A waiver of a jury by the defendant in an action for a penalty in a revenue case does not invalidate the judgment; Schick v. U. S., 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585, where, however, the dissent ing opinion of Harlan, J., should be ex amined.
A jury trial is not guaranteed by a state constitution providing for "due process of law" ; Wynehamer v. People, 13 N. Y. 378 ; nor even by the provision for it in the four teenth amendment ; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678 ; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; nor does it abridge its privileges and immuni ties; id. "Due process of law"' simply re quires that there shall be a day in court, and the legislature may take away or change a remedy; People v. Boar i of Sup'rs, 70 N. Y. 228; but it has been hell in some cases that the expression does guarantee a jury trial; Inhabitants of Saco v. Wentworth, 37 Me. 165, 58 Am. Dec. 786 ; State v. Ray, 63 N. H. 406, 56 Am. Rep. 529 ; Jones v. Robbins, 8 Gray (Mass.) 329; Hurtado v. People, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232.
An act providing for the trial of a con tested election to a public office which de prives the party of a trial of disputed facts by jury is not unconstitutional ; Ewing v. Filley, 43 Pa. 384.
In the Delaware constitution of 1897, pro vision is made for the trial of criminal of fences against the election laws, by the court without a jury.
The number of jurors must be twelve ; and it is held that the term jury in a constitution imports, ea' vi termini, twelve men ; People v. Justices, 74 N. Y. 406; v. Com., 6 Mete. (Mass.) 231; Norval v. Rice, 2 Wis. 22; whose verdict is to be unanimous ; Crug er v. R. Co., 12 N. Y. 190. See State v. Mc Clear, 11 Nev. 39, supra.
Where a constitution preserves the right of trial by jury inviolate, the legislature cannot change the number of jurors in either civil or criminal cases; Thomp. & Merr. Juries 10 ; Henning v. R. Co., 35 Mo. 408 ; Allen v. State, 51 Ga. 264.
The question whether the common law re quirement of twelve jurors may be changed has in recent years received much attention' in the courts. There has been a growing ten dency, at least, towards the serious consid eration of changes in the jury system as ad ministered at common law and secured by the state and federal constitutions. See GRAND jIIRY. The decided weight of author ity is that, where the right to trial by jury is secured by the constitution, the legislature cannot authorize a verdict by a less number than twelve ; that the constitutional reserva tion implies a right to the concurrent judg ment of that number, and any statute limit ing it is unconstitutional and void ; Opinion of Justices, 41 N. II. 550 ; Jacksonville, T. &
K. W. R. Co. v. Adams, 33 Fla. 608, 15 South. 257, 24 L. R. A. 272 ; Bradford v. Territory, 1 Okl. 366, 34 Pac. 66 ; Bettge v. Territory, 17 Okl. 85, 87 Pac. 897 ; Cancemi v. People, 18 N. Y. 128 ; Harris v. State, 128 Ill. 585, 21 N. E. 563, 15 Am. St. Rep. 153 ; Carroll v. Byers, 4 Ariz. 158, 36 Pac. 499; and such, un der the sixth amendment, must be the num ber of jurors, neither more nor less than twelve, that being the rule at common law ; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061. Such is the meaning of "trial by jury" in the primary and usual sense of the term at common law in the American constitutions ; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873, where there is an extended historical discussion of the subject by Gray, J., and it was held further that by the seventh amend ment after trial by Ary, in either the federal or state, court, the facts tried and decided cannot be re-examined in any court of the United States except upon a new trial grant ed by the federal court or when ordered by the appellate court for error in law. Accord ingly one charged' with crime cannot waive a jury trial by twelve jurors ; Jennings v. State, 134 Wis. 307, 114 N. W. 492, 14 L. R. A. (N. S.) 862.
While a person accused of an infamous crime, though not a felony, may waive the disqualification of jurors, or even their im partiality, such person cannot waive his right to a trial by a jury of twelve bY consenting, after a legal jury had been impaneled and two had been excused, to continue the trial and abide by the verdict of the remaining ten ; Dickinson v. U. S., 159 Fed. 801, 86 C. C. A. 625 ; Hill v. People, 16 Mich. 351; per Cooley, C. J.; contra, Com. v. Dailey, 12 Cush. (Mass.) 80, per Shaw, C. J.; a later case being criticized in the case first cited ; but there need not be a jury of twelve in civ il cases ; City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947 ; Roach v. Blakey, 89 Va. 767, 17 S. E. 228 ; Kreuchi v. Dehler, 50 Ill. 176.