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§ 342. “By Jury.”

This provision guarantees not merely the form of trial by jury, but all the substantial elements of trial by jury, as they exist at common law. (Walker v. New Mexico and S.P. Railroad, 165 U.S. 593.) “Unanimity was one of the peculiar and essential conditions of trial by jury at the common law. No authorities are needed to sustain this proposition. Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right.” (American Publishing Co. v. Fisher, 166 U.S. at p. 467; Springville v. Thomas, 166 U.S. 707.) “Trial by jury, in the primary and usual sense of the term at common law and the American Constitution, is a trial by a jury of 12 men, in the presence and under the superintendence of a judge empowered to instruct them upon the law and to advise them upon the facts, and (except upon acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the evidence.” (Capital Traction Co. v. Hof, 174 U.S. 1.) In the last-mentioned case it was also decided that the provisions of the Constitution as to trial by jury extend to the federal district of Columbia.

A jury means a jury composed, as at common law, of twelve men. (Thompson v. Utah, 170 U.S. 343; Maxwell v. Dow, 176 U.S. at p. 586.)

“The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbours, fellows, associates, persons having the same legal status in society, as that which he holds. Blackstone, in his Commentaries, says:—‘The right of trial by the jury, or the country, is a trial by the peers of every Englishmen, and is the grand bulwark of his liberties, and is secured to him by the Great Charter.’ ” (Strauder v. West Virginia, 100 U.S. 303.)

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