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Compurgation, also called trial by oath, wager of law, and oath-helping, was a defence used primarily in medieval law. A defendant could establish his innocence or nonliability by taking an oath and by getting a required number of persons, typically twelve, to swear they believed the defendant's oath. The wager of law was essentially a character reference, initially by kin and later by neighbours (from the same region as the defendant), often 11 or 12 men, and it was a way to give credibility to the oath of a defendant at a time when a person's oath had more credibility than a written record. It can be compared to a legal wager, which is the provision of surety at the beginning of legal action to minimize frivolous litigation.
Compurgation was found in early Germanic law, in early French law ( très ancienne coutume de Bretagne), in Welsh law, and in the English ecclesiastical courts until the seventeenth century. In common law it was substantially abolished as a defence in felonies by the Constitutions of Clarendon in 1164. The defence was still permitted in for debt and vestiges of it survived until its statutory repeal at various times in common law countries: in England in 1833, and Queensland at some point before the Queensland Common Practice Act of 1867 which makes direct reference to the abolition of wager of law.
Supervised by a priest, the defendant is asked to hold a red-hot iron bar in his or her hand, or to take a stone out of a boiling boiler. If the defendant's hand recovers normally, he or she is innocent; if it does not, he or she is guilty.
The use of the oath instead of the real or feigned combat – real in English law, feigned in Roman law – no doubt represents an advance in legal development. The technical term sacramentum is the bond of union between the two stages of law. In the wager of law the defendant, with eleven compurgators, appeared in court, and the defendant swore that he did not owe the debt, or (in detinue) that he did not detain the plaintiff's chattel; while the compurgators swore that they believed that he spoke the truth.
Wager of law was practised in England (and English American colonies) until the 16th century, in criminal matters, and the 19th century, in civil matters.
Welsh law allowed for a form of compurgation called assach, which required not 12 but 300 compurgators. A statute from 1413 (1 Hen. 5. c. 6), refers to the then late rebellion in Wales and complains that the Welshmen are still taking revenge for the deaths of their kinsmen against the king's faithful lieges. Some of such lieges they keep in prison until they have paid ransom, or until they have purged themselves of the death of the said rebels.
The Lateran Council of 1215 effectively abolished trial by ordeal in Catholic countries (which England was at the time) by forbidding priests from taking part, thus robbing it of its legitimacy. Trial by battle was abolished in 1819 and wager of law was abolished in 1833, although both had fallen into disuse before their formal abolition.
Wager of law was used as late as 1829, when the Rev. Fearon Jenkinson of Gnosall, Staffordshire used it against a Stafford ironmonger who claimed he was owed money by him. Jenkinson and his compurgators did not appear on the date. Chester Chronicle, 5 June 1829.
Wager of law survived to recent centuries and in many jurisdictions it has been abolished by statute. It was abolished in New South Wales in 1841 by the Advancement of Justice Act 1841 (both Victoria and Queensland were still part of New South Wales at this time). This was re-enacted after separation of Queensland from New South Wales in the Queensland Common Law Practice Act 1867, but was strictly unnecessary, given its earlier abolition in 1841 which makes direct reference to the abolition of wager of law.
No wager of law was allowed in assumpsit, even though the cause of action were a simple debt. This led to the general adoption of assumpsit – proceeding originally upon a fictitious averment of a promise by the defendant – as a means of recovering debts. Where a penalty was created by statute, it became a common form to insert a proviso that no wager of law was to be allowed in an action for the penalty. Wager of law was finally abolished in 1833 (3 & 4 William IV. c. 42).
In Islamic law
The practice of compurgation (known as qasāma) was a part of the customary penal law in pre-Islamic Arabia, and became a part of early Fiqh. If the body of a murdered person was found on occupied lands or a village, fifty inhabitants were required to take an oath that they did not cause the person's death, nor did they have knowledge of who did. If fewer than fifty persons were available, the people present had to swear more than once until fifty oaths had been obtained. This freed the people at the scene of criminal liability, but they were bound to pay blood money to the of the decedent. (2025). 9780521005807, Cambridge University Press. ISBN 9780521005807
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