Note 812 — MAGNA CARTA. (continued 4)

See Thayer, Evidence, 200–1, for a discussion of the phrase “lex terrae.” See also Bigelow, History of Procedure, 155, n.: “The expression ‘per legem terrae’ simply required judicial proceedings, according to the nature of the case; the duel, ordeal, or compurgation, in criminal cases, the duel, witnesses, charters, or recognition in property cases.” The words occur at least twice in Glanvill, each time apparently with the technical meaning. In II. c. 19, the penalty for a false verdict includes forfeiture by jurors of their law (“legem terrae amittentes”); while in V. c. 5, a man born a villein, though freed by his lord, cannot, to the prejudice of any stranger, wage his law (“ad aliquam legem terrae faciendam”). The stress placed on the accused’s right to the time-honoured forms of lex is well illustrated by the difficulty of substituting jury trial for ordeal. It has already been shown that the right of “standing mute,” that is, virtually, of demanding ordeal, was only abolished in 1772. See supra, p. 400. Five and a half centuries were thus allowed to pass before the criminal law was bold enough, in defiance of a fundamental principle of Magna Carta, to deprive accused men of their “law.”