In Antiquities of the Law of Evidence - Compurgation, Henry Black refered to the process of compurgation as a species of exculpatory oath1 as follows:
"... exculpatory oaths .... The fundamental idea - that one charged with crime or with default in a civil obligation shold be permitted to clear himself by a solemn asservation of his innocence under the sanction of an oath - appears to be one of the most venerable of legal notions....
"Compurgation ... was a mode of trial in which the person charged or accused cleared himself of that which was imputed to him, be it himicide or breach of contract, by his solemn declaration that he was inocent and by producing a certain number of companions who, at the same time, swore that they believed which he had spoken..."
Thus, the essence of
compurgation was the assoctaion with collateral oaths of credibility. The collaterals who supplied the oaths of credibility were called
compurgators or
oath-helpers. The number and social rank of the
compurgators added to the strength of the proposed
compurgation.
In Thangarasa v. Gore Mutual Insurance, the tribunal chair adopted these words to define compurgation:
"A trial by which a defendant could have supporters (called compurgators), frequently 11 in number, testify that they thought the defendant was telling the truth."
In R. v. Beland, Justice Bertha Wilson of the Supreme Court of Canada (in dissent, ¶82), had occasion to reflect on this ancient term:
"Oath-helping or compurgation was, as I understand it, a method used to prove one's case in pre-Norman England. The accused in a criminal case or the defendant in a civil case could prove his innocence by providing a certain number of compurgators who would swear the truth of his oath. The compurgators swore a set oath. If they departed from it in the slightest, the "oath burst" and the opposing party won. The practice fell into desuetude in the 13th century."
REFERENCES:
- Black, Henry, Antiquities of the Law of Evidence - Compurgation; 27 Am. L. Rev. 498 (1893)
- Note 1: Exoneration by exculpatory oath was a legal phonomena recorded in the Bible, Exodus 22: "If anyone gives a donkey, an ox, a sheep or any other animal to their neighbor for safekeeping and it dies or is injured or is taken away while no one is looking, he issue between them will be settled by the taking of an oath before the Lord that the neighbor did not lay hands on the other person’s property."
- R. v. Beland, [1987] 2 S.C.R. 398
- Thangarasa v. Gore Mutual Insurance Co., [2005] O.F.S.C.D. 12