Having been present at the bargain, the witnesses were able to swear to what they had seen and heard, if any question arose between the parties.  Accordingly, their use was not confined to disposing of a charge of felony.  But that particular service identifies the transaction witnesses of the Saxon period.  Now we know that the use of these witnesses did not at once disappear under Norman influence.  They are found with their old function in the laws of William the Conqueror. 1 The language of Glanvill seems to prove that they were still known under Henry II.  He says that, if a purchaser cannot summon in the man from whom he bought, to warrant the property to him and defend the suit, (for if he does, the peril is shifted to the seller,) then if the purchaser has sufficient proof of his having lawfully bought the thing, de legittimo marcatu suo, it will clear him of felony.  But if he have not sufficient suit, he will be in danger. 2 This is the law of William over again.  It follows that purchasers still used the transaction witnesses.

But Glanvill also seems to admit the use of witness to establish debts. 1 As the transaction witnesses were formerly available for this purpose, I see no reason to doubt that they still were, and that he is speaking of them here also. 2 Moreover, for a long time after Henry II., whenever an action was brought for a debt of which there was no written evidence, the plaintiff, when asked what he had to show for it, always answered “good suit,” and tendered his witnesses, who were sometimes examined by the court. 3 I think it is not straining the evidence to infer that the “good suit” of the later reports was the descendant of the Saxon transaction witnesses, as it has been shown that Glanvill’s secta was. 4

Assuming this step in the argument to have been taken, it will be well to recall again for a moment the original nature of the witness oath.  It was confined to facts within the witnesses’ knowledge by sight and hearing.  But as the purposes for which witnesses were provided only required their presence when property changed hands, the principal case in which they could be of service between the parties [258] to a bargain was when a debt was claimed by reason of the delivery of property.  The purpose did not extend to agreements which were executory on both sides, because there no question of theft could arise.  And Glanvill shows that in his time the King’s Court did not enforce such agreements. 1 Now, if the oath of the secta could only be used to establish a debt where the transaction witnesses could have sworn, it will be seen, readily enough, how an accident of procedure may have led to a most important rule of substantive law.