The Common Law [101]
away with, and other oral testimony admitted? In any event, what can the law of Henry II.'s time have to do with consideration, which not heard of until centuries later?
It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better. The only weak point about a writing is the means of identifying it as the defendant's, and this difficulty disappeared as soon as the use of seals became common. This had more or less taken place in Glanvill's time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent's seal. /1/ The oath of the secta could always be successfully met by wager of law, /2/ that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff. But a writing proved to be the defendant's could not be contradicted. [262] /1/ For if a man said he was bound, he was bound. There was no question of consideration, because there was as yet no such doctrine. He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved. Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof by writing to proof by the old-fashioned witness oath. But there were other equally good reasons why the latter should not be extended beyond its ancient limits. The transaction witnesses were losing their statutory and official character. Already in Glanvill's time the usual modes of proving a debt were by the duel or by writing. /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party, and he says that their oath raises but a slight presumption. /3/
Moreover, a new mode of trial was growing up, which, although it was not made use of in these cases /4/ for a good while, must have tended to diminish the estimate set on the witness oath by contrast. This was the beginning of our trial by jury. It was at first an inquest of the neighbors [263] most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were selected by an officer of the court instead of by the interested party, and were intended to be impartial. /1/ Soon witnesses were summoned before them, not, as of old, to the case by their oath, but to aid the inquest to find a verdict by their testimony. With the advent of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear and leave no traces.
Taking into account the conservatism of the English law, and the fact that, before deeds came in, the only debts for which there had been a remedy were debts proved by the transaction witnesses, it would not have been a surprise to find the tender of suit persisting in those cases. But there was another reason still more imperative. The defence in debt where there was no deed was by wager of law. /2/ A section of Magna Charta was interpreted to prohibit a man's being put to his law on the plaintiff's own statement without good witness. /3/ Hence, the statute required witness--that is, the secta--in every case of debt where the plaintiff did not rely upon a writing. Thus it happened that suit continued to be tendered in those cases where it had been of old, /4/ and as the defendant, if he did not admit the debt in such cases, always waged his law, it was long before the inquest got much foothold.
To establish a debt which arose merely by way
It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better. The only weak point about a writing is the means of identifying it as the defendant's, and this difficulty disappeared as soon as the use of seals became common. This had more or less taken place in Glanvill's time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent's seal. /1/ The oath of the secta could always be successfully met by wager of law, /2/ that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff. But a writing proved to be the defendant's could not be contradicted. [262] /1/ For if a man said he was bound, he was bound. There was no question of consideration, because there was as yet no such doctrine. He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved. Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof by writing to proof by the old-fashioned witness oath. But there were other equally good reasons why the latter should not be extended beyond its ancient limits. The transaction witnesses were losing their statutory and official character. Already in Glanvill's time the usual modes of proving a debt were by the duel or by writing. /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party, and he says that their oath raises but a slight presumption. /3/
Moreover, a new mode of trial was growing up, which, although it was not made use of in these cases /4/ for a good while, must have tended to diminish the estimate set on the witness oath by contrast. This was the beginning of our trial by jury. It was at first an inquest of the neighbors [263] most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were selected by an officer of the court instead of by the interested party, and were intended to be impartial. /1/ Soon witnesses were summoned before them, not, as of old, to the case by their oath, but to aid the inquest to find a verdict by their testimony. With the advent of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear and leave no traces.
Taking into account the conservatism of the English law, and the fact that, before deeds came in, the only debts for which there had been a remedy were debts proved by the transaction witnesses, it would not have been a surprise to find the tender of suit persisting in those cases. But there was another reason still more imperative. The defence in debt where there was no deed was by wager of law. /2/ A section of Magna Charta was interpreted to prohibit a man's being put to his law on the plaintiff's own statement without good witness. /3/ Hence, the statute required witness--that is, the secta--in every case of debt where the plaintiff did not rely upon a writing. Thus it happened that suit continued to be tendered in those cases where it had been of old, /4/ and as the defendant, if he did not admit the debt in such cases, always waged his law, it was long before the inquest got much foothold.
To establish a debt which arose merely by way