Part 3 (2/2)

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.”

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