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.
Public-domain text, read in full here on John Shaqi.
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