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 laud (common law) to authorize his
punishment.
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