13 “Unus Testis Nullus Testis”

ANTONINO METRO (MESSINA)

Everyone knows that in the formulary process proofs are unrestricted. The judge has freedom to evaluate the evidence, without having to submit its admis­sibility to any principle.

Not until the numerous rescripts of the late classical or post-classical epochs are such rules advanced, at first timidly, then with ever greater frequency. Thus Alexander Severus decreed that in the law of property proof could be provided not only by an instrument of sale but also by some other evidentiary means;^[251] Philip the Arab declared inadequate certain methods of proof which were insuf­ficiently supported;^[252] and so on.^[253]

It is in this context that one finds the rule according to which the testimony of just one person is not admitted (unus testis nullus testis), a rule commonly attributed to a constitution of Constantine in AD 334, which has survived to us in both the Theodosian and Justinianic Codes.

“Iusiurandi religione testes, priusquam perhibeant testimonium, iam dudum artari praecipimus, et ut honestioribus potius fides testibus habeatur, simili more sanximus ut unius testimonium nemo iudicum in quacumque causa facile patiatur admitti. Et nunc manifeste sancimus ut unius omnino testis responsio non audiatur, etiamsi praeclarae curiae honore praefulgeat.”

[“We have previously commanded that, before they give their testimony, witnesses shall be bound by the sanctity of an oath, and that greater trust shall be placed in wit­nesses of more honourable status. In a similar manner we sanctioned that no judge should easily allow the testimony of only one person to be admitted in any case what­ever.

The text of Constantine contains a reference to a twofold regulatory interven­tion by the emperor. In the first place it had been decreed [sanximus...] that judges ought not readily to admit the testimony of a single individual, i.e. that credence could be given only in exceptional circumstances; subsequently the emperor rules [sancimus...] that a single witness, even if of high rank [praeclarae curiae honore praefulgeat], was not to be heard at all.

However, academic argument has frequently maintained the existence of a classical basis for the rule in question.^[255] Even more radical is the thesis advanced in his day by Lanfranchi,^[256] according to which the origins of the rule should be sought still further back in time, in that the principle of the inadmissibility of a single witness was known as “indisputable” in the rhetorical sources, which were particularly important in this matter, since, after all, the theme of proofs was the major interest of the rhetoricians sooner than of the jurists.

It is true that, in certain passages from the two Senecas and Quintilian,^[257] there is insistence on the unreliability of a single witness, but that is much too little for considering them, as does Lanfranchi, “decisive” texts from which to infer so early an origin of our principle. As has been justly observed,^[258] we are here faced merely with a “... technical expedient to stress the singularity of a witness in order to discredit his evidence, namely to cast doubt on the reliability of his tes­timony; this is true in that the argument on the singularity of a witness is not made use of in any exclusive way, but along with other expedients directed at the identical end of persuasion.

Moving to the juristic evidence for the classicality of the principle, no argu­ment is validly drawn from D. 22.5.12, Ulpian 27 ad ed: “If the number of �?wit­nesses’ is not mentioned, two are enough, since the plural is satisfied by two”. [“Ubi numerus testium non adicitur, etiam duo sufficient; pluralis enim elocutio duorum numero contenta est.”]

The first phrase of the text seems to announce the general rule that is the sub­ject of our interest. But it is not correct, however, to stop at it; it is necessary to take into consideration also the second proposition, and in particular the words “pluralis elocutio”, which imply a specific reference that remains inexplicable if one wishes to see in the text an affirmation of the inadmissibility of a single wit­ness as early as the Severan age. The palingenesia of the fragment makes mat­ters totally clear, revealing it as an excerpt from a book of Ulpian’s commentary on the Edict, dedicated to theft. One can then with much probability affirm that the Ulpianic passage was connected to the ruling that a domiciliary search, in the case of furtum conceptum, must have witnesses present—testibus praesen­tibus—and this explains that the reference in the plural to witnesses—testes— (here the “pluralis elocutio” of which the text speaks) ought to be considered as satisfied by the minimum number of two.

The sole evidence from which it is legitimate to draw some indications relates to the exegesis of a rather obscure text, on which much doctrinal weight has been placed. We are talking of D. 48.18.20:

“Maritus quidam heres uxoris suae petebat a Suro pecuniam quam apud eum depo­suisse defunctam se absente dicebat, et in eam rem unum testem liberti sui filium pro­duxerat apud procuratorem; desideraverat et quaestionem haberi de ancilla. Surus negabat se accepisse et testimonium non oportere unius hominis admitti nec solere a quaestionibus incipi, etsi aliena esset ancilla. Procurator quaestionem de ancilla habuerat. Cum ex appellatione cognovisset imperator, pronuntiavit quaestione illicite habita, unius testimonio non esse credendum ideoque recte provocatum.”

[“A certain husband as his wife’s heir was claiming from Surus money which he said the dead woman had lodged with Surus, while he himself was absent, and he had pro­duced a single witness to this, the son of his freedman, before the procurator; he had also sought the interrogation under torture of Surus’ handmaid. Surus continued to deny that he had received the money, and said that the testimony of a single person should not be admitted, and that it was not customary to begin with interrogations under torture, even if the handmaid had belonged to a third party [etsi aliena esset ancilla]. The procurator put the maid to the torture. When the case came to the cog­nizance of the emperor on appeal, he pronounced that the torture had been conducted unlawfully, that reliance should not be placed on the evidence of one witness, and that therefore the appeal had been rightly lodged.”]^[260]

Someone, heir to his wife, raised an action against a certain Surus, to obtain restitution of a sum of money that, he alleged, the woman had deposited with the man in her husband’s absence.

This paraphrase of the content of the fragment does not take account of a brief phrase which has always been a sore point in the exegesis of the passage; I am referring to the phrase “although she was another’s slave”, that poses the substantial problem of the ownership of the slave woman who was put to the question. In this regard there are three possible alternatives: that she was the property of the pursuer,^[262] or of Surus,^[263] or of a third party.^[264]

Now, considering that the first hypothesis is hardly probable, it appears clear that the alternative between the other two is strictly dependent on the sense of the expression “etsi aliena esset ancilla”, and in particular on the importance that should be attributed to the word “etsi”. Either, in fact, the phrase may be translated “although the slave was another’s”, and this then strengthens the hypothesis of her being a third party’s, or, perhaps more likely, the purport was “and also if the slave was another’s”, with such an argument ad abundantiam being brought by the defender, in fact the owner of the slave.^[265] Anyhow, even if the question is important, inasmuch as from its solution should spring the pos­sibility of singling out by what title the torture of the slave was requested,^[266] for the angle which interests us we should be able to limit it to considering a single point.

The comparison^[267] between the terms in which the defender questioned the rejection of the testimony of a single person, and that with which the emperor received such an argument, making it his own, appears very instructive for our purposes. The defender held that: “non oportere unius hominis admitti”; the emperor, accepting the appeal, affirmed instead that: “unius testimonio non esse credendum”.

This seems to me sufficient to exclude that the inadmissibility of a single wit­ness had already been laid down in the classical epoch (i.e. up to the end of the second century); the most that one could draw from the text in question (apart from it being reasonable to doubt the worth of its being testimony for such a general rule) is that there was already discussion about the credibility of a single witness, in other terms, that already there was in movement a train of ideas anal­ogous to that which inspired the first of the two law-making interventions of Constantine, which we have traced from the evidence of C 4.20.9. I believe, then, that nobody could deny the novelty of the rule introduced by Constantine, with its affirmation of the absolute inadmissibility of a single witness.

In the light of the emperor’s taking so precise a position, it is easy to under­stand why a true crux of interpretation has always been the attribution to the same Constantine of the first of the constitutions contained in the notes col­lected by Sirmond. In this, together with other heterogeneous dispositions rela­tive to ecclesiastical matters, there was laid down the rule that the judge ought to give full credence to the word of a bishop, even if he was the sole witness,^[268] to the point of refusing a hearing to other witnesses: Sirm.1: “Furthermore, the testimony given by a bishop, even though he may be the only witness, shall be unhesitatingly accepted by every judge, nor shall any other witness be heard when the testimony of a bishop has been promised by any party whatsoever”.^[269]

The contradiction existing between the two texts has always constituted one of the stronger arguments for sustaining the thesis, widespread in academic doctrine, that holds Sirm.1 apocryphal (without wishing to extend this judg­ment to all the collection).^[270] This thesis, nevertheless, already criticized before the end of the seventeenth century,^[271] has in recent times been repeatedly opposed.^[272]

Limiting ourselves to the specifics of our interest (on the witness of the bishop), the argument taken from the contrast between the two constitutions of Constantine has been thought not to be decisive, insofar as it is not possible to exclude a priori that an emperor could have legislated on the same material in a contradictory manner.^[273] Indeed, the fact that Sirm.1 dates from 333 (5 May) and CTh 11.39.3 from 334 (25 August)^[274] seems of itself to admit the possibility of a reconciliation, attributing to Constantine a rethinking of the question, and therefore justifying the publication of a later law in contrast to an earlier one. This view is expressed, for example, by Vincenti who holds “that the attitude of Constantine on the point had undergone an evolution in a restrictive sense”,^[275] so that the emperor had in the first instance admitted the testimony of a single person, in a case which concerned someone particularly trustworthy, but then decisively excluded it a year later.

However, this reconciliation does not seem to me to be very convincing. As was said, Constantine’s ruling mentions a preceding norm, according to which in ordinary proceedings the testimony of a single person could be admitted only with particular caution. In my view, this second, but chronologically prior, ruling of Constantine, of which we have no direct trace, is in its turn difficult to reconcile with the other two, whether it is to be hypothesized as occurrring before 333, or whether it should be placed in the brief span of time between May 333 and August 334.

In the first case, Constantine’s legislation would appear somewhat schizo­phrenic on this point; first calling for caution in the admission of a single wit­ness, then accepting unconditionally the testimony of a bishop alone (forbidding absolutely the examination of other witnesses), and finally affirming as a gen­eral rule the principle of unus testis nullus testis. To be able to hypothesize with Vincenti an evolution in a restrictive sense of Constantine’s attitude in the mat­ter requires one to suppose that the preceding ruling, to which Constantine referred in 334, fell in the brief period between May 333 and August 334.

The hypothesis cannot be completely excluded, but it is not very believable, since it is difficult to imagine three successive legislative interventions on the same matter in the brief space of a year.

There is room, then, for another hypothesis, that is obviously presented as such, and so with all hesitation. Are we really sure that the constitution of 334 had totally invalidated that of 333? Are we sure, in other words, that the prohi­bition on admitting the testimony of one person alone was valid also for bish­ops? The norm seems to have had general import; getting down to the concrete, however, the highest rank that the emperor seems to have assumed relevant is that of curialis (“... etiamsi praeclarae curiae honore praefulgeat”), clearly not comparable with the rank of a bishop.

But the considerations that have induced me to formulate this hypothesis are different, and they derive, on the one hand, from the well-known richness of Constantine’s legislation granting privileges to the Church and its members,^[276] and on the other, from an important study of Volterra on the constitutions of Constantine.^[277] In it the illustrious maestro has underlined the existence of cer­tain constitutions among those ascribed to Constantine which are clearly iden­tifiable, in contrast to the others, whether by their style or by their content (which is characterized by the absolute lack of co-ordination with the juridical system in force, or simply by ignorance of it). Volterra has advanced the hypoth­esis that such constitutions should not be attributed to the emperor or to his chancery, but come from the members of the ecclesiastical hierarchy, who had imposed them on Constantine (or at least had enjoyed powers granted by him or had profited from the fact of participating in the imperial chancery).

Now, identifying in Sirm.1 one of these constitutions,^[278] one could easily explain its incongruity with whatever Constantine had decreed in general on the credibility of the witness of a single person, and one could hypothesise a con­tinuing validity that went beyond 334, not governed by the general prohibition issued by Constantine in that year. When, then, the emperor affirmed that a sin­gle person, even if a distinguished member of a town council, could not be admitted to give evidence, he did not revoke the privilege given to bishops the year before.

Certainly, even admitting that such a privilege remained in force past 334, one could not think that it had a long life. Evidence for this is the failure to insert the constitution in the Theodosian Code, which could have been due to the prob­lems provoked by the application of the constitution;^[279] above all, there is evi­dence in the ruling of C 1.3.7 in which in 381 Theodosius I exempted the bishops from the duty of giving testimony.^[280] Theodosius thus made it seem that their giving testimony was an unseemly burden on the dignity of the office, rather than a very substantial privilege, and this seems to presuppose that the law of exception emanating from Constantine was already abrogated.^[281]