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 in 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 "earls 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 trial, 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
should not be amerced but by their peers, and according to the quality
of the offen