CHAPTER VII.

WAGER OF LAW.

Wager of law, in ancient England, was the practice whereby the defendant was allowed to make oath denying the charge of the complainant and supporting his oath by the oaths of a certain number of his friends or neighbors.[1]

The term _wager of law_, comes from the Roman law _vadiatio legis_, from the defendant being put in pledges (_vadios_), to make oath on the day appointed.[2]

The practice is traceable to the Mosaic law which provided that:

“If a man deliver unto his neighbor an ass, or an ox, or a sheep, or any beast, to keep; and it die, or be hurt, or driven away, no man seeing it; then shall an oath of the Lord be between them both, that he hath not put his hands unto his neighbors’ goods; and the owner of it shall accept thereof, and he shall not make it good.”[3]

Under the Mosaic law, the rule of practice which now obtains in criminal cases, that the good character or reputation of the defendant is always proper for him to offer, in his own defense, upon the issue of the likelihood of his commission of a crime, was extended to include his right to actually acquit himself of the debt or other cause of action by his own oath, for if he would absolutely swear himself not chargeable and was a person of good reputation, he stood acquitted of the charge, in order to prevent an innocent man from being overcome by a multitude of false witnesses.

This method of procedure, or similar practices obtained in ancient Babylon,[4] among the Romans and the northern nations, adjacent to the Roman Empire, as well as among the ancient Israelites.[5]

He who waged his law, under the old Saxon procedure, brought with him, into court, eleven of his neighbors, for by the constitution entered into as a league between Alfred and Guthrun, the Dane, a man’s credit, in a court of law, depended upon his reputation among his neighbors, touching his veracity.

The defendant who pleaded _nil debit_, or denied the charge against him, usually concluded his answer with the plea containing the formula:

“And this he is ready to defend against him, the said A. B. and his suit, as the court of our Lord, the King, shall here consider,” _etc._

He was then placed under surety to _wage his law_, on a day appointed by the judge and on the day named the defendant, in open court, took his oath, which was also confirmed by the oaths of eleven of his neighbors, called compurgators.

The defendant stood at the end of the bar and was solemnly admonished by the judge of the nature and danger of a false oath and if he persisted, he repeated an oath like the following:

“Hear this, ye justices, that I do not owe unto A. B. the sum of ten pounds, nor any penny thereof, in manner and form as the said A. B. hath declared against me, so help me God.”[6]

And thereupon his eleven compurgators avowed, upon their oaths, that they believed, in their consciences, that he saith the truth.

The oath, therefore, of the defendant, himself, was _de fidelitate_, or on his fidelity, and the eleven compurgators testified _de credulitate_ or upon their belief in his integrity.[7]

These oaths had the legal effect of a verdict for the defendant, in all actions of debt, on a simple contract, or in actions of detinue, but the defense was not allowed to persons who did not enjoy a good reputation among their neighbors.

The compurgators acted rather in the capacity of jurymen than as witnesses, for they swore to their belief, not to what they actually knew. In other words, when the accused made oath of his innocence or denied the charge filed against him, they swore that they believed he was swearing the truth. Yet they differed from jurymen in many important particulars. The jury was summoned by a public officer and took an oath to tell the truth, whatever the truth might be—for jurymen then did not sit in trial of issues as today—while the oath helper—or compurgator, merely took an oath to testify to the truth of his principal’s oath.[8]

There is authority for the proposition that in the earliest times, the oath-helpers were necessarily kinsmen of the defendant.[9] The only obligation recognized by a defendant in either a civil or criminal case was to the injured party and no responsibility was predicated upon a duty owing to the state or to society at large. With the family as a unit, the person charged with a crime could summon his family to repulse an armed attack by the injured person and so he took them with him to the court, to defend him by their oaths.[10] When a person was accused of a crime sufficient to result in a blood-feud, his kinsmen were vitally interested in his acquittal and it is but natural that they proffered their help as oath-helpers for him, but in due course of time, the relatives alone were not required and the compurgators rather assumed the character of disinterested “character witnesses,” such as we see today, in all criminal cases, except that instead of swearing merely to the good reputation of the defendant, these compurgators made oath of their firm belief in his oath of innocence of the charge filed against him or of the cause of action set up by the injured party.[11]

By the laws of Wihtraed,[12] in the seventh century, the king or a bishop could rebut an accusation by his own simple asservation, and the thane or priest by the simple oath, while the laity generally were required to undergo the formal procedure of waging their law by the regular number of compurgators.

Mr. Reeves, in his History of English Law, says that Glanville does not mention the wager of law, as a mode of proof for the defendant in civil suits,[13] but in this the author must have meant to limit the statement to defenses only, for Glanville expressly describes the proceeding by the tenant, wherein he observes:

“If he should deny all the summonses, he shall, as to each of them individually, corroborate his denial with the oaths of twelve. Should it happen on the day appointed that either of the compurgators fail, or should the person of either of them be justly excepted to, and the vacancy occasioned by either of these circumstances not filled up, the tenant shall, on account of his default, immediately lose his seisin. But, if the tenant thus completely disprove the summonses, he shall, on the same day, answer to the action.”[14]

According to Sir Edward Coke, any one who waged his law, in a court of record, prior to _Magna Charta_, in England, was required to bring with him _Fideles Testes_,[15] and this learned author intimates that the number of compurgators was eleven, besides the principal,[16] while the author of “_Les Termes de la Ley_,” in describing the same ceremony, expressly states that the number of compurgators was twelve.[17]

Bracton advises us that it was not necessary that the compurgators should be of the same rank as the principal, provided they were trustworthy citizens,[18] and, when treating of the wager of law, in actions by tenants, he states that the land was not to be taken out of the tenant’s possession before the tenant had waged his law, nor if he failed in waging it.[19] And he states that the tenant could not wage his law by means of an attorney, constituted for that purpose, but was allowed to urge this plea, only by and through himself, personally.[20]

In Bracton’s day, wager of law was the normal mode of defense and it was then the ordinary procedure for establishing that one had never been lawfully summoned to appear in court;[21] that a defendant had not deprived a guardian of the lawful possession of his ward;[22] that the defendant was not guilty of a breach of a covenant;[23] that the defendant had not wrongfully detained or distrained the plaintiff’s cattle or other animals,[24] and during this period it was even allowed by way of defense in an action of trespass.[25]

According to Bracton, however, compurgation was not allowed to dispute evidence of offenses which were apparent to the senses, such as waste, which could be observed, as a physical condition, by any man, for if compurgation were allowed in such cases, the oath of compurgators would be allowed to overcome the evidence of our senses, which would place a premium on perjury and destroy the best evidence by mere secondary proof.[26]

The wager of law was not confined entirely to the defendant, however, for according to this author, if the defendant set up an affirmative defense, the plaintiff, by way of reply, was allowed to deny the affirmative defense and to establish his avoidance of the special defense pleaded by the aid of oath-helpers.[27]

During the reign of Edward III., the right of a defendant to wage his law, was guaranteed in all cases where the right existed in the time of Edward I., the object of the statute being that “many people were grieved and attached by their bodies in the city of London, at the suit of citizens, surmising that they were debtors, and could be proved so by their papers, though they had no deed or tally to produce them,” it was therefore enacted that “every man should be received _to his law_, by people of his condition against such papers, and the creditor should not put the party to plead to the inquest unless he chose,”[28] so the wager of law was thus preserved to the citizens of London, against mere papers, or verbal testimony as firmly as it was previously practiced in the common law courts.[29] But it was provided by statute, during the same reign, that the fines payable before the justices, should be in the presence of the pledges, in all cases, civil or criminal, and the pledges were to be advised of the sum of the fine, before they departed.[30]

The law wager did not seem to be settled so securely that there was no doubt left, of the cases in which it would lie and those wherein it could not be invoked, in this reign, however, for while a defendant was denied wager of law, against his written obligation,[31] he was allowed to wage his law, in a suit on a deed, by the plea of non-summons, in the same manner that such plea had long been used.[32] It was allowed against a receipt, alleged to be by the hand of another than the defendant,[33] and in detinue of charters it was allowed,[34] although the charters related to the freehold and ought to be equally as binding upon a defendant as an obligation creating an action of debt.

Wager of law was allowed in all cases where voluntary credit had been extended to the defendant, upon the theory that by giving him credit the plaintiff had estopped himself from denying that he was a man of good reputation, but wager of law was not permitted in charges created against the defendant by the law, for no man was allowed to thus swear away an obligation imposed by the law of the land.[35]

It was denied in cases of contempt, trespass, fraud or deceit, or for damages for any injury with force; executors and administrators were not allowed, upon grounds of public policy, to deny under oath the obligations of their testators, since no man could safely wage law of another’s contracts; the king had certain prerogatives, which prevented the wager of law, in actions by him, as all wagers of law naturally reflected upon the honesty of the plaintiff, so wager did not obtain in actions by the king.[36]

And since the wager of law only obtained in favor of those who bore a good reputation for veracity, one who had been outlawed, or attainted for any felony, or one who had become infamous, or who had pronounced the horrible word, _craven_, in a trial by battle, was denied his wager of law.[37]

And under the old practice, since infants, or those under twenty-one years were not admitted to take oaths, they were also denied the wager of law, but a married woman was allowed the defense, when sued jointly with her husband and it extended in favor of an alien, who was to be sworn in his own language.[38]

In the thirteenth and fourteenth centuries compurgators were allowed, even in the most serious charges of felony, in England, on the part of a defendant. According to the London custom, in the “great law” used in murder cases, the defendant was required to swear six times, with six compurgators for each oath; in the “middle law,” used in charges of mayhem, three oaths, each backed by six oath-helpers, satisfied the law, and in “the third law,” used in the smaller offenses, a single oath, corroborated by six helpers, satisfied the law.[39]

In course of time the “great law” was found to be so onerous that the rule requiring six separate compurgators to as many separate oaths by the defendant was relaxed, so as to allow him to make his compurgation by one oath, supported by thirty-six helpers, but if any one of these failed to support his oath, he was hanged.[40]

And by the last of the fourteenth century even when charged with the capital crime of murder, a citizen liable under the “great law,” which formerly required him to make his compurgation by thirty-six oath-helpers, was allowed to either make his compurgation in this manner, or, at his election, to go to trial before a jury of twelve men, for by this period the trial by jury was beginning to take its place as one of the fixed institutions in the administration of the criminal law of England.[41]

The trial by oath-helpers, even in murder cases, was not speedily superceded by the trial by jury, however, for as late as the fifteenth century, according to Palgrave, purgation with thirty-six oath-helpers, was allowed at Winchelsea and in other jurisdictions subject to the English common law.[42]

By the time of Henry VI., we find the cases in which wager of law was allowed still open to much discussion. It was recognized in actions of debt and detinue[43] and in the action of account, it came to be the custom for the justices to examine the attorney for the plaintiff and other persons and to allow or refuse the wager of law to the defendant,[44] accordingly as the account was found to be an account stated in the presence of auditors, in which case it was not allowed, or an account not taken in the presence of auditors, where the wager was held to obtain.[45] The theory of denying the wager to cases where an account was had in the presence of auditors was that such an account arose to the dignity of an obligation admitted before competent judges.[46]

A defendant sued upon a debt for board and lodging was denied his law,[47] but Justices Priscott and Needham, decided, near the end of the reign of Henry VI. that wager of law would lie in an action for board and lodging, if the plaintiff had it in his power to furnish the board or lodging at his own volition and not upon compulsion,[48] but if the defendant had been imprisoned in the Tower and the board and lodging was furnished by force of the obligation of common humanity, this would so far deprive the plaintiff of his option of furnishing the board and lodging, as to make him a creditor of such merit as to deprive the defendant of his wager of law.[49]

Where persons were compelled to serve by the statute of laborers, such as plowmen, shepherds, and all servants of husbandry, in an action for wages, the defendant was not allowed his wager of law, because the plaintiff had no option to refuse the service, but in cases where the service was not compulsory, wager of law would lie.[50]

And upon the theory that an attorney could be compelled by the judges of the common pleas court to render faithful service to his client and was not allowed to refuse such service, we find that Chief Justice Fortescue decided, during this reign, that in an action by an attorney for services rendered in such a court, no wager of law would lie on the part of defendant.[51]

By the middle of the fifteenth century, in England, the wager of law in criminal cases had begun to fall into disuse, for the method followed in such trials, at Westminster, was such that professional oath-helpers were customarily used and such professional swearers necessarily debased the wager of law in criminal cases.[52] And in the courts of the country districts it got to be a very easy matter for a citizen of bad repute to produce his oath-helpers, and his neighbors were afraid to negative the oaths of men who were frequently too desperate to thus antagonize,[53] and this led to a gradual preference for the trial by jury, in criminal cases, both on the part of the person accused of crime and by the general public, who came to regard the wager of law, in such cases, with odium.[54]

Long before its repeal, by statute, the old defense had fallen into disuse, and in 1833, by 3 & 4 William IV.,[55] the wager of law was finally abolished in England, and compurgation in the ecclesiastical courts was abolished during the reign of Queen Elizabeth.

While this irrational procedure obtained in England, the accused in the gravest criminal charges, could avoid punishment, regardless of the notorious character of his crime, without being confronted with evidence of his guilt, if he was able to find compurgators who would testify to their belief in his innocence.[56] And while he could not invoke this procedure in a case of theft, if the stolen goods were found upon his person, or he had been previously convicted, in all other offenses, he was at liberty to thus acquit himself, by means of his oath-helpers,[57] and this favorable procedure for the criminals continued long after its abuses were set forth and denounced in the Council of Bale,[58] in municipal and ecclesiastical courts, although in the king’s court, in criminal cases of the graver sort compurgation is said to have disappeared in consequence of what has been styled “the implied prohibition” of the Assize of Clarendon, in 1166.[59] But the statute of Elizabeth (38 Elizabeth, 3, 5), shows that the wager was in common use in 1596, in actions of debt upon simple contracts.[60]

Turning to some of the instances where the oaths of compurgators, or the wager of law, as known under the old procedure, was utilized to acquit the accused of charges, either in the ecclesiastical or lay courts of old England, we find, in the sixth century, that Pope Pelagius I., when confronted with charges that he was concerned in the troubles which drove his predecessor into exile, exculpated himself, by his oath, taken in the pulpit, while holding the crucifix above his head, denying any implication in the affairs that had resulted in the disgrace of his predecessor.[61]

And when Gregory of Tours was arraigned for the use of words which seriously reflected upon Fredegonda, before a Council of Bishops, it was decided that he should acquit himself of the charge by oaths upon three separate altars, which in due time, the accused performed to the complete satisfaction of the Council.[62]

In the dispute which arose, in 824, between Hubert, bishop of Worcester, and the abbot of Berkeley, in regard to the monastery of Westbury, the issue was settled by the oath of bishop Hubert, supported by fifty priests, ten deacons and a hundred and fifty other clerks and ecclesiastics.[63]

Again, the bishop of Trent, when accused of simony, was ordered by Pope Innocent II. to clear himself with the oaths of two bishops and three abbots or monks, a course that was followed by the accused, to the complete satisfaction of his superiors in the church.[64]

Compurgation was, indeed, for many centuries the common procedure whereby Churchmen, when accused of simony, or other irregularities, cleared themselves of the charges filed against them, and it seemed almost invariably an easy task to find other brothers of the order willing to stand by the accused and render him the assistance of an oath in the belief of his innocence, perhaps because of the frequency of such charges and the uncertainty of the future and that necessity might place the compurgators in a position where they might desire the reciprocal service, rendered to their unfortunate companion.[65]

In the thirteenth century the earl of Warenne, or his men, slew Alan de la Zouche, in Westminster Hall, in the presence of the king’s justices. He was allowed to escape with his compurgators’ aid, according to the rule then obtaining, by his own oath, supported by the oaths of twenty-five knights, that the deed was not done with malice aforethought, or in contempt of the king, but under the heat of passion and under such circumstances as to reduce the offense to simple manslaughter.[66]

In the Bedfordshire eyre, of the year 1202, in a prosecution under the statute for selling beer under a false measure, the defendant when placed upon her trial, claimed the right of compurgation and was ordered to defend herself “twelve handed” and she met the demand of the court by the offer of her compurgators.[67]

In April, 1435, Agnes Archer was indicted for the alleged murder of Alice Colynbourgh, at Winchelsea, whom she was charged with having stabbed five times in the throat, with a knife. The defendant, when arraigned for this crime entered a plea of not guilty, by declaring, as the report of the case records it: “I am not guilty of thoo dedys, ne noon of hem, God help me so.” And when interrogated by the Judge as to how she would acquit herself of this charge, she replied: “By God and by my neighbors of this town,” so the charge being one which brought the case within the rule of the “Great Law,” she was required to acquit herself by the oaths of thirty-six compurgators.[68]

In 1440, in a suit for board and lodging furnished the defendant by the plaintiff, one Counselor, Yelverton, for the plaintiff, contended that the defendant was not entitled to his wager of law, in this action, but the justices held that wager of law would lie in a suit for board and lodging.[69]

During the reign of Henry VI., in the year 1454, quite a memorable legal battle was waged concerning the right of a defendant, in a real action, to wage his law upon a plea of non-summons. The plaintiff demurred to this plea and the justices were divided upon the propriety of recognizing the plea. Chief Justice Priscot and his associates, Danvers and Danby, overruled the demurrer to this plea, holding that the defendant could urge his wager of law in a real action, while admitting that the practice had been otherwise. The minority of the court, however, dissented from this view, much as the minority frequently dissent in modern times and Moile and Ayshton earnestly pressed their views upon the majority of the court, for the reason that, “All our law is directed by usage or statute; it has been used that no one wages his law in trespass, and the contrary in debt; so that we should adjudge according to the use.”[70]

In the year 1492, one Sebastian Giglis complained to the Chancellor against Robert Welby, that complainant had persuaded a third party to advance a certain sum of money to Welby, who promised to repay the loan and then when he was sued therefor, by the creditor, he had waged his law and the result was that complainant had been compelled to pay the loan, so advanced, at his instance, to Welby. In his answer to this plea, Welby admitted the loan, but set up that he had procured the money for King Richard III., who had received and used the money and that the receipt given was a mere memorandum of the transaction, but not under seal, and he attempted to wage his law to this debt. The court refused to recognize the wager of law in this case, but held that in as much as the plaintiff had paid the debt for money had and received by the defendant, and since the defendant admitted the debt, and the receipt of the money, it was immaterial that he had given it to another, and adjudged that he should pay the plaintiff, and that no wager of law would lie in such a case.[71]

In the year 1587 the Star Chamber refused to entertain a criminal charge of perjury against a man who was charged with having perjured himself in waging his law, in a prior proceeding. The Lord Chancellor rather dissented from the decision of the majority of the judges and asked if the effect of the wager, based on perjury was to discharge the debt sued for. The judges answered that it was, Manwood, C. B., maintaining that it was because of the plaintiff’s folly, in sueing for debt, rather than upon an assumpsit, wherein wager of law would not lie.[72]

In his report of Slade’s case, in 1602, Sir Edward Coke remarked that the court would not allow a man to wage his law, until the court had admonished both the principal and the compurgators and upon due examination as to their qualifications and the merits of the cause, in order to ascertain if the case was one wherein wager of law was allowable.[73]

Several cases came before Chief Justice Holt, during the latter part of the seventeenth century and some of the cases, which have been noted, will be briefly referred to.

In the Company of Glazier’s Case, which arose in 1699, the Company sued in an action of debt and the defendant waged his law. Counselor Northey appeared for the Company and when the defendant appeared with his compurgators, he insisted that if he swore falsely, the court did not have to receive his wager of law, but to this contention, Chief Justice Holt replied: “We can admonish him, but if he will stand by his law, we cannot hinder it, seeing it is a method the law allows.” Plaintiff’s counsel then insisted that such a holding would be a dangerous precedent, because it would have the legal effect of compelling litigants sueing in debt, to extend the practice of sueing upon an assumpsit still further, but the doughty Chief Justice replied to this argument that “We will carry them no further,” so the wager of law was received, because it was a “method the law allows.”[74]

The Chief Justice practically reversed his holding in the Company of Glazier’s Case, two years later, however, for in exactly the same kind of an action of debt, arising on a by-law, in London vs. Wood, the court refused to entertain the defendant’s plea of wager of law, remarking that the plaintiff’s counsel in the Company of Glazier’s Case (Northey), had yielded too much—although he seemed to do all that an earnest counsel can do, to urge his plea and then except to the court’s action, when it is overruled—in characterizing that decision, the court observing that “It was a gudgeon swallowed and so it passed without observation,” meaning that a bad precedent had been recorded because not strenuously enough objected to.[75]

In this case, the action was on a city by-law, for the penalty provided for the refusal of the defendant to serve as sheriff. According to the custom of London, the defendant offered to wage his law, with six good and reputable compurgators, but to this plea the plaintiff demurred, and in considering the issue of law, on the question of the right of the defendant to wage his law, in such an action, Baron Hatsell reviewed the older decisions bearing upon the defense of wager of law and maintained that it would lie in five certain cases only, “first, in debt on simple contract, which is the common case; secondly, in debt upon an award, upon a parole submission; thirdly, in an account against a receiver; fourthly, in detinue, and fifthly, in an amercement in a court baron, or other inferior court, not of record.”

Lord Holt repudiated the reasoning which limited the Wager to any specific classes of actions, but maintained that the wager could only be made to depend upon other distinctions, growing out of the very nature of the cause of action and not the mere class to which it might belong.

In the course of his opinion in this celebrated case, he observed:

“This is the right difference, and not that which is made in the actions, viz., that it lies in one sort of action and not in another; but the true difference is when it is grounded on the defendant’s wrong; ... for if debt be brought, and the foundation of the action is the wrong of the defendant, wager of law will not lie.... The secrecy of the contract which raises the debt is the reason of the wager of law; but if the debt arises from a contract that is notorious, there shall be no wager of law.”[76]

The great Chief Justice was far too independent to be bound by the dictum of some previous case, which did not commend itself to him, according to the touchstone of reason or logic. He had a naturally inquiring mind and sought to go deep into the mysteries of things. Refused credence to the absurd or allegiance to an arrogant authority and was too broad to be bound by mere doctrine, but of course could only judge according to the standards of his time.

This decision marks the trend of judicial thought of the period to further limit and deny the wager of law, because of the fact that it was becoming to be considered contrary to the prevalent sense of right of the great mass of citizenship, to permit one who was sufficiently elastic in his conscience, to swear away the debt or obligation of another, just as formerly it had come to be regarded as wrong to permit the accused in a criminal case, to set aside the public law which he had violated, by means of the oaths of compurgators.

During the age of Bracton, the defendant, who was incarcerated in jail and attempted to deny the obligation for his board and lodging, by the wager of law, was held incompetent to wage his law, in such a case, because it was counter to reason to permit one to be thus defeated of an obligation which he had recognized, based upon feelings of common humanity.

In this opinion of Lord Hort, it was counter to his idea of right, in the case of London vs. Wood,[77] to permit the wager of law, to avoid an obligation which was not merely secret, but notorious and where the recognition of the right to wage law, would result in a wrong upon the other party. The real reason for this limitation of the right, however, was that the procedure itself was wrong and the common sense of the nation was becoming aware of the fact and thus the courts for one reason or another, reached the conclusion that this or that case was not one wherein the right could be recognized, when, as a matter of fact, with the growing popularity of the right of trial by jury, this old procedure was eternally at war, since the former institution was based upon the disinterested judgment of impartial men, who were assembled to carefully weigh the issues and pass judgment according to the right, whereas, in the other procedure interested men, through the influence of friendship or other ties, were led to approve the course of a neighbor or a friend, however wrong his object might be, and assist him by the corroboration of his oath.

A century after this leading case of London vs. Wood,[78] however, in which Lord Holt and Baron Hatsell differed as to the reasons why the right to wage his law should be denied to the defendant in that case, the right was recognized in England, although not expressly enforced by the court. In 1805, the case of Barry vs. Robinson,[79] came before the English Court of Common Pleas and the Counsel for the plaintiff in his presentation of his client’s cause before the court, said: “If a man were now to tender his wager of law, the court would refuse to allow it,” as the counsel considered that this procedure was entirely obsolete at that period. But the reporter of this case, however, advises us that to this statement of counsel, the court demurred, or, in the language of the Reporter, “This was denied by the court.”

The last recorded case wherein this old defense was attempted in England was in the year 1824, in the case of King vs. Williams,[80] but as Professor Thayer observes, in his “Older Modes of Trials,”[81] the wager of law at this time was “a discredited stranger, ill considered.” This was an action of debt, upon a simple contract, a case wherein the wager of law clearly applied, under the old practice. The defendant pleaded “_nil debet per legem_.” Counselor Langslow appeared for the defendant and after filing this plea, asked the court to assign the number of compurgators, for the reason that “The books leave it doubtful and this species of defense is not often heard of now.” This requested rule, to assign the number of compurgators to the defendant was refused by Abbot, C. J., who observed: “The court will not give the defendant any assistance in this matter. He must bring such number of compurgators as he shall be advised are sufficient.” This, upon the theory that everyone is presumed to know the law and that the court would not assist a litigant in the perpetration of a wrongful act, although it might be presented in the robe of regularity, was good enough. But according to the ancient report of this case, even as Banquo’s ghost dispelled the banqueters, when it was apparent to Macbeth’s fervid imagination, so this recourse to the old obsolete wager of law, which allowed an adversary with his friends to swear his opponent out of court, caused the plaintiff in this case to abandon his cause, for we are advised that: “The defendant prepared to bring eleven compurgators, but the plaintiff abandoned the action.”[82]

Wager of law was several times invoked in the courts of the United States and we find that the Supreme Court considered the nature and limitations of the practice, as late as the year 1823, in the case of Childress, plaintiff in error, vs. Emory and McCleur,[83] wherein Mr. Webster, attorney for the plaintiff in error, in a suit on a note, urged before the court that

“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.)