Definition
Making law (also rendered "making one's law") was a procedural formality in early English common law by which a defendant denied a plaintiff's charge under oath, in open court, accompanied by a specified number of oath-helpers called compurgators. The defendant would swear to the truth of the denial; the compurgators would swear not to the facts of the dispute but to the credibility of the defendant's oath. Successful completion of the process entitled the defendant to judgment. The procedure was the mechanism by which a defendant performed, or "made," a wager of law — that is, complied with the challenge to prove innocence by oath.
The term should be understood as a term of art describing the execution of wager of law, not the creation of legal rules. "Making law" here means satisfying law's demand through a ritual process, not legislating.
Common Language
Modern common usage (Wiktionary): "Making law" in ordinary English means creating or enacting legislation, or, more loosely, establishing legal precedent through judicial decision.
Historical common usage (Webster's 1913): Webster's 1913 does not carry a discrete entry for "making law" as a compound term. "Law-making" appears as a modifier meaning legislative activity.
The gap is total and potentially misleading. A researcher encountering "making law" in a medieval or early modern English legal record should not read it as legislative activity. It is a procedural term describing the defendant's sworn denial supported by compurgators — the culmination of the wager of law process. The two meanings share no functional relationship.
Common Confusion
Making law is consistently confused with wager of law in the historical sources, a confusion the dictionaries themselves flag. The terms are related but distinct: wager of law was the challenge — the defendant's pledge or wager that he could produce oath-helpers to support his denial. Making law was the performance — the actual court appearance, the swearing, and the production of compurgators. Burrill puts it plainly: making law "was the process of complying with wager of law." Black's (both editions) note that the conflation of the two is "frequent, though inaccurate."
A second confusion: modern legal researchers may encounter "making law" in judicial opinions discussing whether courts "make law" versus apply it — an entirely separate debate about judicial role. That usage has nothing to do with the historical procedural term defined here.
Why It Matters in Research
Researchers working in early English legal records, Year Books, or treatises from the medieval and early modern periods will encounter making law as a live procedural concept. Its relevance dropped sharply with the practical decline of wager of law — the procedure was increasingly disfavored as assumpsit expanded in the sixteenth and seventeenth centuries, and wager of law was finally abolished by statute in England in 1833 (Civil Procedure Act, 3 & 4 Will. IV, c. 42).
Key navigational points:
First, the corpus connection to Blackstone is direct and important. All four source dictionaries cite 3 Bl. Comm. 341, making Blackstone the authoritative reference point for historical research on this term. Researchers should go there first for the procedural mechanics.
Second, the Rapalje & Lawrence entry adds a variant gloss — "clearing one's self of an action by an oath and the oath of neighbors" — that captures the social and communal logic of the process. The compurgators were typically neighbors whose knowledge of the defendant's character, not the facts, supplied the evidentiary weight. This framing is useful for understanding why making law was viewed with increasing suspicion as English law developed more fact-based modes of trial.
Third, Rapalje & Lawrence also includes a note on "making of the sale" as a distinct statutory phrase, citing New York authority. This is a different term entirely and should not be conflated with making law.
Fourth, researchers in American colonial legal history may find scattered references to wager of law and making law in early colonial records, though the procedure was rarely used and often abolished early by colonial legislatures.
Historical Dictionary Support
The four source dictionaries are in close agreement on the core definition. Black's (1st and 2nd editions) and Burrill track nearly identical language, all tracing to 3 Bl. Comm. 341. The convergence on Blackstone as the primary authority is itself significant — it suggests the term was already receding into historical curiosity by the time these dictionaries were compiled, with Blackstone serving as the canonical source rather than living practice.
Burrill adds the most analytical value by explicitly distinguishing making law as the process of complying with wager of law, which is the clearest statement of the procedural relationship between the two terms.
Rapalje & Lawrence diverges slightly in tone, offering the more colloquial gloss about "clearing one's self" and gesturing at the community-based character of the oath-helpers ("neighbors"). This framing reflects an older vernacular understanding of the process that the more formal dictionaries smooth over.
What the historical sources do not address: none of the dictionaries account for the term's use across different forms of action. Making law was available as a defense in certain actions — notably debt on simple contract — but was not available across the board. Researchers looking for procedural context about when making law could be invoked will need to go beyond the dictionary entries to Blackstone, Glanvill, and Bracton.
Encyclopedia Cross-Reference
No Law Mind Encyclopedia entry directly addresses wager of law or making law as historical procedural concepts. The matched entries (algorithmic decision-making, guardianship alternatives) are not relevant to this term. Omitted.