This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the term _legem terrae_. But if _legem terrae_ was 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 of _legem terrae_, 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 to _require_ the 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 terrae_" 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,) that _legem terrae_ authorized, 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 terrae_" 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 of the present day, therefore, it may be a.s.serted 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 words _legem terrae_, viz., whether, in cases where the question of guilt was determined by the jury, the amount of _punishment_ may not have been fixed by _legem terrae_, 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 terrae_, 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 the _common law_, the _lex terrae_, 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 const.i.tutions of the offenders, and the circ.u.mstances 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 a.s.sessed) 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 the _common law_ fixed 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 in _some_ cases 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," _proves_ that, at least, there was no common law fixing the amount of _fines_, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount of _fines_, 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 punishable by 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 (perhaps _understood_ in all) of imprisonment, banishment, or outlawry, in case of non-payment.[30]

Judging, therefore, from the special provisions in Magna Carta, requiring _fines_, 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 by _fines_, (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 that _fines_ should 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 terrae_."

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 the _common law_; that Magna Carta allowed no 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 terrae did authorize._

But here the question arises, What then did "_legem terrae_" 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 the _legem terrae_ of 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 of _legem terrae_, 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 to _try_ the 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 of the 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, that _they 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 of _conviction_, 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 the _legem terrae_ of 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."

c.o.ke thinks "that under this word _balivus_, 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, his _contenement_, 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, his _waynage_, 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 are now, 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 trespa.s.ses against persons and property, were crimes, according to _lex terrae_, or the common law.

Beyond the points now given, we hardly know anything, probably nothing _with certainty_, as to what the "_legem terrae_" of _Magna Carta_ did 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 be _arrested_," &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 terrae_," the common law. The trial by peers was a part of _legem terrae_, 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 may _conjecture_, although we cannot perhaps know with much certainty, that the _lex terrae_, 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 c.o.ke, who says that the phrase _nisi per legem terrae_ means _unless by due process of law_.

Thus, he says:

"_Nisi per legem terrae. But by the law of the land._ For the 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 rendered _without 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 words _nisi per legem terrae_ are 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, a.s.sented, and established, that from henceforth none shall be taken by pet.i.tion, 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 answer _by 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 the _old 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 words _nisi per legem terrae_--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, (2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New York, (19 _Wendell_, 676; 4 _Hill_, 146.)

The fifth amendment to the const.i.tution 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 word_ VEL _should be rendered by_ OR, _or by_ AND.

Having thus given the meanings, or rather the applications, which the words _vel per legem terrae_ will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word _vel_, instead of being rendered by _or_, as it usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is often used for _et_, and the whole phrase _nisi per judicium parium suorum, vel per legem terrae_, (which would then read, unless by the sentence of his peers, _and_ the 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, _vel_ per legem terrae.

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, _et_ per legem terrae, occurs. _Blackstone's Charters_, p. 42 (41.) And the word _vel_ is so frequently used for _et_, that I am not wholly free from a suspicion that it was 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."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449, _note_.[32]

The idea that the word _vel_ should be rendered by _and_, is corroborated, if not absolutely confirmed, by the following pa.s.sage 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, _et_ judicium 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 word _vel_ be rendered by _and_, (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, _and_ the law of the land."