We also know, generally, that, at the time of Magna Carta, all acts
intrinsically criminal, all trespasses against persons and property,
were crimes, according to lex terra, or the common law.
Beyond the points now given, we hardly know anything, probably
nothing with certainty, as to what the "legem terran" of Magna
Carta did authorize, in regard to crimes. There is hardly anything
extant that can give us any real light on the subject.
It would seem, however, that there were, even at that day, some
common law principles governing arrests; and some common law
forms and rules as to holding a man for trial, (by bail or
imprisonment;) putting him on trial, such as by indictment or
complaint; summoning and empanelling jurors, &c;., &c;.
Whatever these common law principles were, Magna Carta
requires them to be observed; for Magna Carta provides for the
whole proceedings, commencing with the arrest, ("no freeman
shall be arrested," &c;.,) and ending with the execution of the
sentence. And it provides that nothing shall be done, by the
government, from beginning to end, unless according to the
sentence of the peers, or "legem terrae," the common law. The trial
by peers was a part of legem terrae, and we have seen that the
peers must necessarily have governed the whole proceedings at the
tria1. But all the proceedings for arresting the man, and bringing
him to trial, must have been had before the case could come under
the cognizance of the peers, and they must, therefore, have been
governed by other rules than the discretion of the peers. We may
conjecture, although we cannot perhaps know with much certainty,
that the lex terrae, or common law, governing these other
proceedings, was somewhat similar to the common law principle,
on the same points, at the present day. Such seem to be the
opinions of Coke, who says that the phrase nisi per legem terrae