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Updated: June 5, 2025
And just as these men, the most unmediæval of mankind, could yet boast about some mediæval liberties, Magna Carta, the Parliament and the Jury, so they could appeal to a true mediæval legend in the matter of a war with France. A typical eighteenth-century oligarch like Horace Walpole could complain that the cicerone in an old church troubled him with traces of an irrelevant person named St.
The first invasion which I find made, by the English statutes, upon this common law principle, was made in I285, seventy years after Magna Carta. It was then enacted as follows: "Nor shall, any be put in assizes or juries, though they ought to be taken in their own shire, that hold a tenement of less than the value of twenty shillings yearly.
It was simply, that they would neither convict the innocent, nor acquit the guilty. This was the oath in the Saxon times, and probably continued to be until Magna Carta.
So many of the great nobles had been killed in the Wars of the Roses, that the barons had lost all that great strength and power they had gained when they made King John sign Magna Carta. The kings got the power instead; and all through the reigns of the five Tudors, the sovereign had very little to hinder him from doing exactly as he pleased.
Coke's interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words "nec super eum ibimus, nec super eum mittemus," which was pointed out in a former article, and by which he attempted to give a judicial power to the king and his judges, where Magna Carta had given it only to a jury.
In the thirteenth century, when the King displeased the men of the nation, they demanded the privileges of Magna Carta, and when King and lords ruled inefficiently, the common people found a way to enlarge their own powers. Representatives of the townsmen and the country shires took their places in Parliament, and gradually, with growing wisdom and courage, assumed more and more prerogatives.
That such was the nature of judicial proceedings, and of the power of juries, up to the time of Magna Carta, is further shown by the following authorities.
But whatever buildings, old or new, stood on this spot at the time of the completion of the Porta della Carta were destroyed by another great fire in 1479, together with so much of the palace on the Rio that, tho the saloon of Gradenigo, then known as the Sala de Pregadi, was not destroyed, it became necessary to reconstruct the entire façades of the portion of the palace behind the Bridge of Sighs, both toward the court and canal.
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.
But the authority of Magna Carta does not rest, either wholly or mainly, upon its character as a compact. For centuries before the charter was granted, its main principles constituted "the Law of the Land," the fundamental and constitutional law of the realm, which the kings were sworn to maintain.
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