(3): Per legem terrae.

No freeman could be punished except “in accordance with the law of the land.” The precise meaning of these often–quoted words ought, perhaps, still to be regarded as an open question. Two meanings are possible: one, narrow and technical; the other, of a loose and popular bearing. The more technical has already been explained. Thus interpreted, the words of John’s Charter promised a threefold security to all the freemen of England. Their persons and property were protected from the King’s arbitrary will by the rule that execution should be preceded by a judgment—by a judgment of peers—by a judgment according to the appropriate time–honoured “test,” battle, compurgation, or ordeal.

Much weight, however, must be allowed to the arguments of those who contend for interpreting “lex terrae” more in accordance with the vague and somewhat meaningless “law of the land” of popular speech at the present day. The phrase, they argue, was not confined to methods of procedure, but referred to the entire tone and substance of the law. Advocates of both theories can point to other parts of Magna Carta where “lex” is used in the sense they claim for it in the present passage; for its purport was, in 1215, ambiguous. In chapters 18, 36, and 38, it refers primarily to procedure, whereas chapters 9, 45, 52, 56, and 59 suggest a broader interpretation.

Magna Carta is undoubtedly a loosely drawn document, and it is always possible that both meanings were in the minds of the framers. If so, the older, more technical signification was gradually forgotten, and “the law of the land” became the vague and somewhat meaningless phrase of the popular speech of to–day. It was only natural that this change of emphasis should be reflected in subsequent statutes reaffirming, expanding, or explaining Magna Carta. An important series of these, passed in the reigns of Edward III. and Richard II., shows how the per legem terrae of 1215 was read in the fourteenth century as equivalent to “by due process of law,” and how the Great Charter was interpreted as prohibiting the trial of men for their lives and limbs before the King’s Council on mere informal and irresponsible suggestions, sometimes made loosely or from malicious and interested motives.

The Act of 1352, for example, after reciting this provision of Magna Carta, insisted on the “indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done.” Coke, founding apparently on these fourteenth–century statutes, makes “per legem terrae” equivalent to “by due process of law” and that again to “by indictment or presentment of good and lawful men,” thus finding the grand jury enshrined in Magna Carta. The framers of the Petition of Right read the same words as a prohibition, not only of imprisonment “without any cause showed” but also of proceedings under martial law, thus interpreting the aims of King John’s opponents in the light of the misdeeds of King Charles.

Anachronisms such as these must be avoided. Whatever may have been the exact grievances that bulked most largely in the barons’ minds in 1215, their main contention was obvious. John was no longer to take the law into his own hands: the deliberate judgment of a competent court of law must precede any punitive measures to be taken by the King against freemen of his realm.