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Updated: June 5, 2025
Such of the barristers as have a patent of precedence, as king's counsel, sit within the Bar, with the serjeants; all others are called utter or outer barristers. Serjeants at law. Servientes ad legem, or serjeant-countors. The coif or covering to the head worn by this order has also given a denomination to them.
This mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it was included in "legem terrae," as that term is used in that instrument.
"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?
Locus quoque ibi ostenditur, in quo Deus tradidit ei decem mandata, siue legem proprio digito scriptam, et sub rupe cauerna in qua mansit ieiunus diebus 40. Ab hoc monte qui vocatur Mosi, restat via producta ad quartam Leucae, vsque in montem qui dicitur Sanctae Catherinae per vallem speciosam, ac multum frigidam. Circa eius medium habetur Ecclesia, nomine 40.
It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At any rate, it is not likely that it was included in the "legem terrae" of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful.
Harcourt said he knew of no trial for treason but what was confirmed by Magna Charta, by a jury, the birthright and darling privilege of an Englishman, or per legem terræ, which includes impeachments in parliament; that it was a strange trial where the person accused had a chance to be hanged, but none to be saved; that he never heard of a juryman who was not on his oath, nor of a judge who had not power to examine witnesses upon oath, and who was not empowered to save the innocent as well as to condemn the guilty.
Under the Stuarts, he placed a bowl of spurious money amongst the sham papers that lay upon his table. In the 'Serviens ad Legem, Mr.
Steering our course forwards the next day, we passed through Pettifogging, a country all blurred and blotted, so that I could hardly tell what to make on't. There we saw some pettifoggers and catchpoles, rogues that will hang their father for a groat. They neither invited us to eat or drink; but, with a multiplied train of scrapes and cringes, said they were all at our service for the Legem pone.
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."
But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta; and there is no probability that it was included in "legem terrae." Hallam says, "It appears as if the ordeal were permitted to persons already convicted by the verdict of a jury." 2 Middle Ages, 446, note.
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