[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives quite in detail the principles of the common law governing _arrests_; and takes it for granted that the words "_nisi per legem terræ_" are applicable to arrests, as well as to the indictment, &c.--2 _Inst._, 51,52.] [Footnote 32: 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 terræ_ authorized "judgments by default or demurrer," _without the intervention of a jury_. He seems to imagine that _lex terræ_, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, _at this day_, called by the name of _Common Law_; whereas much of what is _now_ called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, "Certainly there are many legal procedures, besides _trial_ by jury, through which a party's goods or person may be taken." Of course there are _now_ many such ways, in which a party's goods or person _are_ taken, besides by the judgment of a jury; but the question is, whether such takings are not in violation of Magna Carta. He seems to think that, in cases of "judgment by default or demurrer," there is no need of a jury, and thence to infer that _legem terræ_ may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested _facts_, and not for judging of the law. In case of default, the plaintiff must present a _prima facie_ case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this _prima facie_ case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be. As for a demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case.