n
Blackstone, which has before been cited. Speaking of the trial by jury,
as established by Magna Carta, he calls it,

"A privilege which is couched in almost the same words with that of
the Emperor Conrad two hundred years before: 'nemo beneficium suum
perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_
judicium parium suorum.'" (No one shall lose his estate unless
according to the custom of our ancestors, and the judgment of his
peers.)--_3 Blackstone_, 350.

If the word _vel_ be rendered by _and_, (as I think it must be, at least
in some cases,) this chapter of Magna Carta will then read that no
freeman shall be arrested or punished, "unless according to the sentence
of his peers, _and_ the law of the land."

The difference between this reading and the other is important. In the
one case, there would be, at first view, some color of ground for saying
that a man might be punished in either of two ways, viz., according to
the sentence of his peers, _or_ according to the law of the land. In the
other case, it requires both the sentence of his peers _and_ the law of
the land (common law) to authorize his punishment.

If this latter reading be adopted, the provision would seem to exclude
all trials except trial by jury, and all causes of action except those
of the _common law_.

But I apprehend the word vel must be rendered both by _and_, and by
_or_; that in cases of a _judgment_, it should be rendered by _and_, so
as to require the concurrence both of "the judgment of the peers _and_
the law of the land," to authorize the king to make execution upon a
party's goods or person; but that in cases of arrest and imprisonment,
simply for the purpose of bringing a man to trial, _vel_ should be
rendered by or, because there can have been no judgment of a jury in
such a case, and "the law of the land" must therefore necessarily be the
only guide to, and restraint upon, the king. If this guide and restraint
were taken away, the king would be invested with an arbitrary and most
dangerous power in making arrests, and confining in prison, under
pretence of an intention to bring to trial.

Having thus examined the language of this chapter of Magna Carta, so far
as it relates to criminal cases, its legal import may be stated as
follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived of his
freehold, or his liberties, or free customs, or be outlawed, or exiled,
or in any manner d