Compurgation

Last updated

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.

Contents

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 civil actions for debt and vestiges of it survived until its statutory repeal at various times in common law countries: in England in 1833, [1] and Queensland at some point before the Queensland Common Practice Act of 1867 [2] which makes direct reference to the abolition of wager of law.

Etymology

The word compurgation is composed of Latin, com "with" and purgare "to make clean, cleanse, excuse". [3] Latin com- is also an intensifier [4] and turns a word into the superlative form, so compurgation, by etymology, means "to thoroughly clean or excuse".

Origins

The procedure in a wager of law is traced by Blackstone to the Mosaic law, Exodus 22:10–15; but it seems historically to have been derived from the system of compurgation, introduced into England from Normandy, a system which is now thought to have had an appreciable effect on the development of the English jury. It also has some points of resemblance, perhaps some historical connection, with the sponsio and the decisory oath of Roman law, and the reference to oath of Scottish law. [5]

[Compurgation] had originated in Anglo-Saxon England in the ties of kinship that bound people together in the period before the year 1000, a time when each man was responsible for the acts of his blood relatives. Later, kinship gave way to a more tribal affiliation and a loyalty to the place of one's birth. When disputes more often than not led to violence, it seemed natural that neighbors would band together. They aligned themselves with a neighbour who was accused in court and swore that in good conscience they believed he was telling the truth. The number of oath-helpers required depended on the defendant's rank and the character of the lawsuit. Eventually it became standard practice to bring eleven neighbours into court to swear for the defendant. The oath-helpers were called compurgators, and the wager of law was called compurgation. [6]

Wager of law, wager of battle and trial by ordeal

The wager of law, also called compurgation, is an old legal practice, dating back to Saxon and feudal times, which was contemporaneous to the appeal to God to prove fact by trial by battle (wager of battle, trial by combat, or judicial duel), and of trial by ordeal. [7]

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. [5]

Surety

A variation was for the defendant to give gage, or sureties, in an action of debt, and "that at a certain day assigned he would take a law, or oath, in open court, that he did not owe the debt, and at the same time bring with him eleven neighbors (called compurgators), who should avow upon their oaths that they believed in their consciences that he spoke the truth" (see the Tractatus of Glanvill, c. 1188).

Determining fact

Wager of law was replaced by jury, from early times, to determine fact, at a time when judges managed legal procedure and did not determine fact. Trial "by lawful Judgment of his Peers, or by the Law of the Land (legus terrae)" Cap. 29 of Magna Carta 1215 to 1297. [8]

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.

Supporting defendant's oath

A defendant who elected to "make his law" was permitted to make a statement before the court, swear an oath that it was true, and present one or more individuals, often 12, who swore that they believed he had told the truth under oath. The predominant form of defense in the feudal courts, it persisted for a time in the common-law courts. The individuals "did not testify about the fact itself and, indeed, might have no personal knowledge concerning it. The value of a man’s oath might vary with his status; sometimes it was necessary for a defendant to meet a charge by assembling oaths of a prescribed monetary value. Because oath making often had religious implications for those who served as oath helpers and because there was also a possibility of legal sanctions (penalties), individuals might refuse to give oaths for persons with bad reputations. One reason for the long survival of the practice was that 'wagers in law' were often considered better evidence than account books in cases of debt." [9]

Welsh law allowed for a form of compurgation called assach, which required not 12 but 300 compurgators. [10] 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. [11]

Abolition

As the kings consolidated their power, suppressing violence and increasing the authority of the courts, the wager of law lost some of its ancient power and became a nuisance to litigants, who suspected that it frequently opened the door to false swearing. Different forms of action developed that did not permit the wager of law as a defense, and plaintiffs used them as much as possible. The procedure of wager of law had long since been obsolete when it was abolished during the reign of Henry IV (1399–1413). [6]

The taking of oaths was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension. Thus it was not permitted where the defendant was not a person of good character, where the king sued, where the defendant was the executor or administrator of the person alleged to have owed the debt, or in any form of action other than those named, even though the cause of action were the same. [5]

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. [7]

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. [12]

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 [2] 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). [5]

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 Islamic jurisprudence. 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 agnates of the decedent. [13]

See also

Related Research Articles

<span class="mw-page-title-main">Jury trial</span> Type of legal trial

A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial, in which a judge or panel of judges makes all decisions.

In English law, the benefit of clergy was originally a provision by which clergymen accused of a crime could claim that they were outside the jurisdiction of the secular courts and be tried instead in an ecclesiastical court under canon law. The ecclesiastical courts were generally seen as being more lenient in their prosecutions and punishments, and defendants made many efforts to claim clergy status, often on questionable or fraudulent grounds.

The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts.

A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation.

<span class="mw-page-title-main">Trial by combat</span> Method of settling accusations within Germanic law by dueling

Trial by combat was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

<span class="mw-page-title-main">Trial by ordeal</span> Medieval judicial practice to determine guilt through a life-threatening experience

Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience. In medieval Europe, like trial by combat, trial by ordeal, such as cruentation, was sometimes considered a "judgement of God" : a procedure based on the premise that God would help the innocent by performing a miracle on their behalf. The practice has much earlier roots, attested to as far back as the Code of Hammurabi and the Code of Ur-Nammu.

A quasi-contract is a fictional contract recognised by a court. The notion of a quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems. Quasi contract laws have been deduced from the Latin statement "Nemo debet locupletari ex aliena iactura", which proclaims that no one should grow rich out of another person's loss. It was one of the central doctrines of Roman law.

The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".

<span class="mw-page-title-main">Anglo-Saxon law</span> Pre-conquest law in England

Anglo-Saxon law was the legal system of Anglo-Saxon England from the 6th century until the Norman Conquest of 1066. It was a form of Germanic law based on unwritten custom known as folk-right and on written laws enacted by kings with the advice of their witan or council. By the later Anglo-Saxon period, a system of courts had developed to administer the law, while enforcement was the responsibility of ealdormen and royal officials such as sheriffs, in addition to self-policing by local communities.

Assumpsit, or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, unjust enrichment. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the trespass on the case.

The history of Roman law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem. Though the periods in which these systems were in use overlapped one another and did not have definitive breaks, the legis actio system prevailed from the time of the XII Tables until about the end of the 2nd century BC, the formulary procedure was primarily used from the last century of the Republic until the end of the classical period, and cognitio extra ordinem was in use in post-classical times.

Audita querela is a writ, stemming from English common law, that serves to permit a defendant who has had a judgment rendered against him or her to seek relief of the consequences of such a judgment where there is some new evidence or legal defense that was not previously available. The writ is thus generally used to prevent a judgment from being executed where enforcement of that judgment would be "contrary to justice". At common law, the writ may be useful where a creditor engages in fraud before the judgment is rendered, or because the debt had been discharged, paid or otherwise satisfied after the judgment is rendered.

In the Roman litigation system, while the Legis Actiones procedure was in force during the early Republic, both parties had to lay down a legal wager at the preliminary hearing, probably to discourage frivolous litigation. In some cases, if the party lost, the wager went to the other party, to compensate him for his inconvenience, rather than to the court to cover costs.

<span class="mw-page-title-main">Court of Common Pleas (England)</span> English court for disputes between commoners (c. 1200 – 1880)

The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common Pleas served as one of the central English courts for around 600 years. Authorised by Magna Carta to sit in a fixed location, the Common Pleas sat in Westminster Hall for its entire existence, joined by the Exchequer of Pleas and Court of King's Bench.

<span class="mw-page-title-main">Juries in England and Wales</span> Law of trial by jury in England and Wales

In the legal jurisdiction of England and Wales, there is a long tradition of jury trial that has evolved over centuries. Under present-day practice, juries are generally summoned for criminal trials in the Crown Court where the offence is an indictable offence or an offence triable either way. All common law civil cases were tried by jury until the introduction of juryless trials in the new county courts in 1846, and thereafter the use of juries in civil cases steadily declined. Liability to be called upon for jury service is covered by the Juries Act 1974.

<span class="mw-page-title-main">Bill of Middlesex</span> English legal fiction used by the Court of Kings Bench until 1832

The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas. Hinging on the King's Bench's remaining criminal jurisdiction over the county of Middlesex, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints would be substituted.

<span class="mw-page-title-main">Court of King's Bench (England)</span> English common law court (c. 1200–1873)

The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the curia regis, the King's Bench initially followed the monarch on his travels. The King's Bench finally joined the Court of Common Pleas and Exchequer of Pleas in Westminster Hall in 1318, making its last travels in 1421. The King's Bench was merged into the High Court of Justice by the Supreme Court of Judicature Act 1873, after which point the King's Bench was a division within the High Court. The King's Bench was staffed by one Chief Justice and usually three Puisne Justices.

Vyavahāra is an important concept of Hindu law denoting legal procedure. The term is analyzed by Kātyāyana as follows: "Vi means ‘various,’ ava means ‘doubt,’ hara is ‘removal’; legal procedure is called by the term vyavahāra because ‘it removes various doubts.’” Kane defines it as follows: "When the ramifications of right conduct, that are together called dharma and that can be established with efforts have been violated, the dispute which springs from what is sought to be proved, is said to be vyavahāra." According to Donald Davis, “There are two basic meanings of vyavahāra. The first is a general sense of practice, business, or everyday transactions. The other, specific sense is legal procedure, the processes of litigation including a trial.” Legal procedure according to the dharmaśāstras includes: court, listening to and assessing witnesses and their testimony, deciding and enforcing punishment, and the pursuit of Justice in the face of Injustice. Davis later quotes the Nāradasmṛti in an attempt to answer the question why legal procedure came about in the Hindu tradition. The text states, “When men had dharma as their only focus and were speakers of the truth, there was no legal procedure, no enmity, and no (selfish) conflict. Legal procedure came into being when dharma was lost among men."

<i>Slades Case</i> Case in English contract law that ran from 1596 to 1602.

Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit, which was technically for deceit. The legal fiction used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts.

<span class="mw-page-title-main">Criminal Law Act 1827</span> United Kingdom legislation

The Criminal Law Act 1827 was an act of the Parliament of the United Kingdom, applicable only to England and Wales. It abolished many obsolete procedural devices in English criminal law, particularly the benefit of clergy. It was repealed by the Criminal Law Act 1967.

References

  1. ↑ Friedman, Lawrence Meir (1975), The Legal System: A Social Science Perspective, Russell Sage Foundation, p. 272
  2. 1 2 Common Law Practice Act 1867 (PDF), Office of the Queensland Parliamentary Counsel, 24 June 1994, Wager of law abolished – 3. No wager of law shall be allowed.
  3. ↑ English etymology of compurgation, myEtymology.com, archived from the original on 5 January 2011, retrieved 7 February 2012{{citation}}: CS1 maint: unfit URL (link)
  4. ↑ Delbridge, A; et al., eds. (1997), Macquarie Australia's National Dictionary, The Macquarie Library Pty, p. 388
  5. 1 2 3 4 Chisholm, Hugh, ed. (1911), "Wager"  , Encyclopædia Britannica , vol. 28 (11th ed.), Cambridge University Press, p. 229
  6. 1 2 Hamowy, Ronald (Fall 2003), "F. A. Hayek and the Common Law" (PDF), Cato Journal, 23 (2), Cato Institute, archived from the original (PDF) on 27 January 2012, retrieved 19 February 2012
  7. ↑ Featured Document: The Magna Carta, Archives.gov, retrieved 19 February 2012
  8. ↑ compurgation, Encyclopædia Britannica, Inc., retrieved 19 February 2012
  9. ↑ Fisher, H. A. L., "The Laws of Wales", The Collected Papers of Frederic William Maitland, retrieved 27 January 2006
  10. ↑ PD-icon.svg This article incorporates text from a publication now in the public domain :  Chambers, Ephraim, ed. (1728). "Assath, or assach". Cyclopædia, or an Universal Dictionary of Arts and Sciences . Vol. 1 (1st ed.). James and John Knapton, et al. p. 223.
  11. ↑ Chester Chronicle, 5 June 1829.
  12. ↑ Hallaq, Wael (2005). The Origins and Evolution of Islamic Law (7th ed.). UK: Cambridge University Press. p. 25. ISBN   978-0-521-00580-7.

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.