The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) that _legem terræ_ authorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been known in England, in criminal cases, for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in "_legem terræ_" as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to.[27] For all practical purposes of the present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury. _Whether Magna Carta allowed sentence to be fixed otherwise than by the jury._ Still another question arises on the words _legem terræ_, viz., whether, in cases where the question of guilt was determined by the jury, the amount of _punishment_ may not have been fixed by _legem terræ_, the Common Law, instead of its being fixed by the jury. I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time, _lex terræ_, the common law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any other case. 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 terræ_, which the king was sworn to maintain, required any one specific punishment, or any precise amount of punishment, for any one specific offence. If such a thing be claimed, it must be shown, for it cannot be presumed. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be inflicted in any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral constitutions of the offenders, and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and villeins, "shall not be amerced for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it;" and that "none of the aforesaid amercements shall be imposed (or assessed) but by the oaths of honest men of the neighborhood;" and that "earls and barons shall not be amerced but by their peers, and according to the quality of the offence."