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that it was to be no longer in force.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law fixing the amount of fines, or if it was to be no longer in force,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any other punishment, or that it was to be no longer in force for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