wager of law


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Wager of Law

A procedure for defending oneself that could be used in a trial before one of the ancient courts of England.A defendant who elected to "make his law" was permitted to make a statement before the tribunal, swear an oath that it was true, and present one or more individuals 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.

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).

Cross-references

Feudalism; Henry II of England.

wager of law

an ancient mode of proof that became unpopular because the defendant could call people as witnesses just to testify to his general oath-worthiness, even if they knew nothing of the facts of the case. It may have accounted for the ascendancy of TROVER over DETINUE. Wager of law was well recognized in Scotland. Professor Walker indicates that, although unknown to the Romans, it was ‘probably indigenous in Scotland and anterior to the Norman importation of the duel’.

WAGER OF LAW, Eng. law. When an action of debt is brought against a man upon a simple contract, and the defendant pleads nil debit, and concludes his plea with this 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 here shall consider," &c., he is said to wage his law. He is then required to swear he owes the plaintiff nothing, and bring eleven compurgators who will swear they believe him. This mode of trial, is trial by wager of law.
     2. The wager of law could only be had in actions of debt on simple contract, and actions of detinue; in consequence of this right of the defendant, now actions on simple contracts are brought in assumpsit, and instead of bridging detinue, trover has been substituted.
     3. If ever wager of law had any existence in the United States, it is now completely abolished. 8 Wheat. 642. Vide Steph. on Plead. 124, 250, and notes, xxxix.; Co. Entr. 119; Mod. Entr. 179; Lilly's Entr. 467; 3 Ch it. Pl. 497; 13 Vin. Ab. 58; Bac. Ab. h.t.; Dane's Ab. Index, h.t. For the origin of this form of trial, vide Steph. on Pl. notes xxxix; Co. Litt. 294, 5 3 Bl. Com. 341.