_"

The word "_legale_," in the phrase "_per legale judicium parium
suorum_," doubtless means two things. 1. That the sentence must be given
in a legal manner; that is, by the legal number of jurors, legally
empanelled and sworn to try the cause; and that they give their judgment
or sentence after a legal trial, both in form and substance, has been
had. 2. That the sentence shall be for a legal cause or offence. If,
therefore, a jury should convict and sentence a man, either without
giving him a legal trial, or for an act that was not really and legally
criminal, the sentence itself would not be legal; and consequently this
clause forbids the king to carry such a sentence into execution; for the
clause guarantees that he will execute no judgment or sentence, except
it be _legale judicium_, a legal sentence. Whether a sentence be a legal
one, would have to be ascertained by the king or his judges, on appeal,
or might be judged of informally by the king himself.

The word "_legale_" clearly did not mean that the _judicium parium
suorum_ (judgment of his peers) should be a sentence which any law (of
the king) should _require_ the peers to pronounce; for in that case the
sentence would not be the sentence of the peers, but only the sentence
of the law, (that is, of the king); and the peers would be only a
mouthpiece of the law, (that is, of the king,) in uttering it.

"_Per legem terrae._"

One other phrase remains to be explained, viz., "_per legem terrae_,"
"_by the law of the land_."

All writers agree that this means the _common law_. Thus, Sir Matthew
Hale says:

"The common law is sometimes called, by way of eminence, _lex terrae_,
as in the statute of _Magna Carta_, chap. 29, where certainly the
common law is principally intended by those words, _aut per legem
terrae_; as appears by the exposition thereof in several subsequent
statutes; and particularly in the statute of 28 Edward III., chap. 3,
which is but an exposition and explanation of that statute. Sometimes
it is called _lex Angliae_, as in the statute of Merton, cap. 9,
"_Nolumus leges Angliae mutari_," &c., (We will that the laws of
England be not changed). Sometimes it is called _lex et consuetudo
regni_ (the law and custom of the kingdom); as in all commissions of
oyer and terminer; and in the statutes of 18 Edward I., cap.--, and
_de quo warranto_, and divers others. But most commonly it is called
the Commo