It was observed a moment ago, that, in order to recover against a defendant who denied his debt, the plaintiff had to show something for it; otherwise he was turned over to the limited jurisdiction of the spiritual tribunals. 4 This requirement did not mean evidence in the modern sense.  It meant simply that he must maintain his cause in one of the ways then recognized by law.  These were three, the [255] duel, a writing, and witnesses.  The duel need not be discussed, as it soon ceased to be used in debt, and has no bearing on what I have to say.  Trial by writing and by witnesses, on the other hand, must both be carefully studied.  It will be convenient to consider the latter first and to find out what these witnesses were.

One thing we know at the start; they were not witnesses as we understand the term.  They were not produced before a jury for examination and cross-examination, nor did their testimony depend for its effect on being believed by the court that heard it.  Nowadays, a case is not decided by the evidence, but by a verdict, or a finding of facts, followed by a judgment.  The oath of a witness has no effect unless it is believed.  But in the time of Henry II. our trial by jury did not exist.  When an oath was allowed to be sworn it had the same effect, whether it was believed or not.  There was no provision for sifting it by a second body.  In those cases where a trial by witnesses was possible, if the party called on to go forward could find a certain number of men who were willing to swear in a certain form, there was an end of the matter.

Now this seems like a more primitive way of establishing a debt than the production of the defendant’s written acknowledgement, and it is material to discover its origin.

The cases in which this mode of trial was used appear from the early books and reports to have been almost wholly confined to claims arising out of a sale or loan.  And the question at once occurs, whether we are not upon traces of an institution which was already ancient when Glanvill wrote.  For centuries before the Conquest Anglo-Saxon law 1 had required the election of a certain [256] number of official witnesses, two or three of whom were to be called in to every bargain of sale.  The object for which these witnesses were established is not commonly supposed to have been the proof of debts.  They go back to a time when theft and similar offences were the chief ground of litigation, and the purpose for which they were appointed was to afford a means of deciding whether a person charged with having stolen property had come by it rightfully or not.  A defendant could clear himself of the felony by their oath that he had bought or received the thing openly in the way appointed by law.