Chapter 2

"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ."[14]

The corresponding chapter in the Great Charter, granted by Henry III., (1225,) and confirmed by Edward I., (1297,) (which charter is now considered the basis of the English laws and constitution,) is in nearly the same words, as follows:

"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ."

The most common translation of these words, at the present day, is as follows:

"No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed,nor will we (the king) pass upon him, nor condemn him, unless by the judgment of his peers, or the law of the land."

"Nec super eum ibimus, nec super eum mittemus."

There has been much confusion and doubt as to the true meaning of the words, "nec super eum ibimus, nec super eum mittemus." The more common rendering has been, "nor will we pass upon him, nor condemn him." But some have translated them to mean, "nor will we pass upon him, nor commit him to prison." Coke gives still a different rendering, to the effect that "No man shall be condemned at the king's suit, either before the king in his bench, nor before any other commissioner or judge whatsoever."[15]

But all these translations are clearly erroneous. In the firstplace, "nor will we pass upon him,"—meaning thereby to decide upon his guilt or innocencejudicially—is not a correct rendering of the words, "nec super eum ibimus." There is nothing whatever, in these latter words, that indicatesjudicialaction or opinion at all. The words, in their common signification, describephysicalaction alone. And the true translation of them, as will hereafter be seen, is,"nor will we proceed against him," executively.

In the second place, the rendering, "nor will we condemn him," bears little or no analogy to any common, or even uncommon, signification of the words "nec super eum mittemus." There is nothing in these latter words that indicatesjudicialaction or decision. Their common signification, like that of the wordsnec super eum ibimus, describesphysicalaction alone. "Nor will we send upon (or against) him," would be the most obvious translation, and, as we shall hereafter see, such is the true translation.

But although these words describephysicalaction, on the part of the king, as distinguished from judicial, they nevertheless do not mean, as one of the translations has it, "nor will we commit him to prison;" for that would be a mere repetition of what had been already declared by the words "nec imprisonetur." Besides, there is nothing about prisons in the words "nec super eum mittemus;" nothing about sendinghimanywhere; but only about sending (something or somebody)uponhim, oragainsthim—that is,executively.

Coke's rendering is, if possible, the most absurd and gratuitous of all. What is there in the words, "nec super eum mittemus" that can be made to mean "nor shall he be condemned before any other commissioner or judge whatsoever?" Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of ajudicialpower, by the king, or his judges, which is nowhere given them.

Neither the words, "nec super eum ibimus, nec super eum mittemus," nor any other words in the whole chapter, authorize, provide for, describe, or suggest, anyjudicialaction whatever, on the part either of the king, or of his judges, or of anybody,except the peers, or jury. There is nothing aboutthe king'sjudgesat all. And there is nothing whatever, in the whole chapter,so far as relates to the action of the king, that describes or suggests anything butexecutiveaction.[16]

But that all these translations are certainly erroneous, is proved by a temporary charter, granted by John a short time previous to the Great Charter, for the purpose of giving an opportunity for conference, arbitration, and reconciliation between him and his barons. It was to have force until the matters in controversy between them could be submitted to the Pope, and to other persons to be chosen, some by the king, and some by the barons. The words of the charter are as follows:

"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec eos nec homines suos capiemus, nec disseisiemusnec super eos per vim vel per arma ibimusnisi per legem regni nostri vel per judicium parium suorum in curia nostra donec consideratio facta fuerit," &c., &c.

That is, "Know that we have granted to our barons who are opposed to us, that we will neither arrest them nor their men, nor disseize them,nor will we proceed against them by force or by arms, unless by the law of our kingdom, or by the judgment of their peers in our court, until consideration shall be had," &c., &c.

A copy of this charter is given in a note in Blackstone's Introduction to the Charters.[17]

Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause of Magna Carta, on the principle that laws and charters on the same subject are to be construed with reference to each other. See3 Christian's Blackstone, 41,note.

The true meaning of the words,nec super eum ibimus, nec super eum mittemus, is also proved by the "Articles of the Great Charter of Liberties," demanded of the king by the barons, and agreed to by the king, under seal, a few days before the date of the Charter, and from which the Charter was framed.[18]Here the words used are these:

"Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur nec utlagetur nec exuletur nec aliquo modo destruaturnec rex eat vel mittat super eum vinisi per judicium parium suorum vel per legem terræ."That is, "The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, nor in any manner destroyed,nor shall the king proceed or send (any one) against himWITH FORCE, unless by the judgment of his peers, or the law of the land."

That is, "The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, nor in any manner destroyed,nor shall the king proceed or send (any one) against himWITH FORCE, unless by the judgment of his peers, or the law of the land."

The true translation of the wordsnec super eum ibimus, nec super eum mittemus, in Magna Carta, is thus made certain, as follows, "nor will we (the king) proceed against him, nor send (any one) against himWITH FORCE OR ARMS."[19]

It is evident that the difference between the true and false translations of the words,nec super eum ibimus, nec super eum mittemus, is of the highest legal importance, inasmuch as the true translation,nor will we (the king) proceed against him, nor send (any one) against him by force or arms, represents the king only in anexecutivecharacter,carrying the judgment of the peers and "the law of the land" into execution; whereas the false translation,nor will we pass upon him, nor condemn him, gives color for the exercise of ajudicialpower, on thepart of the king, to which the king had no right, but which, according to the true translation, belongs wholly to the jury.

"Per legale judicium parium suorum."

The foregoing interpretation is corroborated, (if it were not already too plain to be susceptible of corroboration,) by the true interpretation of the phrase "per legale judicium parium suorum."

In giving this interpretation, I leave out, for the present, the wordlegale, which will be defined afterwards.

The true meaning of the phrase,per judicium parium suorum, is,according to the sentence of his peers. The wordjudicium, judgment, has a technical meaning in the law, signifying the decree rendered in the decision of a cause. In civil suits this decision is called ajudgment; in chancery proceedings it is called adecree; in criminal actions it is called asentence, orjudgment, indifferently. Thus, in a criminal suit, "a motion in arrest ofjudgment" means a motion in arrest ofsentence.[20]

In cases of sentence, therefore, in criminal suits, the wordssentenceandjudgmentare synonymous terms. They are, to this day, commonly used in law books as synonymous terms. And the phraseper judicium parium suorum, therefore, implies that the jury are to fix the sentence.

The wordpermeansaccording to. Otherwise there is no sense in the phraseper judicium parium suorum. Therewould be no sense in saying that a king might imprison, disseize, outlaw, exile, or otherwise punish a man, or proceed against him, or send any one against him,by force or arms, bya judgment of his peers; but there is sense in saying that the king may imprison, disseize, and punish a man, or proceed against him, or send any one against him, by force or arms,according toa judgment, orsentence, of his peers; because in that case the king would be merely carrying the sentence or judgment of the peers into execution.

The wordper, in the phrase "perjudicium parium suorum," of course means precisely what it does in the next phrase, "perlegem terræ;" where it obviously meansaccording to, and notby, as it is usually translated. There would be no sense in saying that the king might proceed against a man by force or arms,bythe law of the land; but there is sense in saying that he may proceed against him, by force or arms,according tothe law of the land; because the king would then be acting only as an executive officer, carrying the law of the land into execution. Indeed, the true meaning of the wordby, as used in similar cases now, always isaccording to; as, for example, when we say a thing was done by the government, or by the executive,by law, we mean only that it was done by themaccording to law; that is, that they merely executed the law.

Or, if we say that the wordbysignifiesby authority of, the result will still be the same; for nothing can be doneby authority oflaw, except what the law itself authorizes or directsto be done; that is, nothing can be done by authority of law, except simply to carry the law itself into execution. So nothing could be doneby authority ofthe sentence of the peers, orby authority of"the law of the land," except what the sentence of the peers, or the law of the land, themselves authorized or directed to be done; nothing, in short, but to carry the sentence of the peers, or the law of the land, themselves into execution.

Doing a thingbylaw, oraccording tolaw, is only carrying the law into execution. And punishing a manby, oraccording to, the sentence or judgment of his peers, is only carrying that sentence or judgment into execution.

If these reasons could leave any doubt that the wordperis to be translatedaccording to, that doubt would be removed by the terms of an antecedent guaranty for the trial by jury, granted by the Emperor Conrad, of Germany,[21]two hundred years before Magna Carta. Blackstone cites it as follows:—(3 Blackstone, 350.)

"Nemo beneficium suum perdat, nisisecundumconsuetudinem antecessorum nostrorum, et judicium parium suorum." That is, No one shall lose his estate,[22]unlessaccording to("secundum") the custom (or law) of our ancestors, and (according to) the sentence (or judgment) of his peers.

The evidence is therefore conclusive that the phraseper judicium parium suorummeansaccording to the sentence of his peers; thus implying that the jury, and not the government, are to fix the sentence.

If any additional proof were wanted that juries were to fix the sentence, it would be found in the following provisions of Magna Carta, viz.:

"A freeman shall not be amerced for a small crime, (delicto,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him hiscontenement;[23]and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, saving to him his waynage,[24]if he fall under our mercy;and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but by the oath of honest men of the neighborhood. Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime."[25]

Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury.

Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones. So, also, in regard to other punishments than fines. If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones. As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments.[26]

"Legale."

The word "legale," in the phrase"per legale judicium parium suorum," doubtless means two things. 1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had. 2. That the sentence shall be for a legal cause or offence. If, therefore, a jury should convict and sentence a man, either without giving him a legal trial, or for an act that was not really and legally criminal, the sentence itself would not be legal; and consequently this clause forbids the king to carry such a sentence into execution; for the clause guarantees that he will execute no judgment or sentence, except it belegale judicium, a legal sentence. Whether a sentence be a legal one, would have to be ascertained by the king or his judges, on appeal, or might be judged of informally by the king himself.

The word "legale" clearly did not mean that thejudicium parium suorum(judgment of his peers) should be a sentence which any law (of the king) shouldrequirethe peers to pronounce; for in that case the sentence would not be the sentence of the peers, but only the sentence of the law, (that is, of the king); and the peers would be only a mouthpiece of the law, (that is, of the king,) in uttering it.

"Per legem terræ."

One other phrase remains to be explained, viz., "per legem terræ," "by the law of the land."

All writers agree that this means thecommon law. Thus, Sir Matthew Hale says:

"The common law is sometimes called, by way of eminence,lex terræ, as in the statute ofMagna Carta, chap. 29, where certainly the common law is principally intended by those words,aut per legem terræ; as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III., chap. 3, which is but an exposition and explanation of that statute. Sometimes it is calledlex Angliæ, as in the statute of Merton, cap. 9, "Nolumus leges Angliæ mutari," &c., (We will that the laws of England be not changed). Sometimes it is calledlex et consuetudo regni(the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I., cap.—, andde quo warranto, and divers others. But mostcommonly it is called the Common Law, or the Common Law of England; as in the statuteArticuli super Chartas, cap. 15, in the statute 25 Edward III., cap. 5, (4,) and infinite more records and statutes."—1Hale's History of the Common Law, 128.

This common law, or "law of the land,"the king was sworn to maintain. This fact is recognized by a statute made at Westminster, in 1346, by Edward III., which commences in this manner:

"Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived thatthe law of the land, which we by oath are bound to maintain," &c.—St. 20 Edward III.

The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, thatlegem terræ, the law of the land, mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by oath to observe;and that it did not include any statutes or laws enacted by the king himself, the legislative power of the nation.

If the termlegem terræhad included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever upon the power of the king. The king could make laws at any time, and such ones as he pleased. He could, therefore, have done anything he pleased,by the law of the land, as well as in any other way, if his own laws had been "the law of the land." If his own laws had been "the law of the land," within the meaning of that term as used in Magna Carta, this chapter of Magna Carta would have been sheer nonsense, inasmuch as the whole purport of it would have been simply that "no man shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed (by the king); nor shall the king proceed against him, nor send any one against him with force and arms, unless by the judgment of his peers,or unless the king shall please to do so."

This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, orafforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the termlegem terræ. But iflegem terræwas the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.

Such, then, being the meaning oflegem terræ, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power and under the protection of his peers, and the common law alone; that, in short, Magna Carta suffered no man to be punished for violating any enactment of the legislative power, unless the peers or equals of the accused freely consented to it, or the common law authorized it; that the legislative power,of itself, was wholly incompetent torequirethe conviction or punishment of a man for any offence whatever.

Whether Magna Carta allowed of any other trial than by jury.

The question here arises, whether "legem terræ" did not allow of some other mode of trial than that by jury.

The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) thatlegem terræauthorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been known in England, in criminal cases, for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in "legem terræ" as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to.[27]For all practical purposes ofthe present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury.

Whether Magna Carta allowed sentence to be fixed otherwise than by the jury.

Still another question arises on the wordslegem terræ, viz., whether, in cases where the question of guilt was determined by the jury, the amount ofpunishmentmay not have been fixed bylegem terræ, the Common Law, instead of its being fixed by the jury.

I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time,lex terræ, the common law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any other case. Doubtless certain punishments were common and usual for certain offences; but I do not think it can be shown that thecommon law, thelex terræ, which the king was sworn to maintain, required any one specific punishment, or any precise amount of punishment, for any one specific offence. If such a thing be claimed, it must be shown, for it cannot be presumed. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be inflicted in any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral constitutions of the offenders, and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and villeins, "shall not be amerced for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it;" and that "none of the aforesaid amercements shall be imposed (or assessed) but by the oaths of honest men of the neighborhood;" and that "earls and barons shall not be amerced but by their peers, and according to the quality of the offence."

All this implies that the moral quality of the offence was to be judged of at the trial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be.

I think, therefore, it must be conceded that, in all cases, tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons.

1. It is uncertain whether thecommon lawfixed the punishment of any offence whatever.

2. The words "per judicium parium suorum,"according to the sentence of his peers, imply that the jury fixed the sentence insomecases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown.

3. The express provisions of Magna Carta, before adverted to, that no amercements, or fines, should be imposed upon freemen, merchants, or villeins, "but by the oath of honest men of the neighborhood," and "according to the degree of the crime," and that "earls and barons should not be amerced but by their peers, and according to the quality of the offence,"provesthat, at least, there was no common law fixing the amount offines, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount offines, or if it was to be no longer in force, it is reasonable to infer, (in the absence of all evidence to the contrary,) either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose.[28]

Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all offences. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king even was punishableby fine. When a criminal was unable to pay his fine, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, (or, in the case of murder, the kindred of the deceased,) were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offences.[29]And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all, prescribed that the offender should "be grievously amerced," or "pay a great fine to the king," or a "grievous ransom,"—with the alternative in some cases (perhapsunderstoodin all) of imprisonment, banishment, or outlawry, in case of non-payment.[30]

Judging, therefore, from the special provisions in Magna Carta, requiringfines, or amercements, to be imposed only by juries, (without mentioning any other punishments;) judging, also, from the statutes which immediately followed Magna Carta, it is probable that the Saxon custom of punishing all, or nearly all, offences byfines, (with the alternative to the criminal of being imprisoned, banished, or outlawed, and exposed to private vengeance, in case of non-payment,) continued until the time of Magna Carta; and that in providing expressly thatfinesshould be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted; that if there were to be any others, they were to be fixed by the juries; and consequently that nothing was left to be fixed by "legem terræ."

But whether the common law fixed the punishment of any offences, or not, is a matter of little or no practical importance at this day; because we have no idea of going back to any common law punishments of six hundred years ago, if, indeed, there were any such at that time. It is enough for us to know—and this is what it is material for us to know—that the jury fixed the punishments, in all cases, unless they were fixed by thecommon law; that Magna Carta allowedno punishments to be prescribed by statute—that is, by the legislative power—nor in any other manner by the king, or his judges, in any case whatever; and, consequently, that all statutes prescribing particular punishments for particular offences, or giving the king's judges any authority to fix punishments, were void.

If the power to fix punishments had been left in the hands of the king, it would have given him a power of oppression, which was liable to be greatly abused; which there was no occasion to leave with him; and which would have been incongruous with the whole object of this chapter of Magna Carta; which object was to take all discretionary or arbitrary power over individuals entirely out of the hands of the king, and his laws, and entrust it only to the common law, and the peers, or jury—that is, the people.

What lex terræ did authorize.

But here the question arises, What then did "legem terræ" authorize the king, (that is, the government,) to do in the case of an accused person, if it neither authorized any other trial than that by jury, nor any other punishments than those fixed by juries?

The answer is, that, owing to the darkness of history on the point, it is probably wholly impossible, at this day, to state,with any certainty or precision, anything whatever that thelegem terræof Magna Carta did authorize the king, (that is, the government,) to do, (if, indeed, it authorized him to do anything,) in the case of criminals,other than to have them tried and sentenced by their peers, for common law crimes; and to carry that sentence into execution.

The trial by jury was a part oflegem terræ, and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence, implies that they were totrythe accused; otherwise they could not know what sentence, or whether any sentence, ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the essence ofthe trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial and sentence, then, were wholly in the hands of the jury.

We also have sufficient evidence of the nature of the oath administered to jurors in criminal cases. It was simply, thatthey would neither convict the innocent, nor acquit the guilty. This was the oath in the Saxon times, and probably continued to be until Magna Carta.

We also know that, in case ofconviction, the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conviction had been against law.

So much, therefore, of thelegem terræof Magna Carta, we know with reasonable certainty.

We also know that Magna Carta provides that "No bailiff (balivus) shall hereafter put any man to his law, (put him on trial,) on his single testimony, without credible witnesses brought to support it." Coke thinks "that under this wordbalivus, in this act, is comprehended every justice, minister of the king, steward of the king, steward and bailiff." (2 Inst. 44.) And in support of this idea he quotes from a very ancient law book, called the Mirror of Justices, written in the time of Edward I., within a century after Magna Carta. But whether this were really a common law principle, or whether the provision grew out of that jealousy of the government which, at the time of Magna Carta, had reached its height, cannot perhaps now be determined.

We also know that, by Magna Carta, amercements, or fines, could not be imposed to the ruin of the criminal; that, in the case of a freeman, hiscontenement, or means of subsisting in the condition of a freeman, must be saved to him; that, in the case of a merchant, his merchandise must be spared; and in the case of a villein, hiswaynage, or plough-tackle and carts. This also is likely to have been a principle of the common law, inasmuch as, in that rude age, when the means of getting employment as laborers were not what they arenow, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him.

We also know,generally, that, at the time of Magna Carta,all acts intrinsically criminal, all trespasses against persons and property, were crimes, according tolex terræ, or the common law.

Beyond the points now given, we hardly know anything, probably nothingwith certainty, as to what the "legem terræ" ofMagna Cartadid authorize, in regard to crimes. There is hardly anything extant that can give us any real light on the subject.

It would seem, however, that there were, even at that day, some common law principles governing arrests; and some common law forms and rules as to holding a man for trial, (by bail or imprisonment;) putting him on trial, such as by indictment or complaint; summoning and empanelling jurors, &c., &c. Whatever these common law principles were, Magna Carta requires them to be observed; for Magna Carta provides for the whole proceedings, commencing with the arrest, ("no freeman shall bearrested," &c.,) and ending with the execution of the sentence. And it provides that nothing shall be done, by the government, from beginning to end, unless according to the sentence of the peers, or "legem terræ," the common law. The trial by peers was a part oflegem terræ, and we have seen that the peers must necessarily have governed the whole proceedings at the trial. But all the proceedings for arresting the man, and bringing him to trial, must have been had before the case could come under the cognizance of the peers, and they must, therefore, have been governed by other rules than the discretion of the peers. We mayconjecture, although we cannot perhaps know with much certainty, that thelex terræ, or common law, governing these other proceedings, was somewhat similar to the common law principles, on the same points, at the present day. Such seem to be the opinions of Coke, who says that the phrasenisi per legem terræmeansunless by due process of law.

Thus, he says:

"Nisi per legem terræ. But by the law of the land.Forthe true sense and exposition of these words, see the statute of 37 Edw. III., cap. 8, where the words,by the law of the land, are renderedwithout due process of law; for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold,without process of the law; that is, by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.

"Without being brought in to answer but by due process of the common law.

"No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original,according to the old law of the land."—2 Inst.50.

The foregoing interpretations of the wordsnisi per legem terræare corroborated by the following statutes, enacted in the next century after Magna Carta.

"That no man, from henceforth, shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king's hands, against the form of the Great Charter,and the law of the land."—St. 5 Edward III., Ch.9. (1331.)

"Whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs,unless it be by the law of the land; it is accorded, assented, and established, that from henceforth none shall be taken by petition, or suggestion made to our lord the king, or to his council,unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original at the common law; nor that none be put out of his franchises, nor of his freehold,unless he be duly brought into answer, and forejudged of the same by the course of the law; and if anything be done against the same, it shall be redressed and holden for none."—St. 25 Edward III., Ch.4. (1350.)

"That no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answerby due process of law."—St. 28 Edward III., Ch.3. (1354.)

"That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to theold law of the land. And if anything from henceforth be done to the contrary, it shall be void in law, and holden for error."—St. 42 Edward III., Ch.3. (1368.)

The foregoing interpretation of the wordsnisi per legem terræ—that is,by due process of law—including indictment, &c., has been adopted as the true one by modern writers and courts; as, for example, by Kent, (2Comm.13,) Story, (3Comm.661,) and the Supreme Court of New York, (19Wendell, 676; 4Hill, 146.)

The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that "no person shall be deprived of life, liberty, or property,without due process of law."[31]

Whether the wordVELshould be rendered byOR,or byAND.

Having thus given the meanings, or rather the applications, which the wordsvel per legem terræwill reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the wordvel, instead of being rendered byor, as it usually is, ought to be rendered byand, inasmuch as the wordvelis often used foret, and the whole phrasenisi per judicium parium suorum, vel per legem terræ, (which would then read, unless by the sentence of his peers,andthe law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does.

Blackstone suggests that this may be the true reading. (Charters, p. 41.) Also Mr. Hallam, who says:

"Nisi per legale judicium parium suorum,velper legem terræ. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party's goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand, preserved in the Town-clerk's office in London, called Liber Custumarum et Regum antiquarum, a various reading,etper legem terræ, occurs.Blackstone's Charters, p. 42 (41.) And the wordvelis so frequently used foret, that I am not wholly free from a suspicion that itwas so intended in this place. The meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action, found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations; but I do not offer it with much confidence."—2Hallam's Middle Ages, Ch.8,Part2, p. 449,note.[32]

The idea that the wordvelshould be rendered byand, is corroborated, if not absolutely confirmed, by the following passage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carta, he calls it,

"A privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before: 'nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum,etjudicium parium suorum.'" (No one shall lose his estate unless according to the custom of our ancestors, and the judgment of his peers.)—3 Blackstone, 350.

If the wordvelbe rendered byand, (as I think it must be, at least in some cases,) this chapter of Magna Carta will then read that no freeman shall be arrested or punished, "unless according to the sentence of his peers,andthe law of the land."

The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for saying that a man might be punished in either of two ways, viz., according to the sentence of his peers,oraccording to the law of the land. In the other case, it requires both the sentence of his peersandthe law of the land (common law) to authorize his punishment.

If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of thecommon law.

But I apprehend the word vel must be rendered both byand, and byor; that in cases of ajudgment, it should be rendered byand, so as to require the concurrence both of "the judgment of the peersandthe law of the land," to authorize the king to make execution upon a party's goods or person; but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial,velshould be rendered by or, because there can have been no judgment of a jury in such a case, and "the law of the land" must therefore necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of an intention to bring to trial.

Having thus examined the language of this chapter of Magna Carta, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed,or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed against him, nor send any one against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers,and(oror, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)

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