Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
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]
Public-domain text, read in full here on John Shaqi.
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