The word compurgation is composed of Latin, com "with" and purgare "to make clean, cleanse, excuse". Latin com- is also an intensifier and turns a word into the superlative form, so compurgation, by etymology, means "to thoroughly clean or excuse".
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The Benefit of Clergy Act 1402 (4 Hen. 4 c.3) was an Act passed during the reign of Henry IV of England by the Parliament of England. It abolished compurgation for high treason and theft.
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There were no public prosecutors, and no material difference between criminal and civil cases existed. Suits in law would be initiated by the parties. Legal proceedings were of three kinds: trial by eyewitnesses, trial by compurgation and trial by jury.
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The bishops were furthermore obligated to "seek out" heretics. They were to make bi- or triannual rounds of their dioceses, visiting locations of suspicion and questioning the people about the existence of heresy. The people would be required to swear under oath (compurgation) anything they knew about heretical activity. All oath-breakers were to be treated as heretics.
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One of the laws of Ethelred the Unready declared that untrustworthy men were to be sent to the triple ordeal, that is, an ordeal of hot iron where the iron is three times heavier than that used in the simple ordeal, unless his lord and two other knights swear that he has not been accused of a crime recently, in which case he would be sent to an ordinary ordeal of hot iron. Unlike other European societies, the English rarely employed the ordeal in non-criminal proceedings. The mandatory use of the ordeal in certain criminal proceedings appears to date from the Assize of Clarendon in 1166. Prior to then, compurgation was the most usual method of proof, and the ordeal was used in cases where there was some presumption of guilt against the accused or when the accused was bound to fail in compurgation.
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In cases of acts that could be atoned for by mulcts, the defendant could also initiate action by offering such at the Thing.Holmbäck & Wessén 1933, p. xxxix. Legal proceedings were of three kinds: trial by eyewitnesses, trial by compurgation and trial by jury. If the plaintiff could bring, in most cases, six sworn free and freeborn men as eyewitnesses, the case was closed, and now further action from the defendant would be allowed; he was convicted.
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Assach, in Welsh law, was an ancient form of compurgation used in Wales. A person on trial was allowed to call in 300 compurgators, including neighbors and acquaintances, who would swear that the accused person was speaking truth in making oath of his innocence. A statute from 1413 (I Henry V., c. 5), 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.
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This caused conflict with the church, as under canon law illegitimate children could not inherit. Once a case came to court, the method used to come to a decision was usually by compurgation. Under this system the person accused or the parties to a dispute would give their version under oath, following which they had to find a number of others who would take an oath that the principal's oath could be trusted. The number of compurgators required depended on the nature of the case.
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The procedure in a wager of law is traced by Blackstone to the Mosaic law, Ex. xxii. 10; 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 connexion, with the sponsio and the decisory oath of Roman law, and the reference to oath of Scottish law.
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There were three types of manorial court: the court of the honour; the court baron; and the court customary, also known as the halmote court. Each manor had its own laws promulgated in a document called the custumal, and anyone in breach of those laws could be tried in a manorial court. The earlier Anglo-Saxon method of trial by ordeal or of compurgation was modified by the Normans into trial by a jury made up of 12 local freemen. The lord or his steward would be the chairman, whilst the parish clerk would write the record on the manorial rolls.
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Charles-Edwards The Welsh laws p.15 A person accused of a crime could deny the charge by denying it on oath and finding a certain number of persons prepared to go on oath that they believed his or her own oath, a system known as compurgation. The number of persons required to swear depended on the gravity of the alleged crime; for example denying a homicide could require 300 compurgators, while if a woman accused a man of rape, the man would have to find 50 men prepared to swear to his innocence. For lesser crimes a smaller number would be sufficient.
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When it came to evidence in other European courts, things such as compurgation (the defendant taking an oath over his stance and getting around twelve others to swear that they believe him) were still used in many cases. Trials at courts of piepowders were short, quick and informal. In 12th century England and Scotland, a decision had to be made within a day and a half (before the third tide) of the accusation. If the court ruled against the defendant and the defendant could not pay the decided amount, his property could be seized, appraised, and sold to cover the costs.
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The procedure in a wager of law is traced by Blackstone to the Mosaic law, Ex. xxii. 10; 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 connexion, with the and the decisory oath of Roman law, and the reference to oath of Scots law (see Oath). 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.
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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.
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He argued that he was essoined (had made a valid excuse) for that session, not only for routine attendance but for a special purpose for which the court had summoned him. He "made his law" by compurgation and escaped punishment. He was fined 5 shillings by the court of 11 March 1277 for giving false evidence in a case involving Thomas Ulf, a man from his own village, and the jury were fined, collectively, twelve shillings for believing him, presumably because they were all suspected of collusion. On 14 March 1278 his son, also Roger, was accused of raising the hue and cry to prevent the abbot's bailiffs taking away a distrained item, perhaps an animal.
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Compurgation, also called 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 legal wager, which is the provision of surety at the beginning of legal action to minimize frivolous litigation.
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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, and Queensland at some point before the Queensland Common Practice Act of 1867 which makes direct reference to the abolition of wager of law. "Wager of Law, obsolete for centuries" was "a living fossil ... a dead letter statute" and was repealed in England in 1833.
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A distinction was made between those accused fama publica (by public outcry) and those accused on the basis of specific facts. Those accused fama publica were able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts and those who were thought to have bad character were made to undergo the ordeal. The Assize of Clarendon declared that all those said by a jury of presentment to be "accused or notoriously suspect" of robbery, thievery, or murder or of receiving anyone who had committed such a wrong were to be put to the ordeal of water. These juries of presentment were the hundred juries and vills, and these groups, in effect, made the intermediate decision of whether an accused person would face the more final judgment of the ordeal.
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Witnesses could also be called, including eyewitnesses of the crime (gwybyddiaid). A witness who has once been proved to have given false testimony on oath was barred from ever appearing as a witness again. The task of the judge, having considered the case, was to determine what sort of proof was appropriate and which of the parties was to be required to produce proof, whether by the calling of witnesses, by compurgation or by pledges, then in the light of the proof to adjudicate on the case and impose the appropriate penalty in accordance with the law if a penalty was called for.R.R. Davies The administration of law in medieval Wales: the role of the Ynad Cwmwd (Judex Patriae) in Charles-Edwards, Owen and Walters Lawyers and laymen p.
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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. 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.
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