ly that nothing was left to be fixed by "_legem
terrae_."

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 it is material for us to 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 punishments 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, it
is probably wholly impossible, at this day, to state, _with any
certainty or precision_, anything whatever that the _legem terrae_ of
Magna Carta did authorize the king, (that is, the government,) to do,
(if, indeed, it authorized him to do anything,) in the case of
criminals, _other than to have them tried and sentenced by their peers,
for common law crimes_; and to carry that sentence into execution.

The trial by jury was a part of _legem terrae_, and we have the means of
knowing what the trial by jury was. The fact that the jury were to fix
the sentence, implies that they were to _try_ the accused; otherwise
they could not know what sentence, or whether any sentence, ought to be
inflicted upon him. Hence