If any additional proof were wanted that juries were to fix the sentence, it would be found in the following provisions of Magna Carta, viz.:

"A freeman shall not be amerced for a small crime, (delicto,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him his contenement; [19] and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, aving to him his waynage, [20] if he fall under our mercy; and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but by the oath of honest men of the neighborhood. Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime." [21]

Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury. Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones. So, also, in regard to other punishments than fines. If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones. As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments. [22]

"Legale."

The word "legale," in the phrase "per legale judicium parium suorum,"doubtless means two things.1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had. 2. That the sentence shall be for a legal cause or offence. If, therefore, a jury should convict and sentence a man, either without giving him a legal trial, or for an act that was not really and legally criminal, the sentence itself would not be legal; and consequently this clause forbids the king to carry such a sentence into execution; for the clause guarantees that he will execute no judgment or sentence, except it be legale judicium,a legal sentence. Whether a sentence be a legal one, would have to be ascertained by the king or his judges, on appeal, or might be judged of informally by the king himself.

The word "legale"clearly did not mean that the judicium parium suorum (judgment of his peers) should be a sentence which any law (of the king) should require the peers to pronounce; for in that case the sentence would not be the sentence of the peers, but only the sentence of the law, (that is, of the king); and the peers would be only a mouthpiece of the law, (that is, of the king,) in uttering it.

"Per legem terrae."

One other phrase remains to be explained, viz., "per legem terrae," "by the law of the land."

All writers agree that this means the common law.Thus, Sir
Matthew Hale says:

"The common law is sometimes called, by way of eminence, lex terrae,as in the statute of Magna Carta,chap. 29, where certainly the common law is principally intended by those words, aut per legem terrae;as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III., chap. 3, which is but an exposition and explanation of that statute. Sometimes it is called lex Angliae,as in the statute of Merton, cap. 9, "olurnus leqes Angliae mutari,"&c;., (We will that the laws of England be not changed). Sometimes it is called lex et consuetudo regni(the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I., cap. , and de quo warranto,and divers others. But most commonly it is called the Common Law, or the Common Law of England; as in the statute Articuli super Chartas,cap. 15, in the statute 25 Edward III., cap. 5, (4,) and infinite more records and statutes." 1 Hale's History of the Common Law, 128.