“The wager of law has ceased, but many rules of practice and pleading, founded upon it, have survived, and have become rules of property, which cannot be now safely disturbed.... On the English law, it is clear that debt cannot be maintained in this case, as the testator might have waged his law, which none can do who defend in a representative character; hence it is that in the case of simple contracts, debt has been superceded by the action of assumpsit, in which, as the testator could not have waged his law, his executor is not deprived of any defense which might have been used by the testator.”
To this argument, Mr. Hoffman, for the defendant in error, argued, contra, that:
“In an action of debt by a merchant stranger, on any species of simple contract, the defendant was not permitted to wage his law. Even in those early times, the courts were strongly disposed to rescue commercial transactions and dealings from this species of trial, as may be seen by the intended operation of the statute de mercatoribus, and particularly in the case of foreign creditors, who, it was presumed, could not so easily obtain the requisite evidence, of their claims as resident merchants; and this may be seen in Godfrey and Dixon’s case.”[84]
And Mr. Justice Story, in disposing of the case, inter alia decided:
“Now, whatever may be said upon the question, whether the wager of law was ever introduced into the common law of our country by the emigration of our ancestors, it is perfectly clear that it cannot, since the establishment of the state of Tennessee, have had a legal existence in its jurisprudence. The constitution of that state has expressly declared, that the trial by jury shall remain inviolate; and the constitution of the United States has also declared that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Any attempt to set up the wager of law would be utterly inconsistent with this acknowledged right. So that the wager of law, if it ever had any legal existence in the United States, is now completely abolished. If, then, we apply the rule of the common law, to the present case, we shall arrive, necessarily, at the conclusion, that the action of debt does lie against the executor, because the testator could never have waged his law in this case.”[85]
And so Mr. Webster’s defense of the wager of law, to this action on this note, was held not to obtain, and he lost his case and his client was adjudged to pay the note of his testator.
If true that but “a hair divides the false and true,” it is little wonder that for centuries, in the struggle for right, immersed amid the darkness of the dawn of judicial procedure, an occasional false note should come down to us, through the centuries, from the pathetic drama wherein the individual was made to assert his right, upon the mere wager of law, instead of more accurate human standards to balance the scales of justice. Judged by our own environment, it seems that the quarrels of the Universe of old were gauged far too long by the erroneous standards used in the vain pursuit of This and That, about which the citizens of the past centuries endeavoured and disputed. And that with the institution of trial by jury, brought into existence in the middle ages, the wager of law would have much sooner become an obsolete form of procedure.
But in the continuance of the drama of human life, this prided institution of our twentieth century, may seem as crude and barbaric to the spectators viewing the show from the vantage of subsequent centuries, as this grotesque comedy of errors, known as the wager of law now appears to us, when we look back upon the judicial farce enacted by our ancestors, in the uncertain procedure of Law Wager. They seemed to wander “in and out, above, about, below,” yet ever missing the door which led to the correct ideal. They labored under new and strange conditions, however, and perplexed as they were with the many problems of the Human and Divine and intermingling the processes and procedures of the lay and ecclesiastical courts, as they did, it is perhaps to their credit that the old tangles of the law were solved as creditably as they were.
However this may be, in the Wager of Law we have but another “story from of old,” in connection with the perpetual struggle for right, which has followed man’s course down through the successive generations of the past.
FOOTNOTES:
[1] Bouvier’s Law Dictionary.
[2] 3 Bl. Comm. 341; Coke, Litt. 295.
[3] Exodus, XXII., 10.
[4] John’s “Babylonian Laws,” etc.
[5] 3 Bl. Comm. 341; Spellman, L. b. 28, c. 13; Stiernh., de jure Sueon, 1. l. c. 9.
The clergy were no doubt responsible for the establishment of the practice in England, as it resembles the canonical purgation of the clergy, as well as the sacramentum decisionis, of the civil law. (3 Bl. Comm. 342.)
[6] 3 Bl. Comm. 343; Cap. & Wilk. LL Anglo-Saxons.
[7] Coke, Litt. 295; 3 Bl. Comm. 343.
As the effect of the compurgators oath was the same as a verdict, this is the reason assigned by Coke and Blackstone, why eleven compurgators were required, under the old codes. 3 Bl. Comm. 343; Coke, Litt. 295; Glanville, Lib. l, c, 9x.
[8] I. Pollock and Maitland’s History English Law, p. 140.
[9] II. Pollock and Maitland’s History English Law, 600.
[10] Lea, “Superstition and Force,” (3 ed.) 35.
[11] II. Pollock and Maitland’s History English Law, 600.
It was also a custom for a long time, for the defendant to select his compurgators from the nominees of the injured person, and a case is recorded, as late as 1277, in Leicester, where this was required, but it was soon abolished as too onerous a task for an accused person. II. Pollock and Maitland’s History English Law, p. 636, note.
[12] Laws Wihtraed, cap. 16, 21; Lea, “Superstition and Force,” (3 ed.) 23.
[13] III. Reeve’s History English Law, 294.
[14] Glanville, Book I., chap. IX.
[15] Coke, Litt. 168b.
[16] Coke, Litt. 295a; 2 Inst., 44.
[17] Les Termes de la Ley, ad voc. ley.
[18] Bracton, 410a.
[19] Bracton, 366a; 410a.
[20] Ante idem.
[21] Bracton, fol. 366; Note Book, pl. 7, 1436.
[22] Note Book, pl. 731, 742.
[23] Note Book, pl. 396, 1097.
[24] Bracton, fol. 156; Note Book, pl. 477, 741.
[25] Somersetshire Pleas, pl. 572.
[26] Bracton, fol. 315b; Note Book, pl. 580.
[27] Note Book, pl. 184, 1574.
[28] 38 Edward III. st. l, c. v.
[29] III. Reeve’s History English Law, 184.
[30] 38 Edward III. st. l, c. 3.
[31] III. Reeve’s History English Law, 295.
[32] 28 Edward III. 100a; 29 Edward III., 44b; III. Reeve’s History English Law, 295.
[33] 47 Edward III., 18; III. Reeve’s History English Law, 295.
[34] 38 Edward III., 7a.
[35] Coke, Litt. 295.
[36] 3 Bl. Comm. 346.
[37] Coke, Litt. 295.
[38] 3 Bl. Comm. 346.
Wager of law was never required, in England, but was allowed, as a privilege to the defendant. Coke, Litt. 295.
[39] Mun. Gild. I., 56, 59, 90, 92; II. Pollock and Maitland’s History English Law, p. 635.
[40] Mun. Gild. I., 57; II. Pollock and Maitland’s History English Law, supra.
[41] Mun. Gild, ii, 321; II. Pollock and Maitland’s History English Law, p. 636.
[42] Palgrave, English Commonwealth, pp. 117. Lyons Dover, ii, 300, 315.
[43] III. Reeve’s History English Law, 567.
[44] This was by virtue of a statute of the reign of Henry IV. III. Reeve’s History English Law, c. xviii.
[45] III. Reeve’s History English Law, p. 568.
[46] 14 Henry VI., 24.
[47] 39 Henry VI., 18.
[48] 28 Henry VI., 4.
[49] Ante idem. III. Reeve’s History English Law, p. 569.
[50] 38 Henry VI., 14, 22.
[51] III. Reeve’s History English Law, 570.
Referring to the fact that wager of law was allowed in actions of debt and detinue and the attempt to demonstrate that this was because jury trials were inconsistent with the rights of the parties in these actions, Pollock and Maitland, in their History of English Law, show that the truth is that these actions are older than jury trials. (Vol. II., p. 634.)
[52] II. Pollock and Maitland’s History English Law, p. 636.
[53] Ante idem.
[54] Ante idem.
[55] 3 and 4 William IV., c. 42, sec. 13.
[56] Jur. Prov. Saxon. Lib. I., Art. 15, 18, 39.
[57] Lea, “Superstition and Force,” (3 ed.) 22, note.
[58] This protest against this procedure was in the Fifteenth century. Schilter. Thesaur, II., 291.
[59] Pike, History Crime, i, 130; Thayer, “Older Modes of Trial,” II. Essays in Anglo-American Legal History, p. 384.
[60] Jacob’s Review of the Statutes (2 ed.), 532.
[61] Anastas Biblioth. No. LXII.
[62] Gregor. Turon. Hist. Lib. V., cap. XLIX. The custom of acquitting oneself by swearing on different altars, was an old Anglo-Saxon practice, the plaintiff being allowed to substantiate his claim by oaths upon four altars, while the defendant could rebut the charge by oaths upon twelve altars. Dooms of Alfred, Cap. 33; Fleta, Lib. II., cap. lxiii, sec., 12.
[63] Spelman, Concil. I., 335.
[64] Lea, “Superstition and Force,” (3 ed.) 57.
[65] Ante idem., p. 61.
[66] Ann. Wint. 109; Wykes, 234; II. Pollock and Maitland’s History English Law, 636.
[67] Maitland’s Pl. Cr. i, case, 61; Palgrave’s Com. ii, cxix, note.
[68] Lyon’s History Dover, ii, 265; II. Essays in Anglo-American Legal History, 385.
[69] Year Book, 19 Henry VI., 10, 25.
[70] Year Book, 33 Henry VI., 7, 23.
[71] Cal. Proc. in Chan, i, ccxx-ccxxii. In Spence’s Equity Jurisprudence, this case is cited as one of the notable cases which finally helped to bring about the repeal of the law wager.
[72] Goldsborough, 51, pl. 13; Doctor and Student, ii, c. 24; Thayer’s “Older Modes of Trial,” II. Anglo-American Legal History, p. 388.
In the persecution of the reformers, in 1527, under Henry VIII., Margaret Cowbridge and Margery Bowgas were allowed to acquit themselves by the oaths of compurgators, although there were several witnesses against them, and the compurgators comprised several women in the test.
[73] Slade’s Case, 4 Rep. p. 95.
[74] Company of Glaziers’ Case, 2 Salk. 682.
[75] 12 Mod. 669, 684.
In Gunner’s case, in 1708, the plaintiff took a non-suit when the defendant was ready to wage his law. Jacob’s Review of the Statutes, (2 ed.) 532.
[76] London vs. Wood, 12 Mod. 669, 679. This opinion of Lord Holt, that wager of law would not lie, unless the debt was a secret debt, is based upon the law, as stated by Sir Edward Coke, for he says: “The reason wherefore, in an action of debt upon a simple contract, the defendant may wage his law, is for that the defendant may satisfy the party in secret, or before witnesses and all the witnesses may die.” (II. Inst, 45.) But of course this same plea of payment would be good, whether the debt arose on contract or in parole, and the same reason would obtain for perpetuating the testimony, and this illustrates how an erroneous custom will live upon irrational doctrines.
[77] 12 Mod. 669.
[78] 12 Mod. 669.
[79] I. B. & P. (N. P.) 297.
[80] 2 Barnew & C. 538; 4 D. & R. 3.
[81] V. Harvard Law Review; II. Essays in Anglo-American Legal History, 391.
[82] King vs. Williams, 2 Barnew. & C. 538; 4 D. & R. 3.
[83] 8 Wheaton, 642; 21 L. Ed. 705.
[84] Palmer’s Rep. 14; Fleta, 136.
[85] 8 Wheaton, 675; 21 L. Ed. 713.
Compurgation was allowed in a charge of usury, by statute in Massachusetts, in 1783. (St. Mass. 1783, c. 55.) But in Little vs. Rogers, (1 Met. 108) Shaw, C. J., observes that the trial by jury has been “substituted for the old trial by oath.”
Mr. Lea, in his excellent work, “Superstition and Force” (3 ed.) mentions the fact that in South Carolina, an act of the Legislature of 1712 mentions specific English laws as still in force and enumerates the law of compurgation, or wager of law, and that in Maryland, as late as 1811, Chancellor Kilty mentions the fact that wager of law has gone into disuse, because contrary to our spirit of law, but does not contend that it had then been specifically abolished, in Maryland. (Cooper’s Stat. at L. of So. Car. Columbia, 1837, II., 403; Kilty’s Report on English Statutes, Annapolis, 1811, p. 140; Lea, “Superstition and Force,” p. 81.)