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Anyhow, their death was necessary, and necessitas non habet legem; that settles it: Herod must not be blamed, on that principle. It is not even certain that, cruel as he was, he would have confessed, with the modern obstetrician, "I would as lief, if it were necessary, kill an unborn child as a rat."
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.
"Ecclesiæ et cleri Anglicani," so it ran, "singularem protectorem, et unicum et supremum Dominum, et quantum per legem Christi licet, etiam supremum caput ipsius Majestatem agnoscimus We recognise the King's Majesty to be our only sovereign lord, the singular protector of the church and clergy of England, and as far as is allowed by the law of Christ, also as our Supreme Head."
IV. I. War against Aristonicus IV. II. Ideas of Reform III. VI. The African Expedition of Scipio To this occasion belongs his oration -contra legem iudiciariam- Ti. IV. II. Vote by Ballot
Isti tamen quod in aliquibus appropinquant verae fidei, multi quandoque eorum inuenti sunt conuersi, et plures adhuc de facili conuerterentur, si haberunt praedicatores, sincere eis verbum tractantes, quippe cum iam fateantur legum Mahometi quandoque defecturam, sicut nunc perijt lex Iudaeorum, et legem Christianorum vsque in finem seculi permansuram. De vita, et nomine Mahometi.
IV. I. War against Aristonicus IV. II. Ideas of Reform III. VI. The African Expedition of Scipio To this occasion belongs his oration -contra legem iudiciariam- Ti. IV. II. Vote by Ballot
He concluded with saying, "We know at present on what ground we stand; by the statute of Edward III. we know what treason is; by the two statutes of Edward VI. and the late act, we know what is proof; by the Magna Charta we know we are to be tried per legem terræ el per judicium parium, by the law of the land and the judgment of our peers; but if bills of attainder come into fashion, we shall neither know what is treason, what is evidence, nor how nor where we are to be tried."
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.
We shall discover if there be prudence in his exercises, if there be sincerity and justice in his deportment, if there be grace and judgment in his speaking; if there be constancy in his sickness; if there be modesty in his mirth, temperance in his pleasures, order in his domestic economy, indifference in palate, whether what he eats or drinks be flesh or fish, wine or water: "Qui disciplinam suam non ostentationem scientiae, sed legem vitae putet: quique obtemperet ipse sibi, et decretis pareat."
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 disseisiemus nec super eos per vim vel per arma ibimus nisi per legem regni nostri vel per judicium parium suorum in curia nostra donec consideratio facta fuerit," &c;., &c;.
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