Hallam solely for the sake of
his authority for rendering the word vel by and; and not by any
means for the purpose of indorsing the opinion he suggests, that
legem terrae authorized "judgments by default or demurrer,*'
without the intervention of a jury. He seems to imagine that lex
terrae, the common law, at the time of Magna Carta, included
everything, even to the practice of courts, that is, at this day, called
by the name of Common Law; whereas much of what is now
called Common Law has grown up, by usurpation, since the time
of Magna Carta, in palpable violation of the authority of that
charter. He says, "Certainly there are many legal procedures,
besides trial by jury, through which a party's goods or person may
be taken." Of course there are now many such ways, in which a
party's goods or person are taken, besides by the judgment of a
jury; but the question is, whether such takings are not in violation
of Magna Carta.
He seems to think that, in cases of "judgment by default or
demurrer," there is no need of a jury, and thence to infer that
legem terrae may not have required a jury in those cases.
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