Chapter X: Section IV: The Right of Juries to fix the Sentence

The nature of the common law courts existing prior to Magna Carta, such as the county courts, the hundred courts, the court-leet, and the court-baron, all prove, what has already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless it were the sheriff, bailiff, or steward; and no one will pretend that it was fixed by them. The juries unquestionably gave the "judgment" in both civil and criminal cases.

That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta.

A statute passed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, "_debeat_ amerciari vel subire judicium pillorae,"--that is, "_ought_ to be amerced, or suffer the sentence of the pillory." And that a brewer, for "selling ale, contrary to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51 Henry III._, st. 6. (1266.)

If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders _shall_ be amerced, and _shall_ suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they _ought_ to be punished in that manner.

The statute of Westminster, passed sixty years after Magna Carta, provides that,

"No city, borough, nor town, _nor any man_, be amerced, without
reasonable cause, and according to the quantity of the trespass; that
is to say, every freeman saving his freehold, a merchant saving his
merchandise, a villein his waynage, _and that by his or their
peers_."--_3 Edward I._, ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

"Forasmuch as the _common fine and amercement_ of the whole county in
Eyre of the justices for false judgments, or for other trespass, is
unjustly assessed by sheriffs and baretors in the shires, so that the
sum is many times increased, and the parcels otherwise assessed than
they ought to be, to the damage of the people, which be many times
paid to the sheriffs and baretors, which do not acquit the payers; it
is provided, and the king wills, that from henceforth such sums shall
be assessed before the justices in Eyre, afore their departure, _by
the oath of knights and other honest men_, upon all such as ought to
pay; and the justices shall cause the parcels to be put into their
estreats, which shall be delivered up unto the exchequer, and not the
whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58]

The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a recognition of the principle of Magna Carta, that the jury are to fix the sentence.

"Whereas before this time the peers of the land have been arrested
and imprisoned, and their temporalities, lands, and tenements, goods
and cattels, asseized in the king's hands, and some put to death
without judgment of their peers: It is accorded and assented, that no
peer of the land, officer, nor other, because of his office, nor of
things touching his office, nor by other cause, shall be brought in
judgment to lose his temporalities, lands, tenements, goods and
cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
forejudged, nor put to answer, nor be judged, but by _award_
(_sentence_) of the said peers in Parliament."--_15 Edward III._, st.
1, sec. 2.