Definition
To make law (Latin: *facere legem*; Law French: *faire ley* or *parfaire ley*) is a phrase from old English procedural practice meaning to clear oneself of a charge or claim by taking a formal oath of denial, supported by the sworn oaths of a prescribed number of other persons called compurgators. The person accused or sued would solemnly swear that the opposing party's allegation was false, and the compurgators would swear not to the facts themselves but to their belief in the oath-taker's credibility and truthfulness. Successfully completing this procedure discharged the party from liability or criminal accusation.
The phrase is the verbal counterpart to the noun *wager of law* (also called *compurgation*), which names the procedural device as a whole. To make law was to perform — to execute or complete — the wager successfully.
Blackstone offered an alternative gloss, suggesting the phrase meant "to take the benefit which the law has allowed" (3 Bl. Com. 341), framing it as a right or privilege the defendant was exercising. Burrill's Law Dictionary treats this reading skeptically, indicating that in context *law* more likely referred to the formal oath itself — the solemn legal act — rather than to a benefit conferred by the legal system.
---
Common Language
Modern common usage (Wiktionary): No standard entry. "Make law" in ordinary modern English means to enact legislation — to pass a statute through a legislature.
Historical common usage (Webster's 1913): Not specifically defined, but "make" combined with "law" would carry the same legislative sense: to create, establish, or enact a rule having legal force.
The gap here is significant and potentially misleading. A researcher encountering "to make law" in a medieval or early modern English legal text should not interpret it as anything legislative. It is a term of art from compurgatory procedure, describing a personal oath of denial, not an act of rulemaking or legislation. The modern ear will almost certainly misconstrue it.
---
Common Confusion
TO MAKE LAW is frequently encountered in proximity to — and sometimes confused with — related procedural terms that describe different stages or aspects of compurgation:
- **Wager of law**: The broader procedural device of which "to make law" is the completion. A party *wages* law (offers to undergo the procedure); later, they *make* law (actually perform the oath). The two phrases describe different moments in the same process.
- **Compurgation**: The general name for the oath-helping system. "To make law" is the specific act of performance within that system.
- **Purgation**: Used in both ecclesiastical and secular contexts for oath-based self-clearing. Related but not identical in procedure or application.
---
Why It Matters in Research
This phrase is a research hazard precisely because it looks transparent and is not. A reader unfamiliar with compurgation who encounters "he made his law" in a Year Book, plea roll, or early common law treatise may skip past it thinking the meaning is self-evident. It is not.
Several navigational points:
**Temporal range**: The phrase belongs to medieval and early modern English practice. It appears regularly in Year Books and in the institutional writers — Glanvill, Bracton, Fitzherbert, Coke — and persists in treatises through the seventeenth and into the eighteenth century. By the time Blackstone is writing, it is largely archaic practice, which explains why his definition reads more as antiquarian explanation than working doctrine.
**Abolition**: Wager of law was formally abolished in England by statute in 1833 (Civil Procedure Act, 3 & 4 Will. IV, c. 42). Researchers working with post-1833 English sources will not encounter this as live procedure, but may still find historical references to it in commentary and argument.
**Compurgators**: Any research into "to make law" quickly implicates the number and qualification of compurgators required, which varied by court, action type, and period. Burrill and the institutional writers diverge somewhat on the details. Do not assume uniformity.
**American materials**: Compurgation was received into early American colonial practice in some jurisdictions but was never uniformly adopted and faded quickly. American legal dictionaries of the nineteenth century (Bouvier, Black) treat it as historical English law. Researchers in American colonial records should be alert to occasional appearances but should not expect consistent practice.
**The Blackstone reading**: Blackstone's gloss — that "to make law" means taking a legal benefit — is not merely an alternative reading; it reflects a normative framing that characterizes the procedure as a defendant's right rather than a ritual act. That distinction has interpretive consequences when evaluating how courts and commentators in different periods understood the legitimacy and scope of compurgation.
---
Historical Dictionary Support
Burrill's Law Dictionary provides the foundational entry, giving both the Latin and Law French forms and correctly situating the phrase in "old English practice." Burrill accurately describes the mechanics — oath of denial plus compurgators — and flags the Blackstone reading without endorsing it. The entry in Burrill is truncated in available form, but the core definition is reliable.
Blackstone's treatment (3 Bl. Com. 341) is the most frequently cited secondary authority and is worth consulting directly, both for his substantive explanation and for the interpretive tension Burrill identifies. Blackstone writes from a position of looking back at a procedure already moribund, which colors his framing.
Neither Burrill nor Blackstone provides significant detail on the compurgators' role as distinct from the principal oath-taker — a gap that researchers tracing the evidentiary theory of compurgation will need to fill from the Year Books and from Maitland's historical work on early English procedure.
---