Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
which does not hold when there is a concurrence of testimonies, it iswilling that the guilty should escape”.A statement to the same effect appears in Alison 5 .7.1.3 Up until comparatively recently, the rule applied equally to civil cases. Indeed,historically, as will be seen, its roots in civil cases were stronger than those incrime. Balfour neatly put it in Scots in a marginal note 6 :“Twa witnessis at the leist makis lauchful probatioun”.7.1.4 It is useful to trace the source of the requirement because it will provide acontext for its utility. In this regard, Mackenzie and Hume deal with it inchapters on proof by witnesses which concentrate mainly on the manyexclusionary rules prohibiting a wide range of persons from giving evidence atall. These included, at various times and differing situations: children, lunatics,criminals, relatives and women 7 .7.1.5 As was noted in the consultation document 8 , the requirement can be traced toBiblical sources. Thus, in the Old Testament, it is stated that:“Whoso killeth any person, the murderer shall be put to death by themouth of witnesses; but one witness shall not testify against anyperson to cause him to die” 9 ;5 Principles & Practice of the Criminal Law of Scotland (1833) p 551, para 146 Practicks 1469 - 1579 (published 1754) p 373, see also Bisset: Rolment of Courts: 2007 see generally the references in Walker: “Evidence”, Stair Society Vol 20, p 306 and for thoseremaining in the eighteenth century Walker: A Legal History of Scotland Vol V The EighteenthCentury p 5568 para 3.79 Numbers 35 v 30242
and“At the mouth of two witnesses, or three witnesses, shall he that isworthy of death be put to death; but at the mouth of one witness heshall not be put to death” 10 ;“One witness shall not rise up against a man for any iniquity, or forany sin, in any sin that he sinneth: at the mouth of two witnesses, or atthe mouth of three witnesses, shall the matter be established” 11 .7.1.6 In the New Testament it is phrased as follows:and“But if he will not hear thee, then take with thee one or two more, thatin the mouth of two or three witnesses every word may beestablished” 12 ;“In the mouth of two or three witnesses shall every word beestablished” 13 .7.1.7 Although it is not likely that Scots lawyers would have derived the legalprinciple solely from the Bible 14 , they would have been heavily influenced,especially in matters of procedure, by the Canon Law 15 . Furthermore, theireducation and training in continental Europe in medieval times and later mighthave pointed them towards the Civil 16 Law. There, in the Code of Justinian,they would have read 17 :“The Emperor Constantine to Julian, Governor10 Deuteronomy 17 v 611 Deuteronomy 19 v 1512 Matthew 18 v 1613 2 Corinthians 13 v 114 cf Stair : Institutions of the Law of Scotland IV.43.1 stating the rule in the civil context was“confirmed by the word of GOD” and founding on Deuteronomy, Matthew and Corinthians15 Which formed the basis for Court of Session procedure from inception in 153216 i.e. Roman17 Book IV Title XX Concerning Witnesses. The instruction is dated 334 AD243
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<strong>and</strong>“At the mouth of two witnesses, or three witnesses, shall he that isworthy of death be put to death; but at the mouth of one witness heshall not be put to death” 10 ;“One witness shall not rise up against a man for any iniquity, or forany sin, in any sin that he sinneth: at the mouth of two witnesses, or atthe mouth of three witnesses, shall the matter be established” 11 .7.1.6 In the New Testament it is phrased as follows:<strong>and</strong>“But if he will not hear thee, then take with thee one or two more, thatin the mouth of two or three witnesses every word may beestablished” 12 ;“In the mouth of two or three witnesses shall every word beestablished” 13 .7.1.7 Although it is not likely that Scots lawyers would have derived the legalprinciple solely from the Bible 14 , they would have been heavily influenced,especially in matters of procedure, by the Canon Law 15 . Furthermore, theireducation <strong>and</strong> training in continental Europe in medieval times <strong>and</strong> later mighthave pointed them towards the Civil 16 Law. There, in the Code of Justinian,they would have read 17 :“The Emperor Constantine to Julian, Governor10 Deuteronomy 17 v 611 Deuteronomy 19 v 1512 Matthew 18 v 1613 2 Corinthians 13 v 114 cf Stair : Institutions of the Law of Scotl<strong>and</strong> IV.43.1 stating the rule in the civil context was“confirmed by the word of GOD” <strong>and</strong> founding on Deuteronomy, Matthew <strong>and</strong> Corinthians15 Which formed the basis for Court of Session procedure from inception in 153216 i.e. Roman17 Book IV Title XX Concerning Witnesses. The instruction is dated 334 AD243
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