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Updated: June 5, 2025
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 principle, on the same points, at the present day. Such seem to be the opinions of Coke, who says that the phrase nisi per legem terrae means unless by due process of law. Thus, he says: "Nisi per legem terrae.
I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the word vel by and; and not by any means for the purpose of indorsing the opinion he suggests, that legem terrae authorized "judgments by default or demurrer,* without the intervention of a jury.
The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, that legem terrae, 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.
What lex terrae did authorize. 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.
"Nay," said the archbishop, with a bland smile, that fretted Montagu to the quick, "surely even a baron, a knight, a franklin, a poor priest like myself, would rise against the man who dictated to his hospitality. Is a king less irritable than baron, knight, franklin, and priest, or rather, being, as it were, per legem, lord of all, hath he not irritability eno' for all four?
If the term legem terraehad 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.
Observandum est, say the divines of Magdeburg, apostolos et apostolicos viros, neque de paschate, neque de aliis quibuscunque, festivitatibus legem aliquam constituisse. Socrates reporteth, that men did celebrate the feast of Easter, and other festival days, sicuti voluerunt, ex consuetudine quadam.
Hallam, who says:"Nisi per legale judicium parium suorum, vel per legem terra;. 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.
To them may be added miscellaneous amercements, for trespasses of divers kinds." 1 Maddox' History of the Exchequer, 542. Coke, in his exposition of the words legem terrae, gives quite in detail the principles of the common law governing arrests, and takes it for granted that the words "nisi per legem terre" are applicable to arrests, as well as to the indictment, &c. 2 inst., 51, 52.
But the law of a prince cannot be a rule, except it be examined whether it be consonant to the word of God, index secundum legem, and his law is only such a rule as is ruled by a higher rule. In so far as it is ruled by the own rule of it, in as far it is a rule to us; and in so far as it is not ruled by the own rule of it, in as far it is not a rule to us.
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