to combat the idea that more than one witness was necessary2:-
"It is objected that we have but one single witness; therefore no sufficient proof. I answer that in the 37th of Eliz, in a complaint against Soldier-Sellers, for that having warrant to take up soldiers for the wards, if they pressed a rich man's son they would discharge him for money, there was no more than singularis testis in one matter."
1. Bacons Impeachment, 2 ST 1093.
2. Holdsworth History of English Law, Vol. 9, pp. 206, 207.
74.8. Rule in Star Chamber.-
The rule in the Star Chamber was different. In 1632, in Sherfield's case,1 Heath, C.J. commented on the fact that there was only one witness to prove one part of the charge. Indeed, it would seem from the two cases of Adams v. Canon, 1622 Dyer 53b note 15, and R. v. Newton, 1623 Dyer 99b, note 68, that it was almost an accepted rule of the Court of Star Chamber that a charge must be proved by two witnesses; though, from what was said by Lord Cottington in the Bishop of Lincoln's case,2 it would seem that it was not an invariable rule. "It is not always necessary in this court to have a truth proved by two or three witnesses And signularis testis many times shall move and induce me verily to believe an act done when more proofs are shunted."
The rule was stated in the widest terms by Strafford3 on his impeachment. He is reported as saying,-"that the testimonies brought against him were all of them single, not two one way; and therefore could not make faith in the matter of debt, much less in matter of life and death".
1. ST 545.
2. Bishop of Lincoln's case, (1637) 3 ST 786.
3. Srafford, (1640) 3 ST 1450.