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 of promise or acknowledgment, and for which there had formerly [264] been no mode of trial provided, you must have a writing, the new form of proof which introduced it into the law.  The rule was laid down, “by parol the party is not obliged.” 1 But the old debts were not conceived of as raised by a promise. 2 They were a “duty” springing from the plaintiff’s receipt of property, a fact which could be seen and sworn to.  In these cases the old law maintained and even extended itself a little by strict analogy.

But the undertaking of a surety, in whatever form it was clothed, did not really arise out of any such fact.  It had become of the same nature as other promises, and it was soon doubted whether it should not be proved by the same evidence. 3 By the reign of Edward III., it was settled that a deed was necessary, 4 except where the customs of particular cities had kept the old law in force. 5