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Encyclopedia Britannica - Main :: VIR-WAT |
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WAGER (derived, through Fr. wagier, gagier, from Lat. vadiunz, a pledge) , 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 wageringin principle the putting of a decision to the ha.zardhas 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 aclio sacramenti at Romeat first a real, then a fictitious, wagerand the wagers " of battle " and " of law " in England, of the highest antiquity in their origin, survived up to a comparatively late
" 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 Con-quest it was to some extent substituted for trial by ordeal (q.v.). It was an institution suited to the days of chivalry , and may be regarded as the parent of the duel (q.v.). 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 with-drew. Next year appeals for felony or treason were abolished by statute
" 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
r The medieval court of chivalry had both civil and criminal jurisdiction, and was held jointly by the lord high constable and the earl
' 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. xo; 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 (q.v.). It also has some points of resemblance, perhaps some historical connexion, with the sponsto 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 combatreal in English law, feigned in Roman lawno 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
statute
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 5 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. 19 of the Gaming Act 1845. (W. F. C.) End of Article: WAGER (derived, through Fr. wagier, gagier, from Lat. vadiunz, a pledge) If you wish, you can link directly to this article.
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