492
THE GREEN BAG
Glanvill, held that the will of the prince was the law of the land. The reckless attempts made by John to enforce that theory finally brought about the armed conflict between the nation and the king. Upon the part of the nation it was claimed that the law of the land was not the will of the prince, but the immemorial laws of the English Kingdom, with such modifications and amendments as those laws had suffered in the process of Norman centralization. After the coming of the Conqueror, the Old-English system of customary law was generally appealed to as "the laws of good King Edward," while the changes which it suffered through the result of the Conquest were generally de scribed as the amendments made by King William. There is no attempt in the Charter to wipe out the irrevocable effects of the Conquest; the new system of central administration and the system of feudal tenures are both recognized as abiding ele ments in the constitution. The effort is to fix the limits of innovation, to define the extent to which the centralizing and feudal izing process to which the Conquest gave birth shall be permitted to abridge the im memorial freedom in the time to come. Only in the light of such an historical pref ace is it possible to expound the judicial clauses of the Great Charter in which its framers, after making provisions touching the character and appointment of judicial officers, announced a series of practical rules, both general and special, for the govern ment of all courts in the administration of justice. First among those general rules stands the famous declaration that "no free man shall be arrested or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land." The technical student of English law ex pounds the phrase per judicium parium, in the light of recent research, does not find in it a guarantee of trial by jury, which had
not then come into existence. He finds that the phrase "the lawful judgment of his peers" was only intended to guarantee to the accused a trial by his "equals." That right was not originally a class privilege of the aristocracy but a right shared by all grades of freeholders; whatever their rank they could not be tried by their inferiors. In that respect English custom did not differ from the procedure prescribed by the feudal usage on the continent. In England the "peers" of a crown tenant were his fellow crown tenants, who would normally deliver judgment in the Curia Regis; while the "peers " of a tenant of a mesne lord were the other freeholding tenants assembled in the court baron of the manor. A further illus tration of the meanings conveyed by the word "peers" to a medieval mind together with the nature of judicium parium may be drawn from that provision in John's charter of April 10, 1 201, which provides that "if a Christian bring a complaint against a Jew, let it be adjudged by his peers of the Jews." When the twin phrase per legem terras is interpreted by like standards it appears that originally it "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."1 The words appear at least twice in Glanvill, each time apparently in the technical sense. And yet it is equally clear that this older and technical signification of the phrase, per legem terrcs, was gradually forgotten as the term "law of the land" ripened into the wider meaning expressed by it in the popu lar speech of to-day. The wider meaning clearly appears in the statutes reaffirming, expanding, or explaining the Great Charter. The important series of such statutes passed in the reigns of Edward III and Richard II illustrate how the per legem terra of 1215 was read in the fourteenth century as equivalent to the wider phrase "by due process of law." 1 Bigelow, " History of Procedure,"
