All this implies that the moral quality of the offence was to be judged of at the trial, 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. 1. It is uncertain whether the _common law_ fixed the punishment of any offence whatever. 2. The words "_per judicium parium suorum_," _according to the sentence of his peers_, imply that the jury fixed the sentence in _some_ cases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown. 3. The express provisions of Magna Carta, before adverted to, that no amercements, or fines, should be imposed upon freemen, merchants, or villeins, "but by the oath of honest men of the neighborhood," and "according to the degree of the crime," and that "earls and barons should not be amerced but by their peers, and according to the quality of the offence," _proves_ that, at least, there was no common law fixing the amount of _fines_, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount of _fines_, or if it was to be no longer in force, it is reasonable to infer, (in the absence of all evidence to the contrary,) either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose.[28] Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all offences. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king even was punishable by fine. When a criminal was unable to pay his fine, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, (or, in the case of murder, the kindred of the deceased,) were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offences.[29] And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all, prescribed that the offender should "be grievously amerced," or "pay a great fine to the king," or a "grievous ransom,"--with the alternative in some cases (perhaps _understood_ in all) of imprisonment, banishment, or outlawry, in case of non-payment.[30]