Opinion of the Justices

OPINION OF THE JUSTICES OF THE SUPREME JUDICIAL COURT. The legislature have no power so to change the law in relation to juries as to provide that petit juries may be composed of a less number than twelve, nor to provide that a number of the petit jury less than the whole number may render a verdict, in any case where the constitution gives to the party a right to a trial by jury. The undersigned, Justices of the Supreme Judicial Court, in discharge of the duty imposed on us by the Constitution, respectfully present our Opinion, in answer to the questions proposed to us by a resolution of the House of Representatives, passed June 16, 1859, as follows: 1. Has the legislature power so to change the law in relation to juries, as to provide that petit juries may be composed of a less number than twelve? 2. Has the legislature power to provide that a number of the petit jury, less than the whole number, may render a verdict? We have considered these questions as of great importance and interest, since the trial by jury has been steadily regarded, from the earliest judicial history in England, as the great safeguard of the lives, liberty, and property of the subject against the abuses of arbitrary power, as well as against undue excitements of popular feeling. In our own country, almost from its earliest settlement, the trial by jury was claimed by the people as the birthright of Englishmen, and as the most valuable of the rights of freemen; and in the great struggle which secured our national independence, no right of the colonists was more urgently and strenuously insisted upon. We have, therefore, examined these questions with anxious care, and we are without any disagreement among ourselves as to the conclusions we have formed, and which we now proceed to state in answer to those inquiries. We regard it as a well settled and unquestioned rule of construction that the language used by the legislature, in the statutes enacted by them, and that used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the constitution and the laws were adopted. The terms "jury," and "trial by jury," are, and for ages have been well known in the language of the law. They were used at the adoption of the constitution, and always, it is believed, before that time, and almost always since, in a single sense. A jury for the trial of a cause was a body of twelve men, described as upright, well qualified and lawful men, disinterested and impartial, not of kin, nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all bias in favor or against either party, duly impaneled under the direction of a competent court, sworn to render a true verdict according to the law and the evidence given them; who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them. All the books of the law describe a trial jury substantially as we have stated it. And a "trial by jury" is a trial by such a body, so constituted and conducted. So far as our knowledge extends, these expressions were used at the adoption of the constitution and always before, in these senses alone by all classes of writers and speakers. At that date, as we believe, no such thing as a jury of less than twelve men, or a jury deciding by less than twelve voices, had ever been known, or ever been the subject of discussion in any country of the common law. Upon these views we are of opinion that no body of less than twelve men, though they should be by law denominated a jury, would be a jury within the meaning of the constitution; nor would a trial by such a body, though called a trial by jury, be such, within the meaning of that instrument. We think, therefore, that the legislature have no power so to change the law in relation to juries, as to provide that petit juries may be composed of a less number than twelve, nor to provide that a number of the petit jury, less than the whole number, can render a verdict in any case where the constitution gives to the party a right to a trial by jury. The legislature have the general power to constitute new tribunals, and to provide new modes of trial for future cases, provided the right to a trial by jury, such as the constitution intends, is secured to every one in the last resort, in every case where it is guaranteed by the constitution, and has not been waived by the party himself. We have always to regret that when called upon by the legislature for our opinions upon questions of law, we have not the usual aid from the investigations of interested parties and their learned counsel. We may, however, properly remark, that in four of the States the same questions have arisen, and have been decided by their highest courts in conformity to the views we have expressed. Samuel D. Bell, Asa Fowler, J. E. Sargent, Henry A. Bellows, Charles Doe, George W. Nesmith. June 15, 1860.