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 pilloae,"

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 sheriff's 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.) [27]

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 teneiments, 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.