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
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]
Public-domain text, read in full here on John Shaqi.
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