Blackstone suggests that this may be the true reading. (Charters, p.
41.) Also Mr. 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. 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.
Blackstone's Charters, p. 42 (41.) And the word vel is so frequently
used for et, that I amnot wholly free from a suspicion that it was
so intended in this place. The meaning will be, that no person shall
be disseized, &c;., except upon a lawful cause of action, found by
the verdict of a jury. This really seems as good as any of the
disjunctive interpretatios; but I do not offer it with much
confidence." 2 Hallam's Middle Ages, Ch. 8, Part 2, p. 449,
note." [29]
The idea that the word vel, should be rendered by and, is
corroborated, if not absolutely confirmed, by the following passage
in Blackstone, which has before been cited. Speaking of the trial
by jury, as established by Magna Carta, he calls it, "A privilege
which is couched in almost the same words with that of the
Emperor Conrad two hundred years before: 'nemo beneficium
suum perdat, nisi secundum consuetudinem antecessorum
nostrorum, et, judicium parium suorum. ' (No one shall lose his
estate unless according to the custom of our ancestors, and, the
judgment of his peers.) 3 Blackstone, 350.,
If the word vel, be rendered by and,, (as I think it must be, at least
in some cases,) this chapter of Magna Carta will then read that no
freeman shall be arrested or punished, "unless according to the
sentence of his peers, and, the law of the land."
The difference between this reading and the other is important. In
the one case, there would be, at first view, some color of ground
for saying that a man might be punished in either of two ways, viz.,
according to the sentence of his peers, or according to the law of
the land. In the other case, it requires both the sentence of his peers
and, the law of the laud (common law) to authorize his
punishment.
If this latter reading be adopted, the provision would seem to
exclude all trials except trial by jury, and all causes of action
except those of the common law.,
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