But whether the common law fixed the punishment of any
offences, or not, is a matter of little or no practical importance at
this day; because we have no idea of going back to any common
law punishments of six hundred years ago, if, indeed, there were
any such at that time. It is enough for us to know and this is what
is material for us know that the jury fixed the punishments, in all
cases, unless they were fixed by the common law; that Magna
Carta allowed no punishments to be prescribed by statute that is,
by the legislative power nor in any other manner by the king, or
his judges, in any case whatever; and, consequently, that all
statutes prescribing particular punishmnts for particular offences,
or giving the king's judges any authority to fix punishments, were
void.

If the power to fix punishments had been left in the hands of the
king, it would have given him a power of oppression, which was
liable to be greatly abused; which there was no occasion to leave
with him; and which would have been incongruous with the whole
object of this chapter of Magna Carta; which object was to take all
discretionary or arbitrary power over individuals entirely out of the
hands of the king, and his laws, and entrust it only to the common
law, and the peers, or jury that is, the people. What lex terrae
did authorize.

But here the question arises, What then did legem terrae" authorize
the king, (that is, the government,) to do in the case of an accused
person, if it neither authorized any other trial than that by jury, nor
any other punishments than those fixed by juries?

The answer is, that, owing to the darkness of history on the point,