Wager of Law

A wager of law is essentially a character reference by, initially kin and later neighbours (in the same region as the defendant), often 11 or 12 men, and was a way to give credibility to the oath of a defendant at a time when the wager of law had more credibility than account books. Compare to legal wager, which is the provision of surity at the beginning of legal action to minimize frivolous litigation.

Wager of Law, Wager of Battle, Trial by Ordeal

The wager of law, also called compurgation, is an old legal practice, dating back to Saxon and feudal times, which was contemporaneous to the appeal to God to prove fact by trial by battle (wager of battle, trial by combat, or judicial dual), and of trial by ordeal.^[1]

Surity as Variation

A variation was for the defendant to give gage, or sureties, in an action of debt, and "that at a certain day assigned he would take a law, or oath, in open court, that he did not owe the debt, and at the same time bring with him eleven neighbors (called compurgators), who should avow upon their oaths that they believed in their consciences that he spoke the truth" (see the Tractatus of Glanvill, ca. 1188).

Determining Fact

Wager of law was replaced by jury, from early times, to determine fact, at a time when judges managed legal procedure, and did not determine fact. Trial "by lawful Judgment of his Peers, or by the Law of the Land (legus terrae)" Cap. 29 of the Magna Carta 1215 to 1297.^[2]

Wager of law was practiced in England and the US until the 16th century in criminal matters and into the 19th century in civil matters.

Supporting Defendant's Oath

A defendant who elected to "make his law" was permitted to make a statement before the court, swear an oath that it was true, and present one or more individuals, often 12, who swore that they believed he had told the truth under oath. This was the predominant form of defense in the feudal courts, and it persisted for a time in the common-law courts. "[T]hey did not testify about the fact itself and, indeed, might have no personal knowledge concerning it. The value of a man’s oath might vary with his status; sometimes it was necessary for a defendant to meet a charge by assembling oaths of a prescribed monetary value. Because oath making often had religious implications for those who served as oath helpers and because there was also a possibility of legal sanctions (penalties), individuals might refuse to give oaths for persons with bad reputations. One reason for the long survival of the practice was that" wagers in law "were often considered better evidence than account books in cases of debt."^[3]

Kin and Neighbour

"It had originated in Anglo-Saxon England in the ties of kinship that bound people together in the period before the year 1000, a time when each man was responsible for the acts of his blood relatives. Later, kinship gave way to a more tribal affiliation and a loyalty to the place of one's birth. When disputes more often than not led to violence, it seemed natural that neighbors would band together. They aligned themselves with a neighbor who was accused in court and swore that in good conscience they believed he was telling the truth. The number of oath-helpers required depended on the defendant's rank and the character of the lawsuit. Eventually it became standard practice to bring eleven neighbors into court to swear for the defendant. The oath-helpers were called compurgators, and the wager of law was called compurgation. As the kings consolidated their power, suppressing violence and increasing the authority of the courts, the wager of law lost some of its ancient power and became a Nuisance to litigants, who suspected that it frequently opened the door to false swearing. Different Forms of Action developed that did not permit the wager of law as a defense, and plaintiffs used them as much as possible. The procedure of wager of law had long since been obsolete when it was abolished during the reign of Henry IV (1399–1413)".^[4] Different authorities give different dates and eras for the end of wager of law according to jurisdiction and strength of repeal.

Abolition of Wager of Law

"Trial by ordeal was abolished by order of the Lateran Council of 1215. Trial by battle and wager of law were not formally abolished until 1819 and 1833, respectively."^[1]

Wager of law survived to recent centuries, and in many jurisdictions has been abolished by statute. An example of this is the Queensland Common Law Practice Act 1867, s 3.,^[5] which makes direct reference to the abolition of wager of law.

From 1911 Encyclopedia Britannica

The procedure in a wager of law is traced by Blackstone to the Mosaic law, Ex. xxii. 10; but it seems historically to have been derived from the system of compurgation, introduced into England from Normandy, a system which is now thought to have had an appreciable effect on the development of the English jury. It also has some points of resemblance, perhaps some historical connexion, with the sponsao and the decisory oath of Roman law, and the reference to oath of Scots law (see Oath). The use of the oath instead of the real or feigned combat - real in English law, feigned in Roman law - no doubt represents an advance in legal development. The technical term sacramentum is the bond of union between the two stages of law. In the wager of law the defendant, with eleven compurgators, appeared in court, and the defendant swore that he did not owe the debt, or (in detinue) that he did not detain the plaintiff's chattel; while the compurgators swore that they believed that he spoke the truth. It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension. Thus it was not permitted where the defendant was not a person of good character, where the king sued, where the defendant was the executor or administrator of the person alleged to have owed the debt, or in any form of action other than those named, even though the cause of action were the same. No wager of law was allowed in assumpsit, even though the cause of action were a simple debt. This led to the general adoption of assumpsit - proceeding originally upon a fictitious averment of a promise by the defendant - as a means of recovering debts. Where a penalty was created by statute, it became a common form to insert a proviso that no wager of law was to be allowed in an action for the penalty. Wager of law was finally abolished in 1833 (3 & 4 William IV. c. 42).^[6]

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