
    John W. Work v. The State of Ohio.
    The essential and distinguishing features of the trial by jury, as known at the common law, and generally, if not universally, adopted in this country, were intended to be preserved, and all its benefits secured to the accused, in all criminal cases, by the constitution of Ohio.
    It is beyond the power of the general assembly to impair the right or materially change its character. The number of jurors can not be diminished, or a verdict authorized, short of a unanimous concurrence of all the jurors.
    It follows, that the act of March 14, 1853, defining the jurisdiction and regulating the practice of probate courts, in so far as it provides for a jury of six only, and authorizes a conviction upon their finding, is unconstitutional and void.
    From this decision, however, no doubt is to be implied of the constitutionality of the act allowing juries of six men in civil trials before justices of the peace. Wherever facts are to bo found in any proceeding in which a jury was not required by the common law, a jury of any number may be authorized within the discretion of the legislative body.
    Error to the probate court of Hocking county.
    The plaintiff in error was, at the August term, 1853, charged, by information, with assault and battery. Several matters of exception arise on the overruling of a motion made by the defendant to strike the information from the files, and a like motion to .quash; but the only questions examined by this court relate to the trial of the cause below. The plaintiff in error, on the overruling of the said motions, filed a written demand for a trial by jury. A jury of six *men being called (the same that was regularly •summoned for the term), the then defendant, “being called upon to state whether he had any objection to said jury, made objection that the same is not a legal constitutional jury, because not a jury •of twelve men, and therefore objected to the array of said jury.” 'This objection was overruled, and exception taken. A verdict and judgment against the defendant being entered, this writ is sued •out to reverse the judgment.
    
      H. 3. Hunter, for plaintiff in error,
    presented a written brief, from which the following is taken, being all that relates to the. «question decided by the court.
    The more important question arising for consideration in the case is, whether-a party, accused of a crime or offense, has the right, under the constitution of Ohio, to demand a trial by a jury of twelve men.
    As yet, no law has been enacted by the legislature, reducing the number of jurors, in the trial of crimes of the higher classes, below the number twelve. But it must be admitted that, if the legislature may provide for the trial of minor offenses by a jury of two men, or three, or six, they may also, for the same reason, provide that the higher crimes of murder, etc., maybe tried by a like jury. No distinction is made in the constitution between crimes and inferior offenses in this respect; but it provides for all alike. “ In any trial, in any court, the party accused shall be allowed to . . . have a speedy public tidal by an impartial jury of the county,” etc. Art. 1, sec. 10. Also : “ The right of trial by jury shall be inviolate.” Art. 1, see. 5.
    Whatever the right of trial by jury may consist in, in criminal cases, it is saved to “ the party accused,” in all cases alike, whether punishable capitally, by imprisonment in the penitentiary, by fine, or otherwise. Now, what is this right—in what does it consist? Is it an unmeaning, imaginary thing, possessing no definite, well-understood characteristics ? Or, is it the contrary ? What, according to the invariable usage in Ohio, prior to the adoption of our present constitution, *was understood by the terms “ trial by jury” in criminal cases ; and what has always been understood to be their meaning throughout the United States, and wherever else the common law of England has prevailed ? It is unnecessary to" answer these questions at large; but it is well known that, in Ohio, all trials by jury in criminal cases have been by a jury of twelve men. The people of Ohio have no practical notion of any other number of men to compose a jury, and none other could have entered into the minds of the constitutional convention, in securing to the citizens this sacred right of trial by jury. It can not, in my humble opinion, ever be said, truthfully, that the framers of the constitution intended to confer on the legislature the power to alter the number of men required by the uniform practice of the country, to constitute a jury, by fixing a less number than twelve. And if a law were enacted fixing the number of jurors to try capital cases at two, three, four, or six men, the whole community would denounce it as unwise and unconstitutional. But why. unconstitutional, when the constitution is silent as to the number of persons required to form a jury ? I answer, simply because the language used in the constitution, although not specific as to the number of jurors, can not, without violence to the universal understanding of the people, be so construed. The terms “ trial by jury,” in so far as regards the number of men required to compose' a jury, for the trial of issues of fact in courts of record, have by long use acquired a specific or technical meaning as well as a popular meaning—-and this technical and popular meaning are in exact conformity, the one with the other. All men of experience and observation know that this is so ; and it can not, consistently with candor, be denied by any intelligent person of mature years. The framers of the constitution had a right to suppose, and no-doubt did suppose, that they had done and said all that was necessary by the language used in the constitution to protect the citizens of the state against being tried for their lives or their liberty by any other than a jury of twelve men. And they did not intend to leave' this important question subject to be regulated or modified by legislative discretion or indiscretion. Nor did the constitutional convention, in providing for the security of this-right, think it wise or expedient to discriminate between crimes of different grades, as they did in regard to the form of the accusation. On the contrary, care seems to have been taken to prevent any misapprehension of what was intended in this regard, to wit, to secure to parties 11 accused” in all cases, regardless of the nature of the crime or offense, the right to a speedy jury trial.
    We are bound, therefore, to' conclude, that if it is competent for the-legislature to provide by law, that persons accused of the offense of assault and battery may be required to submit to trial by a jury of six men, the same thing may, for the same reason, be required of persons accused of murder or other crime. And a further consequence must also follow, to wit, that if the legislature have the power to reduce the number of the jury to six, they may for like reason reduce it to any less number.
    It is no answer to this, to say that there is no danger of this—■ that the legislature would not be guilty of so great an act of folly and injustice, etc. I ask, why not? If there is no advantage to the party accused, in having a jury of twelve men, it is surely great folly to burden the public with the expense of keeping so large a body of men in attendance -upon your courts. As a measure of economy, a jury of two good men would be preferred to six or 
      •twelve. But nobody would like to substitute a jury of two in place -of twelve. Why not? Simply because there is a less degree of safety to the party accused. Two may be corrupted much more readily than six, or six than twelve. There is safety, also, against the influence of prejudice and passion in a body of twelve men,. over six, or any smaller number. There is also a much greater •degree of certainty, that twelve independent minds, acting in con■cert in the investigation of a complicated state of facts, will, by ■one or another of them, seize upon all the material facts, than would a smaller number. *So also with regard to the boarings and different views of facts; and when they all come to act together as one mind, and unite in one opinion as the result of their deliberations, the number twelve is altogether more reliable than a smaller number, all other circumstances being equal. At the same time that a body of twelve.men is, for these reasons, as a jury to try the facts in cases of all descriptions as they arise, not too numerous a body, it possesses obvious advantages over a larger body in several respects. It is not too numerous to admit of their •agreeing upon a verdict, or to be onerously expensive for the purposes for which juries are called.
    It is true, no doubt, that very many cases arise to be tried by a jury,’in which one or two men would answer the purpose as well as twelve men. But such cases are distinguished by their peculiar circumstances more than by the particular offense. It is very easy to understand how questions of the gravest importance affecting the moral character and reputation for life, of an individual, may arise in cases in which the punishment is less than imprisonment in the penitentiary, and tire trial involves a most complicated .investigation of facts, and collaterally involving questions of most •vital importance, such as the character and credibility of witnesses and the like. A man may be charged with petit larceny, and his character and hopes in life, or those of a worthy family, be blasted ■forever by an unjust conviction. It is true this may happen by a jury of twelve men before an enlightened court; but the danger is increased a thousand-fold by a jury of six men and a court'composed of men of the grade of intelligence, such as in many counties in Ohio even now have the honor to fill the office of probate judge. And it is greatly to be feared that time, with the operation of inferior salaries, will speedily drive away all of those who now worthily All the place.
    
      The following authorities, referred to in a recently-published opinion by Judge Hurd of this state, will be found, I think, so fax' as authorities are entitled to consideration, as pertinent, if not decisive.
    *1 also beg leave to submit the published opinion of Judge Hurd. It will be found in a newspaper herewith filed.
    Den v. Baldwin, 2 Penn. 943; Mitten v. Smock, 2 Penn. 911; Dowling v. The State, 5 Howard (Miss.), 681, 5 Smedes & Marshall (Miss.), 664; Bud v. The State; 1 Howard (Miss.), 177; The State v. Con, 3 Eng. (Ark.) 436; Larillan v. Lane & Co., Ib. 372; 6 Law Rep., No. 1, p. 26, Vt. case; 6 Metcalf, 231 (arg.); Foot v. Lawrence, 1 Stew. 482; 2 Tomlin’s Law Dictionary, 307; 1 Bouvier’s Law Dic. 542; 3 Bouvier’s Institutes, 324, 327; 3 Bl. Com. 352, 380; 3 Bac. Abr. 728.
    
      George W. McCook, attorney-general, cited the following authorities in his mem. for argument:
    Hunt v. Mason, 5 Ohio, 134; 2 Wilson’s Law Lec. 300; Jac. Law Dict., tit. Jury; Wyland v. Hamilton, 7 Ohio (pt. 2), 110; 3 Bl. 352; Ib., ch. 23; Ib. 385; Edward I. v. Bishop of Winchester, 1 Rat., pt. 19; Forsyth’s Tidal by Jury, 147, 149, 207; Ib., chap, on “ Unanimity,” 4 Bl. Com. 352.
   Ranney, J.,

delivered the opinion of the court:

Wo shall notice but one of the errors assigned, as, in the opinion of the court, that is decisive of the case, and upon a ground that precludes the possibility of remanding it for another trial. The plaintiff in error was charged with the offense of assault and batteiy, tried by a jui-y of six men under the act of March 14, 1853, “defining the jurisdiction and l'egulating the practice of probate courts; ” found guilty, and sentenced to pay a fine of one hundi'ed dollars and costs. He objected to the proceeding in various ways during its progress; and now insists that the act under which it was had, in so far as it authorizes a conviction upon the finding of such .a jury, is unconstitutional and void.

Two sections of the fii’st article of the constitution are relied upon.

Section 5 provides: “ The right of trial by jui’y shall be inviolate.”

*In section 10, it is provided: “In any trial, in any court,' tbe party shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed; nor shall any person be compelled, in any criminal case, to be a witness against himself, or be twice put in jeopardy for the same offense.”

By the first of these sections, the right of jury trial is recognized to exist, and its continuance unimpeaehed is provided for. By the last this right is declared to belong to every person accused of any crime or offense, in any court of the state.

What, then, is this right ? It is nowhere defined or described in the constitution. It is spoken of as something already sufficiently understood, and referred to as a matter already familiar to the public mind. The same article furnishes other examples of the same generality of expression. By section 8: “ The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion, the public safety require it.” In what does the privilege of this great bulwark of personal libery consist? The constitution furnishes no answer, nor was it necessary that it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite as" any other in the whole range of legal learning.

Tbe institution of the jury referred to in our constitution, and its benefits secured to every person accused of crime, is precisely the same in every substantial respect as that recognized in the great charter and its benefits secured to the freemen of England, and again and again acknowledged in fundamental compacts as the great safeguard of life, liberty, and property; the same, brought to this continent *by our forefathers, and j>crseveringly claimed as their birthright, in every contest with arbitrary power, and finally, an invasion of its privileges prominently assigned as one of the causes which was to justify them, in the eyes of mankind, in waging the contest which resulted in independence. Nor did their affection for it then diminish or cool. They made it a corner-stone in erecting the state governments; and after the adoption of the federal constitution, without a provision securing it? they did not rest satisfied, until they had proposed and carried an amendment, giving to every person accused of crime in the courts of the Union, “ the right to a speedy and public trial, by an impartial jury of the-state and district wherein the crime shall have been committed.”

In the ordinance of July 13, 1787, which first extended civil government over the .territory northwest of the river Ohio, it was made an unaltei’able article of compact, that the inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus, and of the trial by jury.” Upon the organizaT tion of the state government in 1802, provisions, substantially the same as those in the present constitution, were inserted in the bill of rights. It thus appears that persons accused of crime have, for every moment of time since civil government existed within the territory of this state, by fundamental laws, been secured in the i'ight of trial by jury. An institution that has so long stood the trying tests of time and experience, that has so long been guarded with scrupulous care, and commanded the admiration'of so many of the wise and good, justly demands our jealous scrutiny when innovations are attempted to be made upon it.

It remains to consider what were the distinguishing features of this mode of trial as it existed at common law, and as it has always been known and used in this country. I do not propose to attempt to discover its origin, or to determine at what time, or by whom, it was first introduced into England. Able men, with all the information to bo had, have differed upon it. The distinguished commentator upon the laws of England informs us that traces of it are to be found *in the'laws of all those nations which adopted the feudal system, “ who had all of them a tribunal composed of twelve good men and true;” and that “the truth-seems to bo, that this tribunal was universally established among the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other.” After delineating with admirable clearness the means the law has provided to secure the independence, purity, and impartiality of the jury, and painting in glowing colors the many advantages of this mode of trial, this author proceeds to say : “Upon these accounts, the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how -much must that advantage be heightened when it is applied to •criminal cases. But this we must refer to the ensuing book of these commentaries; only observing, for the present, that it is the most transcendent privilege which any subject can enjoy, or wish for, that he can not be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals. A constitution that, I may venture to affirm, has, under Providence, secured the just liberties of this nation for a long succession of ages.”

Pursuing the same subject in the fourth book of his commentaries, in its application to criminal prosecutions, he characterizes it as the bulwark of the liberties of Englishmen; and affirms that the •truth of every accusation, whether preferred in the shape of indictment, information, or appeal, must be confirmed by the unanimous suffrage of twelve of his equals and neighbors, and superior to all suspicion,” before the accused can be subjected to any manner of punishment.

We have extracted somewhat at length from this eminent author, for the purpose of showing beyond controversy the number of the jury at common law, as well as the other essential elements •of its constitution and action. The number must'be twelve, they must be impartially selected, and must unanimously concur in the guilt of the accused before a conviction can be had.

*We might cite other writers to the same purpose, but it can not be necessary.

We are of opinion it was this very tribunal, thus constituted, that those who framed and adopted the constitution of this state intended to perpetuate and make the safeguard of innocence, by securing its benefits to every person accused of crime in any of its courts.

There is certainly nothing in our history which points to a different conclusion. For half a century before its adoption, similar provisions had been so considered and acted upon. Until the passage of this law, no person had ever been convicted of crime by less than the concurrent assent of twelve of his peers; and no law has ever attempted to authorize it to be done.

If- the power exists to diminish the number of the jury, it may be applied to all cases, and it may be reduced to two as well as to six. The same constitutional provision that secures the right in a charge involving the life of the. accused secures it also in every other criminal case. It is no answer to say that this would not-likely be done. If it had been deemed safe to leave it to the discretion of the general assembly, no constitutional provision was needed; but, whether needed or not, it has been ordained by a power which both the general assembly and this court are bound to obey.

A moment’s consideration will show that diminishing the number impairs the right, lessens the security of the accused, and increases the danger of conviction.

If corruption or prejudice are to be feared and avoided, they are-much more likely to influence the conduct of six men than of twelve; and if the jury are honest, impartial, and pure, it is a self-evident fact that the chances of a conviction upon conflicting evidence, by the unanimous approval of the larger number, is many times less than by the smaller. Nor is a conviction, even in cases to which this act extends, a matter to be lightly considered. The reputation and hopes of a man, and all those who stand connected with him, *may be as effectually blasted by an unjust verdict of guilty upon a charge of petit larceny as for many crimes of much higher grade.

But, without pursuing these considerations further, our ojúnionis that the essential and distinguishing features of the trial by jury, as known at common law, and generally, if not universally, adopted in this country, were intended to be preserved, and its-benefits secured to the accused in all criminal cases, by the constitutional provisions referred to; that it is beyond the power of the-general assembly to impair the right, or materially change its character ; that the number of jurors can not be diminished, or a verdict authorized short of a unanimous concurrence of all the jurors-It follows that the act under which this conviction was obtained, in so far as it provides for a jury of six only, and authorizes a conviction upon their finding, is unconstitutional and void.

In coming to this conclusion, we have not referred to the decisions in other states, because we were entirely willing to take the responsibility of considering the question upon principle alone. The question has seldom arisen, but whenever it has, the same result has followed, without a single dissenting opinion or dictum to the contrary, so far as we are advised.

We have deemed it our duty to meet and arrest, at the outset, what we can not but regard as an infringement of a great constitutional right—not in a very flagrant manner, but, nevertheless, opening the door to further encroachments. So far as the argument of convenience and expedition is concerned, we can not do-better than to reply, in the language of Justice Blackstone: “ However convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered that delays and little inconveniences in the forms-of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fraudulently opposite to the ^spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous-concern.”

It would not be appropriate, nor do we intend to extend this opinion to determine the application of the right of trial by jury in civil cases. It is, however, well known that it never extended to all courts having civil jurisdiction, nor to the trial of all disputed facts.

Section 5 of article 13 has sometimes been referred to as containing, by implication, a warrant for supposing it was intended to authorize a jury of less than twelve, by the section of the constitution which we have been considering. This section relates to the compensation required upon appropriating the right of way to the use of a corporation, authorized to construct a public improvement, and provides that such “compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be'prescribed by law.”

Why, it is asked, fix the number here, if the term “jury,” used in other sections, ex vi termini, implies that number? The reason is obvious, and the answer plain. It has been held in Willyard v. Hamilton, 7 Ohio, 115, pt. 2, that the value of property taken for public uses might rightfully be assessed by commissioners, it not being a case for trial by jury, secured by the constitution; and that the proceeding need not be had in a court of justice. And the reason why it was not secured by the constitution was, that it had never been so regarded in England or this country prior to the adoption of that instrument. This course of proceeding by commissioners, had been much complained of as unjust and oppressive to the owner of the property; and to make at once a proceeding within the protection of the constitution, and to be pursued in a. •court of justice with a common-law jury, this section 5 of article 13 was inserted when the constitution was revised.

It intended to afford the party the same protection as in other -cases of jury trial—no more and no less ; and if any inference is to be drawn from specifying the number of the *jury, it is very strong evidence of the sense of the convention, that that was what had already been secured by the other sections, to suitors in other •cases.

We do not intend to imply a doubt of the constitutionality of the .act allowing juries before justices of the peace, composed of six men. Wherever facts are to be found in any proceeding, in which a jury was not required by the common law, a jury of any number may be authorized, within the discretion of the legislative body. •Juries did not belong to these inferior courts at the common law, and so long as an appeal is provided for the common-law courts from their determinations, it is clear no constitutional objection •can arise, whether facts are found by the magistrate or by the aid of a jury of any number of men. These questions were long since settled in Emerick v. Harris, 1 Binn. 416, and other cases in Pennsylvania. The judgment must be reversed.

Bartlet, J., dissented.  