The Ninth Commandment

Corroboration

Professor: Dr. R.J. Rushdoony

Subject: Prerequisite/Law

Genre: Speech

Lesson: 1

Track: 99

Dictation Name: RR130BC99

Date: 1960s-70s

Our texts our Deuteronomy 19:15, Deuteronomy 17:6, and Numbers 35:30. “Corroboration,” continuing our studies in the Ninth Commandment. The Law of Corroboration.

First of all, Deuteronomy 19:15, “One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established…”

Deuteronomy17:6, “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.”

And finally, Numbers 35:30. “Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die.”

We have been studying for several weeks, the Ninth Commandment, “Thou shalt not bear false witness.” The basic meaning of the Ninth Commandment has reference to the courts, to trials, to perjury of any sort. The courts represent God’s vengeance against evil, as ordered and channeled through human, but God-ordained agencies. When the Bible says “vengeance is mine, I will repay saith the Lord,” what this means is that first, God will repay directly, supernaturally, or through the course of history by bringing judgment upon evil-doers. And second, it means that God’s ordained vengeance, His justice, is channeled through those agencies of justice which He has established; the courts of the State, and any other courts that may exist; in church, school or elsewhere.

For justice to proclaim, to prevail in the courts of law, honest testimony is a basic necessity. But man is a sinner. And it is inescapable that his sin will reveal itself even in his testimony. As a result, the courts must have necessary checks and balances. There must be corroboration of testimony. And the three laws we read are laws that require corroboration of testimony. On top of this of course, there is cross examination, in order to put the testimony to test.

This law is very frequently referred to in the Bible. Some of the references, for example, to it in the New Testament appear, for example in our Lord’s words Matthew 18:15, 16, “15Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother. 16 But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.” Again in I Corinthians 13:1 [II Corinthians 13:1] we read, “…. In the mouth of two or three witnesses shall every word be established.” Again in I Timothy 5:19, “Against an elder, receive not an accusation but before two or three witnesses.” Again, in Hebrews 10:28, “He that despised Moses’ law died without mercy under two or three witnesses.” The law, thus, is repeatedly cited in the New Testament, cited as law—law that is valid, not only for the State but for the Church as well.

Now a few weeks ago, we analyzed truth-telling. And we saw that according to scripture, we are not under any obligation to tell the truth to someone who is trying to do evil, trying to rob us, trying to commit a murder. Truth-telling is reserved for all normal, godly communications. It is not for a man who is trying to find information to break God’s Law. We are under no obligation to tell him the truth and in fact it is wrong to tell such a person the truth, because then we are aiding and abetting him in his evil. Truth-telling, then, is reserved for the normal relationships of life which are within the framework of law and to court proceedings in every area of life: church, state, or any other area.

But even here, there are limits on truth-telling, on the requirement to tell the truth. Let us examine what those limitations on truth-telling are in order that we may understand what is required of us in bearing an honest witness:

First of all, there is a limitation on the ability of the court to extract the truth. It cannot have coerced confession. In other words, you can’t torture a confession out of anyone. This is forbidden. As a matter of fact, in Biblical Law, there is no prohibition for conviction on confession. Now this may seem a surprising fact. But it is an extremely important one. The only way a confession is valid in terms of Biblical Law is for there to be corroboration. So that if you were to appear in any court that is biblical, there would have to be corroboration to make sure that you’re telling the truth. Your witness is not sufficient. It has to be confirmed.

This is an extremely important point. Corroboration, thus, is always basic to Biblical Law. Biblical Law did not rely on confession. And this makes it totally different from any other law in the ancient world. It is this that is the foundation of our Constitutional provision, the Fifth Amendment, which states that no one shall be compelled in any criminal case to be a witness against himself. In other words, no one can be compelled to testify. And if you compel their testimony against themselves, the logical step is you compel it by torture.

Now in terms of this fact, the Christian must in principle oppose the use of lie detectors. The invention and use of lie detectors is a fearful evil. It portends a great menace and a threat to life and liberty. Why? Because the basic principle of our law which is derived from Biblical Law is that a man is innocent before the law, until proven guilty. Take that away, and you destroy all justice. Take that away, and all that is necessary is to file charges against a man and he has to prove himself innocent. And the burden of proof is on himself. Now it’s a very difficult thing to prove yourself innocent of a crime if your guilt is presupposed. Law and order breaks down then.

Now what does the lie detector do? It reverses this basic principle of justice. It assumes that the defendant is guilty and he must clear himself by coming and taking the lie detector test. In other words, the whole principle of saying, now will you take a lie detector test is, will you prove yourself innocent? It reverses the whole of basic criminal procedure. This is why it cannot be compelled of anyone. But the mere fact that people are given the idea, if you don’t submit to the test, you are in effect saying you’re guilty and you’re afraid to take it, compulsion is used. And the average man who is confronted with a challenge, well if you say you’re innocent, take the lie detector test, feels, well I’ve got to clear myself. And he takes it. So there is that compulsion, that feeling of moral compulsion, because people don’t understand the legal principle that is involved. It is the first step back to torture, to compelling confession from people, to the destruction of all Christian doctrines of justice.

There is another incidental menace in the lie detector test, and this was reported to me by a godly police officer, who said, it holds a tremendous threat in terms of the future. Because, he said, consider this: if you’re an innocent man and you’re accused and told, well try the lie detector test—prove it. And you do it gladly, feeling, well it will take a minute or two and it will be obvious that I am innocent. But once you are taking the test, there is a total invasion of your privacy. You can, in a society where, say it is illegal for you to worship God, be asked if you are worshipping God or if you have a Bible in your possession. You can be asked if you have a gun in your possession or any other question. So that once you submit, feeling you’re innocent of the charges, any question can be asked of you. And as this police officer declared, I do not believe in its use as a Christian, and I do not believe any Christian should submit to it. And he is right. The result is forced confession.

A Christian therefore, cannot submit to anything that invades his privacy and is a forced confession. No matter how innocent he feels he is, he must say it is your responsibility to prosecute, to dig up evidence, not to compel confession from someone. In principle I cannot accept the use of a lie detector for myself or for any man.

There are other limitations on testimony. There is a right to silence on the ground of privileged communication. Thus, both pastors and doctors cannot be compelled to testify if someone, in the course of their duty, confesses something to them. Thus, if a man has committed some offense and he comes to a pastor seeking spiritual counsel, the pastor has a religious duty to tell this man his duty to make restitution, to obey the law and to make amends in terms of the law. But since that man’s confession to him has been to God in the person of a minister or a priest, it is a privileged communication, because no person has a right to mediate between God and man. He can minister in God’s name, but he cannot take upon himself to play God and say, well, I will speak and witness to this and that. It is a privileged communication, as unto the Lord. And like a man’s private prayer, it is not a public statement.

The same is true of statements made to a doctor. We forget that the doctor is in origin and in basic function, a religious figure. The word salvation literally means ‘health.’ The fullness of salvation, according to the Bible, is the fullness of moral, spiritual, mental, physical health. It culminates not only in a regenerated man, but the resurrection of the body. Therefore, historically, the doctor has always been a religious figure. In fact, until only two or three generations ago, all hospitals were religious institutions operated by religious societies, Protestant or Catholic. The idea of a non-religious hospital is very, very recent; extremely new. Hospitals were created by Christian agencies. As a matter of fact, for centuries, doctors were actually monks when it became required that the clergy be celibate, doctors also, because their function was religious. Therefore, doctors cannot divulge information given to them by a patient, unless the patient grants his permission.

They are seeking help when they come to him, just as the man is seeking help when he goes to a minister. He is seeking it ultimately from the Lord in the person of a minister of health and a minister of spiritual health. And therefore, it is a privileged communication.

Now there are attempts, legally, to breech this matter of privileged communication. And they are wicked. Because ultimately, these attempts to breech the privileged communication of a doctor and a minister, like the lie detector tests, are steps back to the world of torture.

The same limitation on testimony replies with respect to an attorney. An attorney is speaking for a man in a court. He is an extension of the person, he is his mouthpiece. You’ve heard of that slangy expression for a lawyer, the mouthpiece. In other words, he is representing the man and therefore he has no independent existence, as it were, when he is speaking as an attorney in the court. He is a mouthpiece. Therefore, what he learns as a mouthpiece, he has no right to divulge. He is an extension of the defendant’s person. And therefore, it is a privileged communication. The court cannot compel him under any circumstances to witness to any communication between himself and his client.

The same is true also of husband and wife. With one exception—husband and wife cannot testify against one another. They are of one body according to scripture. Therefore, scripture declares, they are no more two, but one flesh—one life, one body. And the same principle applies there, because is it comparable to torture and it also breaks the unity of marriage if husband and wife are compelled to testify against one another.

This is why in Communist countries it is so diabolical and destructive of marriage when children, and husband or wife are compelled not only to testify against one another, but to spy on one another. This is why it is so easy for many of the communists to leave their wives and seek refuge in this country or in Britain or France. There is no real union in those marriages. And people who’ve been married and lived together in the Soviet Union 15, 20 and 30 years have on occasion left their family and come here because there’s never been possible that closeness. How can there be if your wife and your children are compelled if you say anything disloyal to the country, to report it and to witness against you? Real union in such a situation, closeness of family becomes virtually impossible, unless all are true Christians. But for the nonChristian, they can be married for years and years and have strong affection, but that affection is not a binding thing because the intimacy is lacking, the privacy, the privileged communication, is gone. It does not exist.

The only exception to privileged communication between husband and wife is if one assaults the other. If either slugs the other, then the right to testify exists, because it is presumed that to all practical intent for the moment at least, the relationship has been broken by the assault.

This question is an extremely important one because there is a studied invasion of privacy here and it is part and parcel of the modern idea of total truth-telling which goes against privileged communication as scripture affords it. Thus, today the Internal Revenue has for many years, compelled people to testify against themselves by submitting their records on demand. It has compelled corporations to testify against themselves by opening their books so that Internal Revenue can come in and photograph everything, look over their records, and then use this compelled or forced confession against themselves.

And you see the implications of this, ultimately. It leads to torture. Wherever you have a law of corroboration as scripture has it, and it is not breeched, but it is firmly held, it means that there can be no invasion of privacy. It means that the prosecuting agency has to locate the evidence and presume your innocence and avoid invading your integrity, the integrity of your person. This means that the integrity of the person, of even the criminal who is guilty cannot be broken!

If privileged communication and immunity from self-incrimination did not exist, then there would be no necessity for laws of corroboration; because the routine method of securing evidence would be to force the testimony out of the defendant. This is why there is no law of corroboration in pagan and in Marxist countries. It isn’t necessary. You simply compel the person to give evidence by torture, and you don’t have to confirm it. The law requires corroboration because it forbids coerced self-incrimination. Thus, we are not only under no obligation to tell the truth to a lawless man who is seeking to break the law, but the requirement to tell the truth in any court of law is strictly governed by law.

On the other hand, witnesses to a crime are under strict requirement to testify, if there is no self-incrimination or any privileged communication involved. A witness to a crime is not the judge of whether the testimony is material or not. The judge and the jury are. Nor is inconvenience any excuse. The judge and the jury have the duty of assessing the witness’s testimony, not he himself.

The judge and the jury also have the duty to assess the credibility of the witness, although this has virtually disappeared now. But until fairly recently, well into this century, every court in this country had the right to ask of a witness whether he was a Christian, whether he believed the Bible to be the infallible Word of God and Jesus Christ to be the very Son of God. The right to ask this question was a part of the right to assess the credibility of the witness. They had a right also to ask if he had a criminal record, to assess something in his background in order to determine his credibility as a witness. However, these things are now forbidden. In other words, what we are seeing today is a break-down of an assessment of a witness’s testimony and an invasion of the right of the individual to be free from coercion.

The duty to testify is a part of the citizen’s police power, his part in the administration of Law. As McKinney and Rich, in their law studies of the matter at the beginning of the century said, “it is a general rule of law, and a necessity of public justice, that every person is compellable to bear testimony in the administration of the laws by the duly-constituted courts of the country.” In other words, if no self-incrimination or privileged communication is involved, if you are witness to something, then you can be compelled to testify, and punished for not testifying, because then, according to scripture, you are an accessory to the crime. “When thou sawest a thief,” scripture declares, “then thou consentedst with him and has been partaker with adulterers.” By your silence then you are a party to the offense.

Thus, corroboration cannot exist as an instrument of justice if the citizenry is not mindful of its responsibilities in the enforcement of the law order. Nor can a law order exist very long if the foundation of faith is destroyed. We have seen this warning as we’ve analyzed the Biblical Law here, that it is basic to justice as we believe in it today. We have seen also that today there is a progressive invasion on the basic principles of justice as scripture establishes them. This invasion will always occur. Whenever and wherever men depart from the Lord, the fear of the Lord is the beginning of wisdom. It is also basic to justice.

Let us pray.

Almighty God, our Heavenly Father, establish us as a people again on Thy Law-Word so that again, justice may prevail in our courts and order in our streets. We may be again a nation whose God is the Lord and whose foundations are on Thy Word. Bless us to this purpose and prosper us in faithfulness unto Thee and make us ever-joyful in the knowledge, oh Lord, that Thou shalt prevail and all workers of iniquity shall be brought to the bar of Thy justice and heathen and ungodly nations cast down and Thy Word established. Our God, we wait on Thee, in Jesus’ name, amen.

Are there any questions now, first of all with respect to our lesson?

Yes.

[Audience] Does wire-tapping come in, in the area of...? {?}

[Rushdoony] Wire-tapping is an invasion of your privacy. It is an invasion which compels you to testify against yourself and so wire-tapping is not, in terms of scripture, a godly means.

It’s… you see, what we are doing is step-by-step, to get back to a world where you will compel the individual to give witness, and this is deadly.

Yes.

[Audience] …. {?} ….. would be to testify against yourself.

[Rushdoony] No. A voluntary confession is permissible, as we saw, but Biblical Law does not permit conviction on confession. There has to be corroboration. So that if a person confesses to a crime, what then ensues is that this has to be corroborated. It cannot be in and of itself sufficient.

Yes.

[Audience] I was wondering… {? } good situation to seek after, to seek out {?} to justify the extra{?} even though you {?} witness, because {?}

[Rushdoony] That’s not a crime.

[Audience] {?} …one time after another… {?} …which in my opinion, doesn’t work for {?}… {?} change the hearts and minds of people who are {?}

[Rushdoony] No, you see they’re not asking him to give testimony against himself to any extent that involves conviction. In other words, does he have a criminal record? They can’t ask him, ‘have you committed any crimes?’ But ‘do you have a criminal record? Is this a matter of public record?’, or they can introduce it.

The matter of faith in a Christian society is a matter of confession to something good in order to establish your credibility, and that’s its purpose.

[Audience] Justice does not automatically presume that anything… {?}

[Rushdoony] Yes.

[Audience]... It doesn’t mean there was a testimony… {?}

[Rushdoony] Right. Right. In other words, the court and the jury has a right to know, does this man have a background that’s credible, because he… supposing you and I were on trial and there is a man who has been guilty of perjury on several occasions testifying against us. We want that in the court record. Otherwise, we are in a bad situation. Therefore, it is necessary for any witness to come with clean hands. And to prove his clean hands, he has to be subjected to cross examination. His credibility has to be established. He is a prosecutor. Every witness is the basic prosecutor; therefore the prosecutor has to have clean hands. You have to establish his merit, his integrity as a prosecutor. So, this is basic to justice.

Yes.

[Audience] Part {?} with drama {?} jury {?} the courtroom, he doesn’t have to reflect directly {?} I have seen that on a {?}

[Rushdoony] Yes, but on the other hand, you have to assume that there will be an intelligent lawyer on both sides…

[Audience] {?}

[Rushdoony] Well, then that’s the fault of the person, you see. You’ve got to have an attorney who is capable, when a witness twists things, to undo that. And this is the whole point of the checks and balances—examination and cross examination; witness against witness. Because since scripture affirms that we are sinners, the sin is going to come out in a court of law some will have something to hide and others will try to twist the testimony to give an inference that is false. So the whole purpose of the process is to sift. Now, it cannot be a perfect sifting because the courts of men cannot be perfect. But it’s this sifting process which corroboration involves that makes it possible for justice to function.

[Audience] Well, the thing that’s terribly {?} is the, ah, refusing to testify on the grounds that we might be {?} it might incriminate a person, but if they {?} there’s no possibility of incriminating themselves, we can be {?}

[Rushdoony] Yes, the Fifth Amendment has been very much criticized because so many have ‘taken the Fifth,’ criminals and communists. But I think we should be grateful to these criminals and Communists for taking it, because the whole basis of the operation of the government in recent years has been very, very immoral; highly immoral. Both the courts and the prosecutors have often taken a very wrong turn.

For example, there was a meeting of the mafia leadership, you’ll remember, back in New York State, I believe, 2-, 3-years ago. And they rounded up some 60-, 70 men and took them in and put them on the stand. Now, the whole thing was shameful. It was a travesty of justice. They had no right to compel those men to get up there and say anything, and to put them through the bother of getting up and taking the Fifth Amendment did nothing except to discredit the Fifth Amendment, which is a very important law in the eyes of millions of Americans.

Because the reaction of millions of Americans, when they saw those mafia gangsters taking the Fifth Amendment, just as when they see communists taking them (and I know that some years ago they had one Communist before a committee and I think they had 27 pages of testimony where all he did was to invoke the Fifth Amendment). And I think it was wicked on the part of the Government in both cases. They knew they thoroughly knew that those men would take the Fifth Amendment and had every right to it. And the only thing they accomplished was to get the public worked up about the Fifth Amendment, so that people are ready to say, ‘well we ought to have wire-tapping’ and I’ve heard Conservatives say we ought to do something about the Fifth Amendment. So what does this pave the way for? Forced confession.

Now, I think they’re hypocrites when they do this because there is so much evidence of the communist operations of these people. In the case of this Communist who took 27 pages of the Fifth Amendment—they could prove any day his communist activities, because I knew the man. They could have had evidence enough to convict him of a number of things, but they never did. They just made a display of him taking the Fifth Amendment. The mafia gangsters—I think it’s beyond belief that they cannot convict these people. Beyond belief. Why don’t they?

For example, recently there was extensive investigation of mafia activities in Newark, New Jersey, by federal attorneys. They were controlling the airport, they were controlling the city, they were controlling a number of things. They not only gained a lot of evidence, but they spread it across the front pages and in every way did everything, but that evidence cannot be used in a court of law. And they made it clear in the process of spreading it out that they had secured it (some of it) by illegal means. What they’ve done is to make void that case. I doubt that there will be a single conviction out of it. So, you see, I believe that many of these things are done, not in an attempt to get these people, but to break down the basic law.

[Audience] Trust me, these are not {?} arguments, {?} I do think when I first {?} that the best way to know is to {?} proof that, {?} if you’re not going to incriminate yourself, that they’re abusing it just as much as the {?}

[Rushdoony] Oh, yes. If that can be proven, that they have no right to take the Fifth Amendment, they can be compelled to testify, and they can be imprisoned for refusal to testify. They have a duty, and a legal requirement to testify, unless there is a privileged communication and self-incrimination.

Yes.

[Audience] What {?} on the juxtaposition of {?} … civil rights violations {?} all of these cases that are {?} brought before a tribunal{?} forced to testify against themselves and {?}

[Rushdoony] Yes.

[Audience] What would be the {?} alternative? What alternative is there?

[Rushdoony] There is this alternative: it is futile to fight it and go to jail. You don’t accomplish anything that way. The reason why we’ve had this decline is because the faith and character of the people has declined.

When the first income tax law was passed (it was in the last century), it was overthrown by the courts and the people protested against it. It was a very nominal tax. It didn’t affect any but a handful. But people recognized that it was basically an immoral kind of proposition. But today you don’t have the moral fiber in people to recognize exactly what is going on or to do anything about it. If they recognize it, their attitude is, ‘oh, ah, forget about it.’

Part of this week when I was in the Washington, D.C. area, I stayed with a friend who works in the Pentagon and he was telling me a great deal of the present temper of things. And there is no protest there in Washington about anything. Things are much worse now than they ever were before. And they’re getting worse by the day. And he says as far as knowing what the issues are, there is scarcely anyone there that can be that stupid. And if you pushed them, they’ll finally admit they know. But their attitude is, well who’s to say what’s right and wrong and it’s every man for himself, or why get yourself involved? History goes up and down; it’s bad today, it may be better tomorrow. In other words, don’t stick your neck out.

Well, when you have a nation in which most of the people are that way, it’s futile to make a stand because there’s nothing to appeal to. What you can do is to work to create a new character in people. The old proverb which I’ve cited before, “you can’t make a good omelet out of bad eggs” is very true today. Most people today are bad eggs.

Yes.

[Audience] {?}

[Rushdoony] If… you can what?

[Audience] {?}

[Rushdoony] You can, but you had better be prepared to fight it out to the Supreme Court and pay a couple of hundred thousand dollars at a minimum--$250,000 is the barest minimum to fight it through.

Now, I think it’s fine if someone would fight it. But I don’t’ think the average person should try it because they cannot afford it. One or two people across country are fighting this sort of thing, people who can afford it. Fine. I think it’s very commendable on their part. But in several brief parables, or Lord emphasized the point—to count the cost. Count the cost. We’re never asked to throw ourselves away foolishly. A person who can afford to fight should make the fight. But we should make the fight where we can accomplish something.

Yes.

[Audience] Going back to the {?} things that occurred, that somewhere in {?} that God will rise up and punish evil-doers and if the {?} philosophy?

[Rushdoony] No. These people are by and large contemptuous of Christianity. There is less and less Christianity amongst the people, there are very few churches, if any, in many of the major cities that can be depended on to be truly Christian.

One of the things that I saw in New York City this week was the fact that major churches that were historic monuments are being torn down. And as one man told me, he said, about 10 years about, when St. Nicholas was being torn down it created an international incident as people all over the world protested the idea that a beautiful old church, an historic monument of Early America should be torn down to make way for a modern office building. But he said today equally important monuments are going, and nobody protests. And even worse, he said, is the way that they go. The churches are increasingly falling into the hands of revolutionary ministers and a congregation that shares their revolutionary perspective, so what they do is to vote themselves out of existence or in one case one of the great historic Congregational churches, they decided to go and unite with the nearby radical Catholic church and sell the property just for the land value (which was tremendous) of an historic church and give it to a black nationalist group. This was their way of being Christian—by giving it to the poor, as it were.

This is the kind of thing that’s happening. Churches are disappearing, and nobody cares.

Yes.

[Audience] What we have {?} and it’s not … {?} someone in the Church … {?} how do we redeem ourselves from accepting that {?}

[Rushdoony] We are never to move in terms of our convictions because very often we have very strong convictions about many things that are not right. We are only to move in terms of the Word of God and our convictions in so far as they are grounded on the Word of God; because we very often have very strong convictions that lead us astray.

Our time is really just about up, but those of you who are interested, I brought back a sheath of papers from my visit to Fairfax Christian School. This was from the kindergarten. They have a, quite a remarkable kindergarten there where the children not only have Bible and Music every day, they also have German, Arithmetic (addition and subtraction), they have Reading and Writing, they, and Science as well. They were discussing the parts of the insects, the thorax and so on, and I was listening in on the class, and I couldn’t have identified all the parts of an insect, but those children could. I listened to all of them get up and read their reading lesson in this kindergarten class and they were reading words like ‘physics’ and ‘analysis’ and they were not stumbling over them. And it was quite amazing to see the kind of work they were doing. They also have, of course, this was the advanced kindergarten class, the kids who are in the second and third grade readers. The 4-year olds are in a separate kindergarten class where they are just on the elementary primer. So it’s an amazing example of what children can do. So if you’re interested in coming up and examining some of these papers that I’ve picked up, arithmetic papers and the like, I think you’ll find them of interest.

Let’s bow our heads now for the benediction.

And now, go in peace. God the Father, God the Son and God the Holy Ghost bless you and keep you, guide and protect you this day and always. Amen.