only carrying that sentence or
judgment into execution.

If these reasons could leave any doubt that the word _per_ is to be
translated _according to_, that doubt would be removed by the terms of
an antecedent guaranty for the trial by jury, granted by the Emperor
Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone
cites it as follows:--(_3 Blackstone_, 350.)

"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum
nostrorum, et judicium parium suorum." That is, No one shall lose his
estate,[22] unless _according to_ ("_secundum_") the custom (or law) of
our ancestors, and (_according to_) the sentence (or judgment) of his
peers.

The evidence is therefore conclusive that the phrase _per judicium
parium suorum_ means _according to the sentence of his peers_; thus
implying that the jury, and not the government, are to fix the sentence.

If any additional proof were wanted that juries were to fix the
sentence, it would be found in the following provisions of Magna Carta,
viz.:

"A freeman shall not be amerced for a small crime, (_delicto_,) but
according to the degree of the crime; and for a great crime in
proportion to the magnitude of it, saving to him his
_contenement_;[23] and after the same manner a merchant, saving to
him his merchandise. And a villein shall be amerced after the same
manner, saving to him his waynage,[24] if he fall under our mercy;
_and none of the aforesaid amercements shall be imposed, (or
assessed, ponatur,) but by the oath of honest men of the
neighborhood. Earls and Barons shall not be amerced but by their
peers_, and according to the degree of their crime."[25]

Pecuniary punishments were the most common punishments at that day, and
the foregoing provisions of Magna Carta show that the amount of those
punishments was to be fixed by the jury.

Fines went to the king, and were a source of revenue; and if the amounts
of the fines had been left to be fixed by the king, he would have had a
pecuniary temptation to impose unreasonable and oppressive ones. So,
also, in regard to other punishments than fines. If it were left to the
king to fix the punishment, he might often have motives to inflict cruel
and oppressive ones. As it was the object of the trial by jury to
protect the people against all possible oppression from the king, it was
necessary that the jury, and not the king, should fix the
punishments.[26]

"_Legale.