" Lord Somers' Essay on Grand
Juries, p. 88.
What is here said so plainly and forcibly of the oath and obligations of
grand juries, is equally applicable to the oath and obligations of
petit juries. In both cases the simple oaths of the jurors, and not the
instructions of the judges, nor the statutes of kings nor legislatures,
are their legal guides to their duties. [26]
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.
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