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