“In an action of debt by a merchant stranger, on any species of simple contract, the defendant was not permitted to _wage his law_. Even in those early times, the courts were strongly disposed to rescue commercial transactions and dealings from this species of trial, as may be seen by the intended operation of the statute _de mercatoribus_, and particularly in the case of foreign creditors, who, it was presumed, could not so easily obtain the requisite evidence, of their claims as resident merchants; and this may be seen in Godfrey and Dixon’s case.”[84] And Mr. Justice Story, in disposing of the case, _inter alia_ decided: “Now, whatever may be said upon the question, whether the wager of law was ever introduced into the common law of our country by the emigration of our ancestors, it is perfectly clear that it cannot, since the establishment of the state of Tennessee, have had a legal existence in its jurisprudence. The constitution of that state has expressly declared, that the trial by jury shall remain inviolate; and the constitution of the United States has also declared that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Any attempt to set up the wager of law would be utterly inconsistent with this acknowledged right. So that the wager of law, if it ever had any legal existence in the United States, is now completely abolished. If, then, we apply the rule of the common law, to the present case, we shall arrive, necessarily, at the conclusion, that the action of debt does lie against the executor, because the testator could never have waged his law in this case.”[85] And so Mr. Webster’s defense of the _wager of law_, to this action on this note, was held not to obtain, and he lost his case and his client was adjudged to pay the note of his testator. If true that but “a hair divides the false and true,” it is little wonder that for centuries, in the struggle for right, immersed amid the darkness of the dawn of judicial procedure, an occasional false note should come down to us, through the centuries, from the pathetic drama wherein the individual was made to assert his right, upon the mere _wager of law_, instead of more accurate human standards to balance the scales of justice. Judged by our own environment, it seems that the quarrels of the Universe of old were gauged far too long by the erroneous standards used in the vain pursuit of This and That, about which the citizens of the past centuries endeavoured and disputed. And that with the institution of trial by jury, brought into existence in the middle ages, the _wager of law_ would have much sooner become an obsolete form of procedure.