Definition
Making his law is an archaic procedural term denoting the act by which a defendant in a common law action formally performed the oath-based defense known as wager of law. When a defendant successfully "made his law," he appeared in court with a prescribed number of compurgators — oath-helpers who swore alongside him that his denial was truthful — and thereby discharged the claim against him. The phrase describes the completion of the compurgation process, not merely its initiation.
Common Confusion
Making his law is best understood as the performative act within the larger procedure of wager of law. The two phrases are sometimes used interchangeably in historical sources, but they are not identical. Wager of law names the procedural right and the offer to undertake the defense; making his law describes the successful execution of that defense. A defendant who wagered his law but failed to produce the required compurgators had not made his law.
Why It Matters in Research
This term will appear almost exclusively in pre-nineteenth century English common law sources and in American sources from the colonial and early national periods before wager of law was abolished or fell into disuse. Researchers encountering the phrase in historical pleadings, court records, or treatises should understand it as a shorthand reference to successful compurgation rather than to any substantive legal right.
Several research traps attend this term. First, because the phrase is purely procedural and archaic, it drops out of legal literature almost entirely after the early nineteenth century; finding it in a source is itself a dating signal. Second, the phrase appears in passive or reflexive constructions — "he made his law," "leave to make his law" — that can be opaque to researchers unfamiliar with compurgation practice. Third, the term has no modern analog, and attempts to map it onto contemporary concepts like a motion to dismiss or a directed verdict will distort its meaning. Compurgation was proof by oath, not by evidence, and making his law was the conclusion of that oath-based process.
The primary corpus connection is to wager of law and to the broader body of early common law procedure governing debt and detinue actions, where compurgation remained available longest. Researchers tracing the history of proof and evidence in common law courts will encounter this term in that context.
Historical Dictionary Support
Bouvier's entry is minimal but accurate: "A phrase used to denote the act of a person who wages his law," with a cross-reference to Bacon's Abridgement under Wager of Law. This points researchers toward the appropriate source for substantive treatment. Bacon's Abridgement, under the heading Wager of Law, provides the fuller procedural account — including the number of compurgators required and the formal steps of the proceeding — that Bouvier declines to repeat.
Historical dictionaries generally treat making his law as a derivative or subsidiary term, deferring to their entries on wager of law and compurgation for substantive content. This is appropriate; the phrase has no independent doctrinal weight. What historical sources collectively underscore is that the term belongs to a now-extinct procedural world in which a defendant's sworn denial, supported by oath-helpers, could legally defeat a plaintiff's claim without any examination of the underlying facts.
Jurisdictional Note
Wager of law, and with it the act of making his law, survived longer in English practice than in most American jurisdictions. Several American states abolished it by statute in the late eighteenth or early nineteenth century; others allowed it to lapse from disuse. English courts retained formal availability of the procedure until its abolition by statute in 1833. Researchers working in American colonial records should check the specific colony's or state's reception of this practice.