Guest post by Ian Williams, 15 October 2019

Wager of law was a central part of a serious disagreement between the courts of King’s Bench and Common Pleas in the last decades of Elizabeth I’s reign. The dispute concerned the availability and acceptability of the writ of assumpsit being used to sue for debts when those debts could also be recovered using the writ of debt.[1] The writ of debt was the long-established remedy for such claims and it permitted a defendant to wage her law or have the case tried by a jury. The insurgent writ of assumpsit permitted only trial by jury.

A defendant sued using a writ of debt could successfully defend their claim by completing the formal process of waging their law. Coming before the judges in Westminster Hall, the defendant would have to swear an oath denying their liability. Oath-helpers would then swear to the defendant’s honesty and truthfulness. These oaths all needed to be sworn with precise accuracy, or the defendant would fail to wage their law successfully.[2]

Formally, no examination was made as to the truth of the defendant’s oath. The oath-helpers swore only to the general honesty of the defendant, not their honesty in relation to the particular debt being claimed. Informally, there is plentiful evidence of defendants being examined by the judges.[3] Some defendants were warned that they could not swear honestly. It is not clear whether such defendants were actually prevented from waging their law or chose not to do so.

By the late-sixteenth century the oath-helpers were not in a position to make an oath informed by their personal knowledge of the defendant. As it was explained in the 1620s, “there is an officer here [in the court] for the ease of the subject, who will furnish the Defendant in this case of Wager of Law, with twelve such Compurgators, as occasion shall require”.[4] As one sixteenth-century critic observed, the compurgators, the so-called Knights of the Post, “will beare false witnes in any mans behalfe that will hire them”.[5]

Wager of law could therefore be manipulated by an unscrupulous defendant who could perjure themselves, and solicit perjury in others, to avoid liability. The Knights of the Post were a “fraternity of falsehood, and fellowship of fraud”.[6] At least some defendants would not wage their law because of the damage it would do to their reputation, being perceived as a dishonest way to avoid paying one’s debts.[7]

Such a risk of perjury was acknowledged by contemporary lawyers. Edward Coke observed that “experience now proves that men’s consciences grow so large that the respect of their private advantage rather induces men to perjury”.[8] Arguments about the writs of debt and assumpsit concerning jury trial and wager of law considered the desirability of permitting perjury by the defendant in wager of law against the possibility of perjury by witnesses in a jury trial. In the test case of Slade v. Morley Francis Bacon’s argument expressly weighed up the amount of perjury in wager of law and thought it less than in a jury trial, albeit by claiming that only the defendant perjured himself in wager.[9] But there was no formal method by which this perjury and abuse of wager of law could be detected or prevented.

Despite this awareness of the possibility of perjury, in 1587 an opportunity to punish perjury by a defendant waging his law was rejected. An anonymous defendant who it was alleged had perjured himself in the wager of law of process was prosecuted in the Star Chamber. The court held that such perjury could not be prosecuted in the court.[10] Whatever consequences such a perjured defendant would face for their sin in the hereafter, they would not be subject to criminal penalties in the here and now, nor would they have to pay the money claimed.  For dishonest defendants in a debt claim, wager of law became a safe bet.

Christopher Hatton, the Lord Chancellor and therefore presiding judge in the Star Chamber, seems to have been surprised. He “demanded of the judges if he [the defendant] was discharged by his wager of law”.[11] The judges affirmed that the defendant was discharged.

Given that the dispute about using the writ of assumpsit in place of the writ of debt became a dispute between the courts of King’s Bench and Common Pleas, it is tempting to view this decision through that lens. The practice in the Star Chamber was for two of the common law judges to be members of the court. These were often the most senior of the judges: the chief justices of the King’s Bench and the Common Pleas. The report of this case identifies one of the common law judges as Chief Baron Roger Manwood of the Exchequer, but his judicial colleague is unknown.

Permitting perjury prosecutions of dishonest defendants in debt would have enabled disappointed plaintiffs to challenge the integrity of the wager of law process. The value of wager of law was an essential part of the arguments used to assert the role of the writ of debt against the writ of assumpsit. Perjury prosecutions would have undermined this position. We might therefore infer that the unknown common law judge present in the Star Chamber in 1587 was from the Common Pleas, defending wager of law in the Star Chamber just as the Common Pleas justices did in the Exchequer Chamber. Equally, however, protecting the perjured defendant from prosecution might have encouraged plaintiffs to use the writ of assumpsit in which wager of law was unavailable, something we might expect from a justice of the King’s Bench. Plaintiffs would then be protected against perjury by a defendant. The dispute between the common law courts is therefore not the ideal way to interpret the decision.

Another possible explanation might be a concern with the parties effectively relitigating a case after judgment had been given in a common law court. This was certainly a live concern in the 1590s in relation to equity courts such as the Chancery.[12] However, in 1587 a perjury prosecution in the Star Chamber would almost certainly not have led to damages being awarded to the victim of the perjury. As Barnes observes, it is only in 1588 that the award of damages became a regular part of the Star Chamber’s activity.[13] The Star Chamber prosecution would therefore not have reopened the common law decision, although clearly it (like all perjury prosecutions) would have cast doubt on it.

In the report itself, two explanations are given for the judicial toleration of the crime of perjury. One is identified as the view of Manwood himself: that the plaintiff seeking to enforce a debt could freely choose between the writs of assumpsit and debt. According to Manwood, the complainant in the perjury prosecution then had no one to blame but himself. It was his “folly” to have brought the case using a writ of debt, which permitted the defendant to wage his law.[14] Manwood had a reputation for hard-dealing, so this dismissive attitude is perhaps less surprising than it might be.[15]

Although Manwood died before the denouement of the dispute in the years around 1600, this is some of the only evidence we have for the attitude of an Exchequer judge towards a dispute which is usually presented as one between the King’s Bench and Common Pleas. At least for this Exchequer judge, the King’s Bench’s position, that the writs of assumpsit and debt were simply alternatives, was preferred.

The second explanation for the tolerance of perjury in wager of law is attributed to all of the common law judges present in the Star Chamber. It is that a successful wager of law “was so strong as a trial”.[16] The reporter provides no further elaboration, but the language is probably an allusion to a 1455 yearbook case which compared wager of law and jury trial, and the idea recurred in disputes between the King’s Bench and Common Pleas about debt claims.[17] In Slade v. Morley, John Dodderidge stressed that wager of law was “equivalent” to jury trial.[18] If jurors could not be prosecuted for perjury, then their equivalents in wager of law, the defendant and the compurgators, could not be prosecuted either.

The difficulty with this equivalence to the jury is that there were Star Chamber prosecutions of jurors for perjury.[19] However, William Hudson’s 1621 treatise on the court identified an Elizabethan practice that jurors could not be tried for perjury in suits “between party and party”, which would include debt claims.[20] Hudson may have been expressing the accepted orthodoxy, even if the Star Chamber had sometimes departed from that orthodoxy in the sixteenth century.

If this is correct, it is an example of a legal rule departing from its rationale. As Hudson explained the situation, jurors were not prosecuted in the Star Chamber for perjury because there was an available remedy through the process of attaint.[21] There was no such alternative remedy available for perjury in wager of law. The broader equivalence being drawn between wager of law and jury trial by (some) contemporary lawyers was more significant than the reason behind the rule which was being extended.

By extending the protection from perjury from jurors to a defendant in wager of law, perjury in wager of law was a matter solely for the conscience of the defendant. Until the resolution of Slade v. Morley, all that a plaintiff could do was sue using a writ of assumpsit and hope for a supportive judge at the assize.[22] For plaintiffs in the 1590s, claiming debts was a gamble.

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Dr. Ian Williams is an Associate Professor in the UCL Faculty of Laws.

 

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Image: Portrait of Sir Roger Manwood, courtesy of the National Portrait Gallery (NPG no.  475), shared on a Creative Commons CC BY-NC-ND 3.0 license.

[1] On the dispute and the various arguments, see J.H. Baker, “New Light on Slade’s Case,” Cambridge Law Journal 29 (1971): 51-67 and 213-236 and David Ibbetson, “Sixteenth Century Contract Law: Slade’s Case in Context,” Oxford Journal of Legal Studies 4 (1984): 295-317.

[2] Thomas Powell, The Attorneys Academy (London: 1623), 130-134.

[3] Baker, “New Light on Slade’s Case,” 230 n. 94. To the cases listed by Baker can be added two anonymous cases from the late-1580s, reported in British Library Hargrave Manuscript 26, fos. 115^v and 140.

[4] Powell, The Attorneys Academy, 132.

[5] E.S., The Discoverie of the Knights of the Poste: Or the Knightes of the post, or comon common baylers newly Discried (London: 1597), sig. E1^r.

[6] E.S., The Discoverie of the Knights of the Poste, sig. B1^r.

[7] Ibbetson, “Sixteenth Century Contract Law”, 313.

[8] Baker and Milsom, Sources of English Legal History: private law to 1750, 2^nd ed. (Oxford: Oxford University Press, 2010), 479.

[9] Baker and Milsom, Sources of English Legal History, 473.

[10] British Library Hargrave Manuscript 26, fo. 75.

[11] British Library Hargrave Manuscript 26, fo.75.

[12] On this issue and the dispute from the mid-1590s onwards, see John Baker, “The Common Lawyers and the Chancery: 1616,” Irish Jurist new series 4 (1969) 368-392 .

[13] Thomas G. Barnes, “A Cheshire Seductress, Precedent, and a ‘Sore Blow’ to Star Chamber,” in (eds.), On the laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris S. Arnold, Thomas A. Green, Sally A. Scully and Stephen D. White (Chapel Hill: University of North Carolina Press, 1981), 361-362.

[14] British Library Hargrave Manuscript 26, fo.75.

[15] M.R.P., ‘Manwood, Roger (by 1532-92), of Hackington, nr. Canterbury, Kent and “St. Bartholmew’s House”, London’, in History of Parliament Online.

[16] British Library Hargrave Manuscript 26, fo.75.

[17] Y.B. Hil.33. Hen. VI, fo.8, pl.23.

[18] Baker and Milsom, Sources of English Legal History, 464.

[19] Elfreda Skelton, “The Court of Star Chamber in the Reign of Queen Elizabeth,” (University of London MA thesis, 1930), 106-7.

[20] William Hudson, “A Treatise of the Court of Star Chamber”, in Collectanea Juridica, ed. Francis Hargrave (London: 1792), vol.2, 76-77.

[21] Hudson, “A Treatise of the Court of Star Chamber,” 76.

[22] As noted in Edward v. Burre (1573) (Baker and Milsom, Sources of English Legal History, 457), judges from the Common Pleas and King’s Bench required different matters to be proved at trial.