[Footnote 21: This precedent from Germany is good authority, because the trial by jury was in use, in the northern nations of Europe generally, long before Magna Carta, and probably from time immemorial; and the Saxons and Normans were familiar with it before they settled in England.]
[Footnote 22: _Beneficium_ was the legal name of an estate held by a feudal tenure. See Spelman's Glossary.]
[Footnote 23: _Contenement_ of a freeman was the means of living in the condition of a freeman.]
[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]
[Footnote 25: Tomlin says, "The ancient practice was, when any such fine was imposed, to inquire by a jury _quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much is he able to give to the king per annum, saving his own maintenance, and that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine as might amount to imprisonment for life. And this is the reason why fines in the king's courts are frequently denominated ransoms, because the penalty must otherwise fall upon a man's person, unless it be redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word Fine._]
[Footnote 26: Because juries were to fix the sentence, it must not be supposed that the king was _obliged_ to carry the sentence into execution; _but only that he could not go beyond the sentence_. He might pardon, or he might acquit on grounds of law, notwithstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king _shall punish_ according to the sentence of the peers; but only that he shall not punish _"unless according to" that sentence_. He may acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.]
[Footnote 27: _The trial by battle_ was one in which the accused challenged his accuser to single combat, and staked the question of his guilt or innocence on the result of the duel. This trial was introduced into England by the Normans, within one hundred and fifty years before Magna Carta. It was not very often resorted to even by the Normans themselves; probably never by the Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II., by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At any rate, it is not likely that it was included in the "_legem terræ_" of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of _lex terræ_, unless it can be shown either to have been of Saxon origin, or to have been recognized by Magna Carta.