- The original manuscripts are written continuously without section breaks; here the generally accepted numbering of the clauses has been followed. There was no title or headline.
- This article is result of a changing preference in trial methods, a change heavily influenced by pope Innocent III’s edict at the fourth Lateran Council in 1215 that forbad trial by ordeal, a previously usual trial method.
The Saxon invaders had brought to Britain the crude method of determining guilt, for crimes such murder, theft, robbery, harbouring, forgery, arson, through trial by ordeal. The ordeal would be by fire or by water, the belief being God would miraculously intervene to protect the innocent. If found guilty, the accused lost a hand and a foot, and was also banished.
Later, the Normans introduced trial by battle and trial by inquisition. The latter was trial by the country (represented by a jury, usually of twelve knights or freemen). Trial by inquisition was used when trial by battle was inappropriate—the accused was a woman or an old man—or if the accused had appealed, the appeal eventually reaching the county court. A writ awarding a trial by inquisition could also be bought from the king.
Thus, this article entitles any person to a writ of inquisition without payment, rather than submitting to trial by battle or by ordeal—“life or limb”.
- The Magna Carta was a first attempt at separating the powers of the legislature (who make the laws), the judiciary (who pass judgement on the laws) and the executive (who carry out the judgements). Translations widely available today take no account of the intention to curb the authoritarian and arbitary actions of King John by a separation of these powers.
The original Latin phrase vel per legem terre in Magna Carta has frequently been translated as “or by the law of the land”. This current translation differs from that literal interpretation because
- the phrase “Common Law” more clearly distinguishes between laws made by the sovereign, potentially and often for his benefit, and the common law developed over hundreds of years to protect all members of society and which, from 1346, the king was sworn to maintain;
- the Latin word vel may be translated as “and” or, commonly, as “or”. If the latter translation (“or”) is used, there is a potential implication in Article 39 that there would be occasions when the accused person was to be judged by his peers, but using the king’s arbitary self-serving law, rather than the established Common Law. In such a case, there would be a contradiction to the intentions of the Magna Carta—to curb the power and scope of the king.
In light of the above, the common translation of per as “by” does not show sufficiently clearly that the king was being permitted merely to act in an executive fashion against his subjects, only under orders from the judiciary, who had made their order according to established law. Thus, the alternative translation of “according to” is more appropriate.
- This was at the foot of the Manuscripts Ci and Cii, both held in the British Library.
(There are four original manuscripts of the Magna Carta still surviving. The two held in the British Museum are designated Ci and Cii. The other two copies are at Lincoln Cathedral, designated L, and at Salisbury Cathedral, designated S.)
- This was at the foot of Manuscript Ci, which is one of the two manuscripts held in the British Library, and sometimes considered to be the oldest copy.
- Source: An Essay on the Trial by Jury, Lysander Spooner, 1852, Chapter II