Whether Magna Carta allowed sentence to be fixed otherwise than by the jury.
Still another question arises on the words legem terrae, viz., whether, in cases where the question of guilt was determined by the jury, the amount of punishment may not have been fixed by legem terrae, the Common Law, instead of its being fixed by the jury.
I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time, lex terrae, the common law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any other case. Doubtless certain punishments were common and usual for certain offences; but I do not think it can be shown that the common law, the lex terrae, which the king was sworn to maintain, required any one specific punishment, or any precise amount of punishment, for any one specific offence. If such a thing be claimed, it must be shown, for it cannot be presumed. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be inflicted on any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral constitutions of the offenders, and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and villeins, "shall not be amerced for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it," and that "none of the aforesaid amercements shall be imposed (or assessed) but by the oaths of honest men of the neighborhood;" and that "earl and barons shall not be amerced but by their peers, and according to the quality of the offence."
All this implies that the moral quality of the offence was to be judged of at the rial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be.
I think, therefore, it must be conceded that, in all cases, tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons.
1. It is uncertain whether the common law fixed the punishment of any offence whatever.
2. The words "per judicium parium suorum," according to the sentence of his peers, imply that the jury fixed the sentence in some cases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown.
3. The express provisions of Magna Carta, before adverted to, that no amercements, or fines, should be imposed upon. freemen, merchants, or villeins, "but by the oath of honest men of the neighborhood," and "according to the degree of the crime," and that "earls and barons shout not be amerced but by their peers, and according to the quality of the offence," proves that, at least, there was no common law fixing the amount of fines, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount of fines, or if it was to be no longer in force, it is reasonable to infer, (in the absence of all evidence to the contrary,) either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose. [25]
Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all offences. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king even was punishable by fine. When a criminal was unable to pay his One, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, (or,in the case of murder, the kindred of the deceased,)were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offences. [26]
And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all, prescribed that the offender should "be grievously amerced," or "pay a great fine to the king," or a "grievous ransom," with the alternative in some cases (perhaps understood in all) of imprisonment, banishment, or outlawry, in case of non-payment. [27]