The heritage of our Western legal system is built upon the tradition of Common Law and the foundation of Biblical Law. The Christian tradition has continually called even the most powerful to submit to God’s law. St. Ambrose, Bishop of Milan in the fourth century, famously called Emperor Theodosius to submit to the universal ethical standards of God’s Law.
At its very foundation is the 9th Commandment and testimony of two witnesses:
“It is also written in your law, that the testimony of two men is true.” – Jesus (John VIII :17)
“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.” (Deuteronomy XVII :6)
This idea of witnesses to corroborate testimony was essential to the Hebrew judicial system. As Rushdoony has succinctly said, “Your witness is not sufficient. It has to be confirmed.”
The system expects that the victim of a crime (those crimes being explicitly enumerated in the law) would bring forward his/her case. It is important to note that this implies two concepts: 1) Victims have initial control over prosecution, not the magistrate, as evidenced by the fact that victims could refuse to testify and/or forgive a grievance. 2) Victims hold the authority to level a charge based on their testimony and oath alone. The magistrate is expected to believe and thus investigate this testimony. To counter-weight this against abuse, perjury is considered in itself a heinous crime comparable to the capital crime of blasphemy. (Lev XIX:12)
The law also emphasizes the importance of corroboratory witnesses. The law protects individuals from any punishment at the hand of one witness. This principle is again practiced by St. Paul, elders (presbyters) are not to be deposed based on the testimony of one witness. The ability to mete out capital punishment was constrained to a list of severe and particularly heinous crimes, and even then the crime would require this standard of a double-witness before any death sentence could be carried out.
A Magistrate’s Burden
This standard of a double-witness is required to convict. It is to be seen as a sort of threshold to determining the validity of a claim. The courts were established by Moses and Jethro to act as judges in disputes. (Exodus XVIII) The conflict is between two parties, the victim and the accused. The accused is presumed to be innocent, even as charges are brought by the victim, the role of the magistrate is to determine which side of the lawsuit is true. Both sides of the lawsuit are to be held with equity until testimony is brought upon the scales.
Any case brought before a magistrate was done in the open “at the gates.” Levite(s) were involved in the public court as experts on the law to aid the magistrate. Today, this should serve as a warning against the humanistic desire to keep accusations secret. The victim comes to the gates, swears an oath, and then enters a deposition before the magistrate. The magistrate investigates the claim and witnesses are to be subpoenaed to reach the two witness threshold to establish a verdict. Although, his judgements could be appealed all the way up to Moses and later to the king. Only two sorts of judgements were allowed 1) restitution of property or money; or 2) Corporal or capital punishments.
The system is set up to prevent vigilante justice. The principle is less about the number of people who are on your side, but rather about submitting to a legitimate hierarchy. That is to say, no man by his own testimony may take vengeance.
Thus if our understanding is based upon Deuteronomy, the victim may bring forth a charge. The magistrate is to hear the charge and must investigate if it is true. It is not said that if there are not two witnesses that he may ignore it, but rather he has the responsibility to uncover whether the victim’s testimony is true through an investigation. How else could a false witness be punished? It is clear that the Law of Moses is built around the idea of accepting this initial testimony as sufficient to begin, but not in itself sufficient to convict.