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.
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