Having thus given the meanings, or rather the applications, which the words vel per legem terrae will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word vel, instead of being rendered by or, as it usually is, ought to be rendered by and, inasmuch as the word vel is often used for et, and the whole phrase nisi per judicium parian suorun, vel per legem terrae, (which would then read, unless by the sentence of his peers, and the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does.
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.,
But I apprehend the word vel, must be rendered both by and,, and by or;, that in cases of a judgment,, it should be rendered by and,, so as to require the concurrence both of "the judgment of the peers and, the law of the land," to authorize the king to make execution upon a party's goods or person; but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, vel, should be rendered by or, , because there can have been no judgment of a jury in such a case, and "the law of the land" must therefore necessarily be the only guide to, and restraint upn, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in. making arrests, and confining in prison, under pretence of an intention to bring to trial.
Having thus examined the language of this chapter of Magna Cart, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:
No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed. against him, nor send any one against him, by force or arms, unless according to (that is, in execution. of) the sentence of his peers, and (or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)
[1] Hume, Appendix 2,