Definition
Legem facere is a Latin phrase from old English law meaning "to make law" or, more precisely, "to make oath." In medieval English legal procedure, the term described the act by which a party formally established or proved their case through oath-taking — specifically, the compurgatory oath at the center of wager of law (wager of loi). A defendant who was permitted to "make law" would swear an oath denying the plaintiff's claim and produce a specified number of oath-helpers (compurgators) who would swear alongside them, collectively "making" the law that exonerated the defendant.
The phrase operated within a cluster of related Latin expressions that together defined a party's standing and capacity within the old oath-based procedural system:
- Legem vadiare: to wage law; to offer or pledge the compurgatory oath as a mode of trial.
- Legem habere: to have law; to be legally competent to give evidence upon oath, or to participate in oath-based proceedings.
- Legem amittere: to lose the law; to forfeit the privilege of being admitted to oath, typically as a consequence of infamy or conviction of certain offenses.
These phrases are inseparable in meaning and should be understood as a family of terms rather than isolated expressions.
Common Confusion
Legem facere is closely tied to, but distinct from, legem vadiare. Vadiare is the act of pledging or offering the wager of law — the procedural step of putting up the oath as a form of trial. Facere is the completion of that process — the actual making of the oath. A researcher encountering one term in a historical source should look for the other nearby. Both are sometimes loosely translated as "wager of law" in secondary literature, which collapses a meaningful procedural distinction.
Legem facere should also not be confused with legem ferre or legem rogare, which mean "to propose or carry a law" in the legislative sense — an entirely different context with no connection to oath procedure.
Why It Matters in Research
This term appears almost exclusively in sources predating the abolition of wager of law in England (formally abolished by statute in 1833). Researchers working in medieval Year Books, early common law treatises, or colonial American procedural materials will encounter legem facere as live procedural vocabulary. After abolition, it appears only as historical reference.
The primary research trap is treating legem facere as equivalent to "proof" in the modern evidentiary sense. It was not a truth-finding mechanism in the modern sense at all — it was a formal ritual whose outcome depended on the oath and the number of compurgators, not on factual evidence. Transposing modern evidentiary concepts onto this term will produce analytical errors.
The cluster relationship among legem facere, legem vadiare, legem habere, and legem amittere is important for corpus navigation. A search for one term in historical legal texts will often surface the others in close proximity. Legem amittere in particular connects to the broader concept of legal infamy and its consequences — a defendant who had lost the law could neither make oath nor compel others to hear their oath, effectively stripping them of the primary defense available under wager of law procedure.
Burrill's citation to Coke's Third Institute (3 Inst.) situates the phrase within Coke's treatment of legal infamy and the permanent reputational consequences of losing one's standing before the law. Researchers tracing the development of witness competency rules, testimonial disqualification, or the history of evidence law will find legem amittere — and by extension legem facere — relevant to understanding why certain categories of persons were historically excluded from giving sworn testimony.
Historical Dictionary Support
The three source dictionaries agree on the core translation and historical context. All three treat legem facere as an old English law term meaning to make law or oath, and Burrill provides the most complete treatment by explicitly mapping the companion phrases (legem vadiare, legem habere, legem amittere) and their interrelationship.
Rapalje & Lawrence adds a useful pointer to Selden's Notes on Hengham as a primary source for deeper research on the mechanics of oath procedure. John Selden's annotations on Ralph de Hengham's Summae are a recognized authority on early English procedural law, making this citation a genuine research lead rather than decoration.
Black's entry is minimal and should be used only as a starting point. Burrill's entry is the most useful of the three for understanding the term in its procedural ecosystem. None of the source dictionaries addresses the abolition of wager of law or situates legem facere within the arc of evidence law reform — a gap researchers should fill by consulting Coke's Institutes directly and secondary literature on the history of common law proof.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Wager of Law; Compurgation; Legal Infamy