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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. "Per legem terrae." One other phrase remains to be explained, viz., "per legem terrae," "by the law of the land."
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 theterm legem terrae.
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.
All writers agree that this means the common law.Thus, Sir Matthew Hale says: "The common law is sometimes called, by way of eminence, lex terrae,as in the statute of Magna Carta,chap. 29, where certainly the common law is principally intended by those words, aut per legem terrae;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.
The lovers of everything classic and pagan were pained and exasperated at the venerable simplicity, the lack of prosody, the vagueness and crudity of the wording of the liturgical hymns. In 1531, Wimpheling, a priest of the diocese of Spire, produced a work, Himni de tempore et de sanctis ... secundum legem carminis diligenter emendati.
Laws were also called leges saturae when they were of several heads and titles, like our tacked Bills of Parliament; and per saturam legem ferre in the Roman senate was to carry a law without telling the senators, or counting voices, when they were in haste. Sallust uses the word, per saturam sententias exquirere, when the majority was visibly on one side.
They comprehended, besides much in English and Scotch law, Burlamaqui's Principes de Droit Naturel, Montesquieu, de l'Esprit des Lois, the Institutes of Justinian, certain titles of the Pandects, and Puffendorf de Officio Hominis et Civis juxta Legem Naturalem. The lectures of Chancellor Wythe at William and Mary, like those of Mr.
Nothing must be left undone to achieve that object. Alas, what troubles, what unending anxiety a woman can cause a man! After getting over this difficulty, I swear I will not even converse with any one of them again. In the meantime I must invoke the aid of this wretched girl Elizabeth. Necessitas non habet legem. Elizabeth is that most irritating necessity.
Of this Blackstone says: "The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter; nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicial parium suorum, vel per legem terrae.
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.
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