WAI - The Law Mind Legal Dictionary

WAIAuthored

The Law Mind • 815 words

Definition

"Wai" is an archaic English legal term, appearing in early common law records as a variant spelling of "waif" or as a phonetic rendering of the exclamation "way" (or "waive") used in outlaw proceedings. In its most historically attested legal sense, the term appears in connection with the medieval process by which a woman was declared an outlaw — she could not technically be "outlawed" in the same manner as a man, but was instead "waived," meaning she was cast out of the law's protection and treated as abandoned. The verb form "to wai" or "waive" in this context meant to cast away, to abandon to the law's outer edge.

Separately, "wai" appears in some older English legal records and pleadings as a scribal or phonetic variant in phrases associated with wager of law (Latin: *vadiare legem*), the archaic compurgation procedure by which a defendant swore to the truth of a denial and produced a set number of oath-helpers (compurgators) to swear alongside him. In this procedural sense, "wai" is not a standalone term but surfaces as an abbreviated or corrupted form within court records and law reporters.

Neither usage survives in modern legal practice.

Common Language

Modern common usage (Wiktionary): A Thai greeting in which the palms are pressed together before the face or chest, sometimes accompanied by a bow.

Historical common usage (Webster's 1913): Not listed as an independent entry; subsumed under "way" or "waive."

The gap here is complete rather than partial. The common modern meaning — a Southeast Asian gesture of greeting and respect — has no connection to the archaic English legal usage. Researchers encountering "wai" in a legal context should not import any cultural or gestural meaning; the term in legal sources is purely a variant spelling problem tied to medieval English procedure.

Common Confusion

"Wai" is most commonly confused with — or silently corrected to — "waif," "waive," and "wager of law" in transcription and indexing. Archival and digitized sources may index it inconsistently. Researchers who search only for normalized modern spellings will miss instances of this variant. It should also be distinguished from "way" in the property law sense (right of way), with which it shares phonetic overlap but no legal relationship.

Why It Matters in Research

The practical research problem with "wai" is a spelling and indexing problem, not a doctrinal one. In Law Mind corpus sources — particularly older English law dictionaries, year books, and early reporters — variant and phonetic spellings were common before standardization. A researcher tracing wager of law or the outlawry of women may encounter "wai" without any editorial flag directing them to the canonical term.

Burrill's Law Dictionary is representative of the mid-nineteenth-century effort to collect and normalize archaic terminology. Where Burrill's text (as excerpted in the source material) is discussing wager of law — the defendant standing at the bar, laying his hand upon the book, and declaring readiness to "wage his law" — the surrounding procedural language occasionally incorporates older phonetic spellings. Researchers should run parallel searches on "waive," "waif," "wager of law," and "outlaw" when working in sources predating the eighteenth century.

For corpus research purposes: if "wai" surfaces in a document and context is unclear, the first diagnostic question is whether the surrounding text involves (1) outlawry or abandonment of persons or property, or (2) a defendant's oath procedure. Those two contexts will resolve the meaning in nearly all cases.

Historical Dictionary Support

Burrill's Law Dictionary does not carry a standalone entry for "wai" as an independent term of art. The excerpt provided by the source material places the term within a passage describing wager of law procedure — the defendant stationed at the bar, the secondary's question, the hand upon the book, the plaintiff being called — which is consistent with Burrill's broader treatment of compurgation and its decline. Burrill, like most nineteenth-century legal lexicographers, was assembling survivals and curiosities of common law procedure rather than terms in active use.

Earlier legal dictionaries in the English tradition — Jacob's Law Dictionary, Tomlin's Law Dictionary — treat "waive" and "waif" at length but do not isolate "wai" as a separate headword, which confirms that the variant was understood by compilers as a spelling anomaly rather than a distinct legal concept. What historical dictionaries collectively miss is a clear reconciliation of the orthographic variants, leaving the corpus researcher to bridge that gap manually.

Jurisdictional Note

Wager of law, to which this term is most closely connected, was an English common law procedure that was never transplanted intact into American colonial or state practice, though traces appear in early American legal writing. It was formally abolished in England by statute in 1833. No modern jurisdiction employs it.

WAImain

Burrill's Law Dictionary • 1870

(607) but if he will stand by his law, we cannot A policy without any real interest to suphinder it, seeing it is a method the law allows. And the defendant was set at the right corner of the bar, without the bar, and the secondary asked him, if he was ready to wage his law; he answered 'Yes.' Then he laid his hand upon the book, and then the plaintiff was called; and a question thereupon arose whether the plaintiff was demandable. [The court held that he was.] Then the court admonished him [the defendant,] and also his compurgators, which they regarded not so much as to desist from it. Accordingly the defendant was sworn, that he owed not the money modo et forma, as the plaintiff had declared, nor any penny thereof. Then his compurgators standing behind him were called over, and each held up his right hand, and then laid their hands upon the book, and swore that they believed what the defendant swore was true." This formality of acquitting one's self of a claim by oath, was properly and technically called "making law" or "perfecting law;" the word "law" being used in its ancient sense of oath. See Law. Lord Coke, however, supposes the term to mean, "taking the benefit which the law allowed the party." Co. Litt. 295. Wager of law strictly signified merely the preliminary formality of giving gage or security, but (probably in consequence of the ambiguous character of the expression, "making law") is generally used in the books, to denote the whole proceeding. 3 Bl. Com. 341-348. See Fleta, lib. 2, c. 47, § 5. Wager of law was one of the most ancient proceedings in English practice. It is distinctly described in Glanville, (ub. sup.) and was probably introduced by the Saxons. Montesquieu mentions it, under the name of the custom of negative proofs, 3 Kent's port it; a policy in which the insured has no interest, being in fact nothing more than a wager or bet between the parties, whether such a voyage would be performed, or such a ship arrive safe.* Com. 277, 278. A mere hope or expectation, without some interest in the subject matter, is a wager policy. Id. 275. Mr. Arnould defines a wager policy to be " one in which the parties, by express terms, disclaim, on the face of it, the intention of making a contract of indemnity." 1 Arn. on Ins. 276, (281, Perkins' ed.) Policies of this kind are now generally held to be illegal. Id. 285, (289.) 1 Duer on Ins. 93-95. Id. 154, 155.