ain, then a real
restriction was laid upon his power, and a real guaranty given to the
people for their liberties.

Such, then, being the meaning of _legem terrae_, the fact is established
that Magna Carta took an accused person entirely out of the hands of the
legislative power, that is, of the king; and placed him in the power and
under the protection of his peers, and the common law alone; that, in
short, Magna Carta suffered no man to be punished for violating any
enactment of the legislative power, unless the peers or equals of the
accused freely consented to it, or the common law authorized it; that
the legislative power, _of itself_, was wholly incompetent to _require_
the conviction or punishment of a man for any offence whatever.

_Whether Magna Carta allowed of any other trial than by jury._

The question here arises, whether "_legem terrae_" did not allow of some
other mode of trial than that by jury.

The answer is, that, at the time of Magna Carta, it is not probable,
(for the reasons given in the note,) that _legem terrae_ authorized, in
criminal cases, any other trial than the trial by jury; but, if it did,
it certainly authorized none but the trial by battle, the trial by
ordeal, and the trial by compurgators. These were the only modes of
trial, except by jury, that had been known in England, in criminal
cases, for some centuries previous to Magna Carta. All of them had
become nearly extinct at the time of Magna Carta, and it is not probable
that they were included in "_legem terrae_" as that term is used in that
instrument. But if they were included in it, they have now been long
obsolete, and were such as neither this nor any future age will ever
return to.[27] For all practical purposes of the present day,
therefore, it may be asserted that Magna Carta allows no trial whatever
but trial by jury.

_Whether Magna Carta allowed sentence to be fixed otherwise than by the
jury._

Still another question arises on the words _legem terrae_, viz., whether,
in cases where the question of guilt was determined by the jury, the
amount of _punishment_ may not have been fixed by _legem terrae_, the
Common Law, instead of its being fixed by the jury.

I think we have no evidence whatever that, at the time of Magna Carta,
or indeed at any other time, _lex terrae_, the common law, fixed the
punishment in cases where the question of guilt was tried by a jury; or,
indeed, that it did in any other case. Doubtless