Legal wager
Encyclopedia
In the Roman litigation
system, while the Legis Actiones procedure was in force, during the early Republic
, both parties had to lay down a wager
at the preliminary hearing
, probably to discourage frivolous litigation
. In some cases, if the party lost, the wager went to the other party, to compensate him for his inconvenience, rather than to the court to cover costs. There were three different types of legis actiones, and the wager differed in each.
, or 500 if the matter under dispute was worth 1000 or more. The wager of the winning party would be returned, but the loser's would be forfeited to the State. While the reasoning for this lay in theory in the idea of a sacrifice to the gods, its main effect was to discourage frivolous litigation, since the sums laid down as wagers were substantial.
cases, laid down by statute, and did not require any wager at all. It was therefore much less risky for the plaintiff
.
received one-third of the sum if he won.
), a bet
or stake. Wagers in the ordinary sense of the term are dealt with under the headings Gaming and Betting; but the method of wagering - in principle the putting of a decision to the hazard
- has had extended employment in various cases which may be noticed here. The determination of cases, civil and criminal, by means of wager or analogous forms of procedure, was a characteristic feature of ancient law. The legis actin sacramenti at Rome
- at first a real, then a fictitious, wager - and the wagers "of battle" and "of law" in England
, of the highest antiquity in their origin, survived up to a comparatively late period in the history of both legal systems. The form of the wager survived long after its reason had been forgotten. The general prevalence of the wager form of proceeding is perhaps to be attributed to the early conception of a judge
as a mere referee
who decided the dispute submitted to him, not as an executive officer of the state, but as an arbitrator casually called in (see Maine
, Ancient Law, c. x.).
"Wager of battle" in England was a mode of trial allowed in certain cases, viz. on a civil writ
of right for recovery of land (see Writ
), and on criminal appeals of treason
and felony
(see Appeal
.). Trial by battle, or single combat, was a common Teutonic custom in days when criminal "appeal" was really a prosecution by a private individual; and it remained in vogue on the continent of Europe
(where hired champions were allowed) to a much greater extent than in England, where after the Conquest it was to some extent substituted for trial by ordeal
. It was an institution suited to the days of chivalry
, and may be regarded as the parent of the duel
. In England the "appellant" first formulated his charge, which was proclaimed at five successive county courts. If the "appellee" did not appear he was outlawed; if he did he could plead various exemptions; and unless the court upheld them he was obliged to offer battle by throwing down his glove
as gage
. When an ordinary court ordered the battle, it was fought on foot with staves and leather
shields; but when a court of chivalry' ordered it, on horse
with spear
and sword
. If defeated, the appellee was liable to sentence of death by hanging
, and an undecided fight still left him liable, though acquitted on the appeal, to trial by indictment
; if the appellant yielded, the appellee was free. The right of "wager of battle" was claimed as late as 1818 by a man named Thornton, who had been acquitted at assizes of a charge of murdering a girl named Ashford; her brother brought an "appeal," and the judges upheld Thornton's claim, but the appellant then withdrew. Next year appeals for felony or treason were abolished by statute.2 "Wager of law" (vadiatio legis) was a right of a defendant
in actions of simple contract, debt and detinue
. It superseded the ordeal (itself called lex in the Assize of Clarendon and other 1 The medieval court of chivalry had both civil and criminal jurisdiction, and was held jointly by the lord high constable
and the earl marshal
. The last sitting of a court of chivalry for criminal business in England was in 1631; and as a civil court (for cases of honour and questions of precedence) it gradually decayed through want of power to enforce its decisions. There is an interesting account of the rules of battle ordered by a court of chivalry in Ashmolean MSS. 856 of the Bodleian Library (transcribed in Illustrations of Ancient State and Chivalry, Roxburghe Club, 1840).
See G. Neilson, Trial by Combat (Glasgow, 1891).
ancient constitutional records). The procedure in a wager of law is traced by Blackstone to the Mosaic
law, Ex. xxii. 10; but it seems historically to have been derived from the system of compurgation
, introduced into England from Normandy
, a system which is now thought to have had an appreciable effect on the development of the English jury
. It also has some points of resemblance, perhaps some historical connexion, with the sponsao and the decisory oath of Roman law
, and the reference to oath of Scots law (see Oath
). The use of the oath instead of the real or feigned combat - real in English law
, feigned in Roman law - no doubt represents an advance in legal development. The technical term sacramentum is the bond of union between the two stages of law. In the wager of law the defendant, with eleven compurgators, appeared in court, and the defendant swore that he did not owe the debt, or (in detinue) that he did not detain the plaintiff's chattel; while the compurgators swore that they believed that he spoke the truth. It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension. Thus it was not permitted where the defendant was not a person of good character, where the king sued, where the defendant was the executor or administrator of the person alleged to have owed the debt, or in any form of action other than those named, even though the cause of action were the same. No wager of law was allowed in assumpsit
, even though the cause of action were a simple debt. This led to the general adoption of assumpsit - proceeding originally upon a fictitious averment of a promise by the defendant - as a means of recovering debts. Where a penalty
was created by statute, it became a common form to insert a proviso that no wager of law was to be allowed in an action for the penalty. Wager of law was finally abolished in 18 33 (3 & 4 William IV
. c. 42).
Another form of judicial wager in use up to 1845 was the feigned issue, by which questions arising in the course of chancery
proceedings were sent for trial by jury in a common law
court. The plaintiff
averred the laying of a wager of with the defendant that a certain event was as he alleged; the defendant admitted the wager, but disputed the allegation; on this issue was joined. This procedure was abolished by s. Iq of the Gaming Act 184 5. (W. F. C.)
Roman litigation
The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extraordinarem. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio...
system, while the Legis Actiones procedure was in force, during the early Republic
Roman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
, both parties had to lay down a wager
Wager
Wager can refer to:* Gambling* A scientific wager* A legal wager under the Roman legal system* WAGR syndrome - a rare genetic syndrome-Given name:*Wager Swayne , American military Governor-Surname:...
at the preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
, probably to discourage frivolous litigation
Frivolous litigation
In law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit...
. In some cases, if the party lost, the wager went to the other party, to compensate him for his inconvenience, rather than to the court to cover costs. There were three different types of legis actiones, and the wager differed in each.
Sacramentum
This was the standard procedure for litigation under the legis actiones system, and was used whenever another procedure was not proscribed by statute. In this system, both parties had to lay down a wager of 50 assesAs (coin)
The , also assarius was a bronze, and later copper, coin used during the Roman Republic and Roman Empire.- Republican era coinage :...
, or 500 if the matter under dispute was worth 1000 or more. The wager of the winning party would be returned, but the loser's would be forfeited to the State. While the reasoning for this lay in theory in the idea of a sacrifice to the gods, its main effect was to discourage frivolous litigation, since the sums laid down as wagers were substantial.
Iudis arbitrive postulatio
This procedure (which was fully titled, "Legis actio per iudicis arbitrive postulationem", meaning, "the complaint before the judge or arbiter") was only used in some in personamIn personam
In personam is a Latin phrase meaning "directed toward a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called...
cases, laid down by statute, and did not require any wager at all. It was therefore much less risky for the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
.
Condictio
This was used from around the 3rd century BC for the recovery of a specific thing or specific sum of money (such as from a debtor). It did not require a wager as such, but the parties exchanged promises to the effect that the loser would pay to the winner one-third of the sum at issue - that is, if the plaintiff won, he received one and one-third of the sum, whereas the defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
received one-third of the sum if he won.
From 1911 Britannica
WAGER (derived, through Fr. wagier, gagier, from Lat. vadium, a pledgePledge (law)
A pledge is a bailment or deposit of personal property to a creditor to secure repayment for some debt or engagement, The term is also used to denote the property which constitutes the security....
), a bet
Bet
Bet or BET may refer to:* A wager in gambling* Basic Economics Test * Bet , the second letter in many Semitic alphabets, including Aramaic, Hebrew, Phoenician and Syriac* Brunauer-Emmett-Teller isotherm. See BET_theory...
or stake. Wagers in the ordinary sense of the term are dealt with under the headings Gaming and Betting; but the method of wagering - in principle the putting of a decision to the hazard
Hazard
A hazard is a situation that poses a level of threat to life, health, property, or environment. Most hazards are dormant or potential, with only a theoretical risk of harm; however, once a hazard becomes "active", it can create an emergency situation. A hazard does not exist when it is not...
- has had extended employment in various cases which may be noticed here. The determination of cases, civil and criminal, by means of wager or analogous forms of procedure, was a characteristic feature of ancient law. The legis actin sacramenti at Rome
Rome
Rome is the capital of Italy and the country's largest and most populated city and comune, with over 2.7 million residents in . The city is located in the central-western portion of the Italian Peninsula, on the Tiber River within the Lazio region of Italy.Rome's history spans two and a half...
- at first a real, then a fictitious, wager - and the wagers "of battle" and "of law" in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, of the highest antiquity in their origin, survived up to a comparatively late period in the history of both legal systems. The form of the wager survived long after its reason had been forgotten. The general prevalence of the wager form of proceeding is perhaps to be attributed to the early conception of a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
as a mere referee
Referee
A referee is the person of authority, in a variety of sports, who is responsible for presiding over the game from a neutral point of view and making on the fly decisions that enforce the rules of the sport...
who decided the dispute submitted to him, not as an executive officer of the state, but as an arbitrator casually called in (see Maine
Maine (disambiguation)
Maine is a state in the United States. Maine may also refer to:-Places:*Gulf of Maine, off the coast of the US state*Maine , France*Maine , France*Maine, New York, a town*Maine, Marathon County, Wisconsin...
, Ancient Law, c. x.).
"Wager of battle" in England was a mode of trial allowed in certain cases, viz. on a civil writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of right for recovery of land (see Writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
), and on criminal appeals of treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
and felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
(see Appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
.). Trial by battle, or single combat, was a common Teutonic custom in days when criminal "appeal" was really a prosecution by a private individual; and it remained in vogue on the continent of Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
(where hired champions were allowed) to a much greater extent than in England, where after the Conquest it was to some extent substituted for trial by ordeal
Ordeal
Ordeal may refer to* The American title of What Happened to the Corbetts, a 1939 novel by Nevil Shute* Trial by ordeal, the judicial practice...
. It was an institution suited to the days of chivalry
Chivalry
Chivalry is a term related to the medieval institution of knighthood which has an aristocratic military origin of individual training and service to others. Chivalry was also the term used to refer to a group of mounted men-at-arms as well as to martial valour...
, and may be regarded as the parent of the duel
Duel
A duel is an arranged engagement in combat between two individuals, with matched weapons in accordance with agreed-upon rules.Duels in this form were chiefly practised in Early Modern Europe, with precedents in the medieval code of chivalry, and continued into the modern period especially among...
. In England the "appellant" first formulated his charge, which was proclaimed at five successive county courts. If the "appellee" did not appear he was outlawed; if he did he could plead various exemptions; and unless the court upheld them he was obliged to offer battle by throwing down his glove
Glove
A glove is a garment covering the hand. Gloves have separate sheaths or openings for each finger and the thumb; if there is an opening but no covering sheath for each finger they are called "fingerless gloves". Fingerless gloves with one large opening rather than individual openings for each...
as gage
Gage
Gage may refer to:In nature:* Gage , plums of subspecies Prunus domestica ssp. italica** Greengage, P. d. ssp. italica var...
. When an ordinary court ordered the battle, it was fought on foot with staves and leather
Leather
Leather is a durable and flexible material created via the tanning of putrescible animal rawhide and skin, primarily cattlehide. It can be produced through different manufacturing processes, ranging from cottage industry to heavy industry.-Forms:...
shields; but when a court of chivalry' ordered it, on horse
Horse
The horse is one of two extant subspecies of Equus ferus, or the wild horse. It is a single-hooved mammal belonging to the taxonomic family Equidae. The horse has evolved over the past 45 to 55 million years from a small multi-toed creature into the large, single-toed animal of today...
with spear
Spear
A spear is a pole weapon consisting of a shaft, usually of wood, with a pointed head.The head may be simply the sharpened end of the shaft itself, as is the case with bamboo spears, or it may be made of a more durable material fastened to the shaft, such as flint, obsidian, iron, steel or...
and sword
Sword
A sword is a bladed weapon used primarily for cutting or thrusting. The precise definition of the term varies with the historical epoch or the geographical region under consideration...
. If defeated, the appellee was liable to sentence of death by hanging
Hanging
Hanging is the lethal suspension of a person by a ligature. The Oxford English Dictionary states that hanging in this sense is "specifically to put to death by suspension by the neck", though it formerly also referred to crucifixion and death by impalement in which the body would remain...
, and an undecided fight still left him liable, though acquitted on the appeal, to trial by indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
; if the appellant yielded, the appellee was free. The right of "wager of battle" was claimed as late as 1818 by a man named Thornton, who had been acquitted at assizes of a charge of murdering a girl named Ashford; her brother brought an "appeal," and the judges upheld Thornton's claim, but the appellant then withdrew. Next year appeals for felony or treason were abolished by statute.2 "Wager of law" (vadiatio legis) was a right of a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
in actions of simple contract, debt and detinue
Detinue
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
. It superseded the ordeal (itself called lex in the Assize of Clarendon and other 1 The medieval court of chivalry had both civil and criminal jurisdiction, and was held jointly by the lord high constable
Lord High Constable
There are two current and one former royal offices in the United Kingdom of Lord High Constable:* The Lord High Constable of England, the seventh of the Great Officers of State, ranking beneath the Lord Great Chamberlain and above the Earl Marshal...
and the earl marshal
Earl Marshal
Earl Marshal is a hereditary royal officeholder and chivalric title under the sovereign of the United Kingdom used in England...
. The last sitting of a court of chivalry for criminal business in England was in 1631; and as a civil court (for cases of honour and questions of precedence) it gradually decayed through want of power to enforce its decisions. There is an interesting account of the rules of battle ordered by a court of chivalry in Ashmolean MSS. 856 of the Bodleian Library (transcribed in Illustrations of Ancient State and Chivalry, Roxburghe Club, 1840).
See G. Neilson, Trial by Combat (Glasgow, 1891).
ancient constitutional records). The procedure in a wager of law is traced by Blackstone to the Mosaic
Mosaic
Mosaic is the art of creating images with an assemblage of small pieces of colored glass, stone, or other materials. It may be a technique of decorative art, an aspect of interior decoration, or of cultural and spiritual significance as in a cathedral...
law, Ex. xxii. 10; but it seems historically to have been derived from the system of compurgation
Compurgation
Compurgation, also called wager of law, is a defence used primarily in medieval law. A defendant could establish his innocence or nonliability by taking an oath and by getting a required number of persons, typically twelve, to swear they believed the defendant's oath.Compurgation was found in...
, introduced into England from Normandy
Normandy
Normandy is a geographical region corresponding to the former Duchy of Normandy. It is in France.The continental territory covers 30,627 km² and forms the preponderant part of Normandy and roughly 5% of the territory of France. It is divided for administrative purposes into two régions:...
, a system which is now thought to have had an appreciable effect on the development of the English jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. It also has some points of resemblance, perhaps some historical connexion, with the sponsao and the decisory oath of Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, and the reference to oath of Scots law (see Oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
). The use of the oath instead of the real or feigned combat - real in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, feigned in Roman law - no doubt represents an advance in legal development. The technical term sacramentum is the bond of union between the two stages of law. In the wager of law the defendant, with eleven compurgators, appeared in court, and the defendant swore that he did not owe the debt, or (in detinue) that he did not detain the plaintiff's chattel; while the compurgators swore that they believed that he spoke the truth. It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension. Thus it was not permitted where the defendant was not a person of good character, where the king sued, where the defendant was the executor or administrator of the person alleged to have owed the debt, or in any form of action other than those named, even though the cause of action were the same. No wager of law was allowed in assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
, even though the cause of action were a simple debt. This led to the general adoption of assumpsit - proceeding originally upon a fictitious averment of a promise by the defendant - as a means of recovering debts. Where a penalty
Sanctions (law)
Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines...
was created by statute, it became a common form to insert a proviso that no wager of law was to be allowed in an action for the penalty. Wager of law was finally abolished in 18 33 (3 & 4 William IV
William IV
William IV may refer to:* William IV of the United Kingdom * William IV, Duke of Aquitaine * William IV of Provence * William, Margrave of Meissen , also William IV of Weimar* William IV, Count of Toulouse William IV may refer to:* William IV of the United Kingdom (1765–1837)* William IV, Duke of...
. c. 42).
Another form of judicial wager in use up to 1845 was the feigned issue, by which questions arising in the course of chancery
Court of equity
A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.These courts began with petitions to the Lord Chancellor of England...
proceedings were sent for trial by jury in a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
court. The plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
averred the laying of a wager of with the defendant that a certain event was as he alleged; the defendant admitted the wager, but disputed the allegation; on this issue was joined. This procedure was abolished by s. Iq of the Gaming Act 184 5. (W. F. C.)