Trial by wager of law

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It is possible that the law may not apply to you and may have changed from the time a post was made. 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, , 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. 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.

If ever wager of law had any existence in the United States, it is now completely abolished. A defendant sued using a writ of debt could successfully defend their claim by completing the formal process of waging their law. Coming before the judges in Westminster Hall, the defendant would have to swear an oath denying their liability. These oaths all needed to be sworn with precise accuracy, or the defendant would fail to wage their law successfully.

The oath-helpers swore only to the general honesty of the defendant, not their honesty in relation to the particular debt being claimed. Informally, there is plentiful evidence of defendants being examined by the judges. It is not clear whether such defendants were actually prevented from waging their law or chose not to do so.

By the late-sixteenth century the oath-helpers were not in a position to make an oath informed by their personal knowledge of the defendant. Wager of law could therefore be manipulated by an unscrupulous defendant who could perjure themselves, and solicit perjury in others, to avoid liability.

Such a risk of perjury was acknowledged by contemporary lawyers. In the test case of Slade v. Despite this awareness of the possibility of perjury, in an opportunity to punish perjury by a defendant waging his law was rejected. An anonymous defendant who it was alleged had perjured himself in the wager of law of process was prosecuted in the Star Chamber.

The court held that such perjury could not be prosecuted in the court. For dishonest defendants in a debt claim, wager of law became a safe bet.

Christopher Hatton, the Lord Chancellor and therefore presiding judge in the Star Chamber, seems to have been surprised. The practice in the Star Chamber was for two of the common law judges to be members of the court.

The report of this case identifies one of the common law judges as Chief Baron Roger Manwood of the Exchequer, but his judicial colleague is unknown. Permitting perjury prosecutions of dishonest defendants in debt would have enabled disappointed plaintiffs to challenge the integrity of the wager of law process.

The value of wager of law was an essential part of the arguments used to assert the role of the writ of debt against the writ of assumpsit. Perjury prosecutions would have undermined this position. We might therefore infer that the unknown common law judge present in the Star Chamber in was from the Common Pleas, defending wager of law in the Star Chamber just as the Common Pleas justices did in the Exchequer Chamber.

Plaintiffs would then be protected against perjury by a defendant.