[807]. See Carta Mercatoria, c. 8; 27 Edward III. stat. 2, c. 8; and 28 Edward III. c. 13; also Thayer, Evidence, p. 94.
[808]. See infra, cc. [56], [57], and [58]. Under c. [59] the barons of England were called peers of the King of Scots.
[809]. See Placitorum Abbreviatio[Abbreviatio], p. 201, cited Pollock and Maitland, I. 393 n.
[810]. See also a passage in the Scots Acts of Parliament (I. 318) attributed to David: “No man shall be judged by his inferior who is not his peer; the earl shall be judged by the earl, the baron by the baron, the vavassor by the vavassor, the burgess by the burgess; but an inferior may be judged by a superior.”
[811]. See supra, p. 103, and cc. 18, 36, and 38.
[812]. 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.”
[813]. It would seem, however, from the words of these statutes that for this purpose the provisions of chapters 36 and 38 were used to supplement those of the present chapter, if they were not confused with them. See 5 Edward III. c. 9; 25 Edward III. stat. 5, c. 4; 37 Edward III. c. 18; 38 Edward III. c. 3; 42 Edward III. c. 3; 17 Richard II. c. 6. See also Stubbs, Const. Hist., II. 637-9, for the series of petitions beginning with 1351.
[814]. Second Institute, p. 46.
[815]. 3 Charles I. c. 1.
[816]. Pollock and Maitland, I. 152, n., read the word as having both meanings in this passage. Cf. Gneist, Engl. Const., chapter xviii. Mr. Pike, House of Lords, 170, takes an opposite view: “King John bound himself in such a manner as to show that judgment of peers was one thing, the law of the land another. The judgment of peers was ... a very simple matter and well understood at the time. The law of the land included all legal proceedings, civil or criminal, other than the judgment of peers.” The present writer rejects this antithesis, because the two things may be, and indeed must be, combined. The “trial” by a law and the “judgment” by equals were complementary of each other. The peers appointed the test and decided whether it had been properly fulfilled.