Doubtless certain punishments were common and usual for certain offences; but I do not think it can be shown that the common law, the lex terrae, which the king was sworn to maintain, required any one specific punishment, or any precise…
Lysander Spooner
The Public Record
Lysander Spooner was an American abolitionist, entrepreneur, lawyer, essayist, natural rights legal theorist, pamphleteer, political philosopher, and writer often associated with the Boston anarchist tradition.
gutenberg.org
All this implies that the moral quality of the offence was to be judged of at the rial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be.
I think, therefore, it must be conceded that, in all cases, tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons.
Even murder was punishable by a fine payable to the relatives of the deceased.
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 it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the…
If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence.
We also know that, in case of conviction, the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or…
We also know, generally, that, at the time of Magna Carta, all acts intrinsically criminal, all trespasses against persons and property, were crimes, according to lex terra, or the common law.
Such seem to be the opinions of Coke, who says that the phrase nisi per legem terrae means unless by due process of law.
The meaning will be, that no person shall be disseized, &c;., except upon a lawful cause of action, found by the verdict of a jury.
If the authority be vested in the government, the governmnt is absolute, and the people have no liberties except such as the government sees fit to indulge them with.