Page:Harvard Law Review Volume 5.djvu/79

63 THE OLDER MODES OF TRIAL. 63 In the latter half of the eighteenth century it was nearly gone. Blackstone tells us : " One shall hardly hear at present of an action of debt brought upon a simple contract," but of assumpsit for damages, where there could be no wager of law : and so of trover instead of detinue. " In the room of actions of account a bill in equity is usually filed. ... So that wager of law is quite out of use; . . . but still it is not out of force. And therefore when a new statute inflicts a penalty and gives . . . debt for recovering it, it is usual to add ' in which no wager of law shall be allowed ; ' otherwise an hardy delinquent might escape any pen- alty of the law by swearing that he had never incurred or else had discharged it." 1 The ancient trial was, then, by this time, well nigh its end. The validity of it, indeed, was recognized by the Court of Common Pleas in 1805 ; 2 but in 1824, when for the last time it makes its appearance in our reports, 3 it is a discredited stranger, ill under- stood : " Debt on simple contract. Defendant pleaded nil debet per legem. . . . Langslow applied to the court to assign the num- ber of compurgators. . . . The books [he says] leave it doubt- ful. . . . This species of defence is not often heard of now. . . . Abbott, C. J. The court will not give the defendant any assistance in this matter. He must bring such number of com- purgators as he shall be advised are sufficient. . . . Rule refused. The defendant [say the reporters] prepared to bring eleven com- purgators, but the plaintiff abandoned the action." It turned out then that it was not yet quite a ghost; and so in 1833 (Stat. 3 & 4 Will. IV. c. 42 s. 13) it was at last enacted by Parliament "that no wager of law shall be hereafter allowed." V. The Ordeal. — Of trial by the ordeal (other than the duel) not much need be said. Nothing is older; and it flourishes still in various parts of the world. As the investigations of scholars 1 Com. iii. 347-8. This clause had been usual in English statutes for a century or two, and it appeared also on this side of the water, in our colonial acts, even in regions like Massachusetts, where it is said that wager of law was not practised. Dane's Ab. i. c. 29, art. 8. In Childress v. Emory, 8 Wheat. 642, 675 (1823), Story, J., is of opinion that " the wager of law, if it ever had a legal existence in the United States, is now completely abolished." 2 Barry v. Robinson, 1 B. & P. (N. R.), p. 297 : " If a man," argued counsel, " were now to tender his wager of law, the court would refuse to allow it." ..." This was denied by the court," adds the reporter. 8 King v. Williams, 2 B. & C. 538.