Opinion of Justices
| Decision Date | 15 June 1860 |
| Citation | 41 N.H. 550 |
| Parties | OPINION OF JUSTICES |
| Court | New Hampshire Supreme 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...
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