Page:Harvard Law Review Volume 4.djvu/174

158 IfS HARVARD LAW REVIEW, possess a certain fief, in which she claims dower, it is to be settled per legem inquisitionis, and the like. And the methods (usus) are the ways in which such a lex is to be performed, namely, by twelve persons, under oath, worthy of credit, who have inspected the fief." Readers of Sir Henry Maine will recall the emphasis which he puts upon the prominence of procedure in early systems of law. The Salic law, he tells us, " deals with thefts and assaults, with cattle, with swine, and with bees, and, above all, with the solemn and intricate procedure which every man must follow who would punish a wrong or enforce a right." And again : ** So great is the ascendency of the Law of Actions in the infancy of courts of jus- tice, that substantive law has at first the look of being gradually secreted in the interstices of procedure ; and the early lawyer can only see the law through the envelope of its technical forms." ^ Our inherited law has kept in existence until a period within living memory a phrase which comes straight down from those early days. Until the year 1833^ certain cases in England could be tried per legem ; a man waged his law (vadiare legem), i.e. gave pledges for performing it; and afterwards performed his law (facere legem). In the system from which ours came, there were formerly many of these leges^ or means of trial. Trial by battle was the lex ultrata ; by the ordeal, the lex apparens, manifesta, or paribilis; by the single oath, the lex simplex; by the oath with compurgators, the lex probabilis, or the lex dis- raisinae; by record, the lex recordationis ; by inquest, or the assize, lex inquisitionis and recognitionis.^ Our phrase " law of the land " comes down out of the midst of all this ; in the Germanic law it was one of the ways of defending one's stX^^ per legem terrce ; popular law." This old use of the term " law," so different from ours, is to be explained by the considerations mentioned in the last ten pages of Sir Henry Maine's " Early Law," from which I have already quoted. All the primitive codes, he says, " seem to begin with judicature, and to distribute substantive law into * heads of dispute.' " " The authority of the Court of Justice overshadowed all other ideas and considerations in the minds of those early code- 1 Early Law and Custom, 168, 389. 2 stat. 3 and 4 Wm. IV § 42, s. 13. 8 On this subject, see Brunner, Schwur. pp. 168 et seq. Spelman, Gloss, sub voc. Lex ; Ducange, ib.
 * by lex terrce is meant," says Brunner,* " the procedure of the old
 * Schwur. 254.