references to what a promisor was to have for his undertaking was in the action of assumpsit. But the doctrine certainly did not originate there.The first mention of consideration in connection with equity which I have seen is in the form of quid pro quo, and occurs after the requirement had been thoroughly established in debt. The single fact that a consideration was never required for contracts under seal, unless Fleta is to be trusted against the great weight of nearly contemporaneous evidence, goes far to show that the rule cannot have originated on grounds of policy as a rule of substantive law.And conversely, the coincidence of the doctrine with a peculiar mode of procedure points very strongly to the probability that the peculiar requirement and the peculiar procedure were connected.It will throw light on the question to put together a few undisputed facts, and to consider what consequences naturally followed.It will therefore be desirable to examine the action of debt a little further.But it is only fair to admit, at the outset, that I offer the explanation which follows with great hesitation, and, I think, with a full appreciation of the objections which might be urged.
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. 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 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 had required the election of a certain 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.
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. 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. 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. 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. 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. 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. 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'
