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Full Opinion
COLGROVE
v.
BATTIN, U. S. DISTRICT JUDGE
Supreme Court of the United States.
Lloyd J. Skedd argued the cause and filed a brief for petitioner.
Cale Crowley argued the cause and filed a brief for respondent.[*]
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Local Rule 13(d) (1) of the Revised Rules of Procedure of the United States District Court for the District of *150 Montana provides that a jury for the trial of civil cases shall consist of six persons.[1] When respondent District Court Judge set this diversity case for trial before a jury of six in compliance with the Rule, petitioner sought mandamus from the Court of Appeals for the Ninth Circuit to direct respondent to impanel a 12-member jury. Petitioner contended that the local Rule (1) violated the Seventh Amendment;[2] (2) violated the statutory provision, 28 U. S. C. § 2072, that rules "shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment . . .";[3]*151 and (3) was rendered invalid by Fed. Rule Civ. Proc. 83 because "inconsistent with" Fed. Rule Civ. Proc. 48 that provides for juries of less than 12 when stipulated by the parties.[4] The Court of Appeals found no merit in these contentions, sustained the validity of local Rule 13 (d) (1), and denied the writ, 456 F. 2d 1379 (1972). We granted certiorari, 409 U. S. 841 (1972). We affirm.
I
In Williams v. Florida, 399 U. S. 78 (1970), the Court sustained the constitutionality of a Florida statute providing for six-member juries in certain criminal cases. The constitutional challenge rejected in that case relied on the guarantees of jury trial secured the accused by Art. III, § 2, cl. 3, of the Constitution and by the Sixth Amendment.[5] We expressly reserved, however, the question *152 whether "additional references to the `common law' that occur in the Seventh Amendment might support a different interpretation" with respect to jury trial in civil cases. Id., at 92 n. 30. We conclude that they do not.
The pertinent words of the Seventh Amendment are: "In Suits at common law . . . the right of trial by jury shall be preserved . . . ."[6] On its face, this language is not directed to jury characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, "suits at common law." And while it is true that "[w]e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself,"[7] the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated, not by concern for preservation of jury characteristics at common law, but by fear that the civil jury itself would be abolished unless protected in express words. Almost a century and a half ago, this Court recognized that "[o]ne of the strongest *153 objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases." Parsons v. Bedford, 3 Pet. 433, 445 (1830). But the omission of a protective clause from the Constitution was not because an effort was not made to include one. On the contrary, a proposal was made to include a provision in the Constitution to guarantee the right of trial by jury in civil cases but the proposal failed because the States varied widely as to the cases in which civil jury trial was provided, and the proponents of a civil jury guarantee found too difficult the task of fashioning words appropriate to cover the different state practices.[8] The *154 strong pressures for a civil jury provision in the Bill of Rights encountered the same difficulty. Thus, it was agreed that, with no federal practice to draw on and *155 since state practices varied so widely, any compromising language would necessarily have to be general. As a result, although the Seventh Amendment achieved the primary goal of jury trial adherents to incorporate an explicit constitutional protection of the right of trial by jury in civil cases, the right was limited in general words to "suits at common law."[9] We can only conclude, therefore, that by referring to the "common law," the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents *156 of trial by jury.[10] In short, what was said in Williams with respect to the criminal jury is equally applicable here: constitutional history reveals no intention on the part of the Framers "to equate the constitutional and common-law characteristics of the jury." 399 U. S., at 99.
Consistently with the historical objective of the Seventh Amendment, our decisions have defined the jury right preserved in cases covered by the Amendment, as "the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure . . . ." Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1935).[11] The Amendment, therefore, does not "bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791," Galloway v. United States, 319 *157 U. S. 372, 390 (1943); see also Ex parte Peterson, 253 U. S. 300, 309 (1920); Walker v. New Mexico & S. P. R. Co., 165 U. S. 593, 596 (1897), and "[n]ew devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. . . ." Ex parte Peterson, supra, at 309-310; Funk v. United States, 290 U. S. 371, 382 (1933).
Our inquiry turns, then, to whether a jury of 12 is of the substance of the common-law right of trial by jury. Keeping in mind the purpose of the jury trial in criminal cases to prevent government oppression, Williams, 399 U. S., at 100, and, in criminal and civil cases, to assure a fair and equitable resolution of factual issues, Gasoline Products Co. v. Champlin Co., 283 U. S. 494, 498 (1931), the question comes down to whether jury performance is a function of jury size. In Williams, we rejected the notion that "the reliability of the jury as a factfinder . . . [is] a function of its size," 399 U. S., at 100-101, and nothing has been suggested to lead us to alter that conclusion. Accordingly, we think it cannot be said that 12 members is a substantive aspect of the right of trial by jury.
It is true, of course, that several earlier decisions of this Court have made the statement that "trial by jury" means "a trial by a jury of twelve . . . ." Capital Traction Co. v. Hof, 174 U. S. 1, 13 (1899); see also American Publishing Co. v. Fisher, 166 U. S. 464 (1897); Maxwell v. Dow, 176 U. S. 581, 586 (1900). But in each case, the reference to "a jury of twelve" was clearly dictum and not a decision upon a question presented or litigated. Thus, in Capital Traction Co. v. Hof, supra, the case most often cited, the question presented was whether a civil action brought before a justice of the peace of the District of Columbia was triable by jury, *158 and that question turned on whether the justice of the peace was a judge empowered to instruct them on the law and advise them on the facts. Insofar as the Hof statement implied that the Seventh Amendment required a jury of 12, it was at best an assumption. And even if that assumption had support in common-law doctrine,[12] our canvass of the relevant constitutional history, like the history canvassed in Williams concerning the criminal jury, "casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law . . . then it was necessarily preserved in the Constitution." 399 U. S., at 92-93. We cannot, therefore, accord the unsupported dicta of these earlier decisions the authority of decided precedents.[13]
There remains, however, the question whether a jury of six satisfies the Seventh Amendment guarantee of "trial by jury." We had no difficulty reaching the conclusion in Williams that a jury of six would guarantee an accused the trial by jury secured by Art. III and the Sixth Amendment. Significantly, our determination that there was "no discernible difference between the results reached by the two different-sized juries," 399 U. S., at 101, drew largely upon the results of studies of the operations of juries of six in civil cases.[14] Since then, *159 much has been written about the six-member jury, but nothing that persuades us to depart from the conclusion reached in Williams.[15] Thus, while we express no view *160 as to whether any number less than six would suffice,[16] we conclude that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases.[17]
*161 II
The statute, 28 U. S. C. § 2072, authorizes this Court to promulgate the Federal Rules of Civil Procedure but provides that "[s]uch rules . . . shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution."[18] Petitioner argues that in securing trial by jury "as at common law" and also "as declared by the Seventh Amendment," Congress meant to provide a jury having the characteristics of the common-law jury even if the Seventh Amendment did not require a jury with those characteristics. As the Court of Appeals observed, "[t]his would indeed be a sweeping limitation." 456 F. 2d, at 1380. Petitioner would impute to Congress an intention to saddle archaic and presently unworkable common-law procedures upon the federal courts[19] and thereby to nullify innovative changes approved by this Court over the years that have now become commonplace and, for *162 all practical purposes, "essential to the preservation of the right" of trial by jury in our modern society. Ex parte Peterson, 253 U. S., at 310; Galloway v. United States, 319 U. S., at 390-391. For to say that Congress chose this means to render our system of civil jury trial immutable as of 1791, or some other date, is to say the Congress meant to deny the judiciary the "flexibility and capacity for growth and adaptation [which] is the peculiar boast and excellence of the common law." Hurtado v. California, 110 U. S. 516, 530 (1884); Funk v. United States, 290 U. S., at 382.
But petitioner's extravagant contention has not the slightest support in the legislative history of the provision. Section 2072 is derived from the Enabling Act of 1934, 48 Stat. 1064.[20] Section 2 of that Act gave this Court the "power to unite the general rules prescribed . . . for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both." H. R. Rep. No. 1829, 73d Cong., 2d Sess., 1 (1934). As emphasized by the Court of Appeals, the language of § 2 preserving the right of trial by jury was included "to assure that with such union [of law and equity] the right of trial by jury would be neither expanded nor contracted." 456 F. 2d, at 1381, citing 5 J. Moore, Federal Practice ¶ 38.06, p. 44 (2d ed. 1971). See also Cooley v. Strickland Transportation Co., 459 F. 2d 779, 785 (CA5 1972). In other words, Congress used the language in question for the sole purpose of creating a statutory right coextensive with that under the Seventh *163 Amendment itself.[21] If Congress had meant to prescribe a jury number or to legislate common-law features generally, "it knew how to use express language to that effect." Williams v. Florida, 399 U. S., at 97.
III
Petitioner's argument that local Rule 13 (d) (1)[22] is inconsistent with Fed. Rule Civ. Proc. 48 rests on the proposition that Rule 48 implies a direction to impanel a jury of 12 in the absence of a stipulation of the parties for a lesser number. Rule 48 was drafted at the time the statement in Capital Traction Co. v. Hof, supra, that trial by jury means a "jury of twelve," was generally accepted. Plainly the assumption of the draftsmen that such was the case cannot be transmuted into an implied direction to impanel juries of 12 without regard to whether a jury of 12 was required by the Seventh Amendment. Our conclusion that the Hof statement lacks precedential weight leaves Rule 48 without the support even of the draftsmen's assumption and thus there is nothing in the Rule with which the local Rule is inconsistent.[23]*164 See Cooley v. Strickland Transportation Co., supra, at 783-785; Devitt, The Six Man Jury in the Federal Court, 53 F. R. D. 273, 274 n. 1 (1971).
Similarly, we reject the argument that the local Rule conflicts with Rule 48 because it deprives petitioner of the right to stipulate to a jury of "any number less than twelve." Aside from the fact that there is no indication in the record that petitioner ever sought a jury of less than 12, Rule 48 "deals only with a stipulation by `[t]he parties.' It does not purport to prevent court rules which provide for civil juries of reduced size." Cooley v. Strickland Transportation Co., supra, at 784.
Affirmed.
*165 MR. JUSTICE DOUGLAS, with whom MR. JUSTICE POWELL concurs, dissenting.
Rule 13(d) (1) of the Revised Rules of Procedure of the United States District Court for the District of Montana provides:
"A jury for the trial of civil cases shall consist of six persons . . . ."
Federal Rule Civ. Proc. 48which came into being as a result of a recommendation of this Court to Congress which Congress did not reject[*]rests on a federal statute.
The two Rules do not mesh; they collide. Rule 48 says that the only way to obtain a trial with less than 12 jurors or a verdict short of a unanimous one is by stipulation.
As MR. JUSTICE MARSHALL makes clear in his dissent, while the parties under Rule 48 could stipulate for trial by an 11-man jury, under the Montana District Court rule only six jurors could be required. Since all apparently agree that the framers of Rule 48 presumed there would be a jury of 12 in the absence of stipulation, the only authority which could reduce 12 to six would be the authority that created Rule 48. Neither we nor the District Court, nor the Judicial Conference, nor a circuit court council has the authority to make that change.
Whether the change, if made, would be constitutional is a question I therefore do not reach.
*166 MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEWART joins, dissenting.
Some 30 years ago, Mr. Justice Black warned his Brethren against the "gradual process of judicial erosion which . . . has slowly worn away a major portion of the essential guarantee of the Seventh Amendment." Galloway v. United States, 319 U. S. 372, 397 (1943) (dissenting opinion). Today, the erosion process reaches bedrock. In the past, this Court has sanctioned changes in "mere matters of form or procedure" in jury trials, Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1935), and in "pleading or practice" before juries, Walker v. New Mexico & S. P. R. Co., 165 U. S. 593, 596 (1897). But before today, we had always insisted that "[w]hatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys [a] substantial and essential feature thereof is one abridging the right." American Publishing Co. v. Fisher, 166 U. S. 464, 468 (1897). See also Dimick v. Schiedt, 293 U. S. 474 (1935); Capital Traction Co. v. Hof, 174 U. S. 1 (1899).
Now, however, my Brethren mount a frontal assault on the very nature of the civil jury as that concept has been understood for some seven hundred years. No one need be fooled by reference to the six-man trier of fact utilized in the District Court for the District of Montana as a "jury." This six-man mutation is no more a "jury" than the panel of three judges condemned in Baldwin v. New York, 399 U. S. 66 (1970), or the 12 laymen instructed by a justice of the peace outlawed in Capital Traction Co. v. Hof, supra. We deal here not with some minor tinkering with the role of the civil jury, but with its wholesale abolition and replacement with a different institution which functions differently, produces different *167 results,[1] and was wholly unknown to the Framers of the Seventh Amendment.[2]
In my judgment, if such a radical restructuring of the *168 judicial process is deemed wise or necessary, it should be accomplished by constitutional amendment. See, e. g., Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo. L. J. 120 (1962). It appears, however, that the common-law jury is destined to expire, not with a bang, but a whimper. The proponents of the six-man jury have not secured the approval of two-thirds of both Houses of Congress and three-fourths of the state legislatures for their proposal. Indeed, they have not even secured the passage of simple legislation to accomplish their goal. Instead, they have relied upon the interstitial rulemaking power of the majority of the district court judges sitting in a particular district to rewrite the ancient definition of a civil jury.[3] They have done so, moreover, in the teeth of an Act of Congress and a Federal Rule promulgated by this Court *169 which, in my judgment, were designed to guarantee the 12-man civil jury. By approving this mode of procedure, the Court turns the so-called "clear statement" rule on its head. Instead of requiring a clear statement from Congress when it legislates at the limit of its constitutional powers, see, e. g., Crowell v. Benson, 285 U. S. 22, 62 (1932), my Brethren approve a departure from settled constitutional understanding despite a clear statement from Congress that it intended no such thing. I must respectfully dissent.
I
At the outset, it should be noted that the constitutional issue in this case is not settled by the prior decisions of this Court upholding nonunanimous and six-man criminal juries. See Apodaca v. Oregon, 406 U. S. 404 (1972); Johnson v. Louisiana, 406 U. S. 356 (1972); Williams v. Florida, 399 U. S. 78 (1970). This is true for at least three reasons.
First, Apodaca, Johnson, and Williams all involved state trials and, therefore, the requirements of the Fourteenth Amendment rather than the Sixth. This case is, of course, distinguishable in that it deals with a federal trial and, therefore, with Bill of Rights guarantees which are directly applicable, rather than applicable only through the incorporation process.[4] Thus, neither Apodaca, Johnson, nor Williams squarely presented the Court with the problem of defining the meaning of jury trial in a federal context.[5] Indeed, as *170 my Brother POWELL'S concurring opinion in Apodaca and Johnson makes plain, there were, as of last Term at least, five Members of this Court who thought that the Sixth Amendment required unanimous jury verdicts in federal cases. See also Johnson v. Louisiana, supra, at 395 (BRENNAN, J., dissenting). MR. JUSTICE POWELL argued in that opinion that the "process of determining the content of the Sixth Amendment right to jury trial has long been one of careful evaluation of, and strict adherence to the limitations on, that right as it was known in criminal trials at common law." Id., at 370 n. 6 He concluded that the Sixth Amendment required unanimous federal juries because "[a]t the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law." Id., at 371. See also Williams v. Florida, supra, at 123-125 (opinion of Harlan, J.). It is apparently uncontested that in 1791, common-law civil juries consisted of 12 men. See infra, at 177. Thus, to the extent that Sixth Amendment precedent is applicable to Seventh Amendment problems, Johnson and Apodaca would seem to cut strongly in favor of a 12-man jury requirement in federal court, rather than against such a requirement.
Moreover, even if it is assumed that the holdings in Apodaca, Williams, and Johnson are readily transferable to a federal context, it still does not follow that the definitions of trial by jury for purposes of the Sixth and Seventh Amendments are necessarily coextensive. The two Amendments use different language and they guarantee different rights. Indeed, as the Williams court itself recognized, the approval of six-man juries in criminal *171 cases did not resolve "whether, for example, additional references to the `common law' that occur in the Seventh Amendment might support a different interpretation." 399 U. S., at 92 n. 30.
The Court today goes to great lengths to show that the reference in the Seventh Amendment to "Suits at common law" speaks only to the type of suit in which a jury is required, not to the type of jury which is required in such suits. However, my brethren totally ignore another textual difference between the Sixth and Seventh Amendments which I consider to be of at least equal significance. Whereas the Sixth Amendment refers only to "an impartial jury," the Seventh Amendment states that "the right of trial by jury shall be preserved" (emphasis added). The Seventh Amendment's additional reference to the preservation of the right strongly suggests that the content of that right is to be judged by historical standards.
Certainly, that has been this Court's understanding in the past. In Dimick v. Schiedt, for example, the Court held that the Seventh Amendment "in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791," 293 U. S., at 487, and the dissent agreed that the purpose of the Seventh Amendment was "to preserve the essentials of the jury trial as it was known to the common law before the adoption of the Constitution." Id., at 490. In Baltimore & Carolina Line, Inc. v. Redman, the Court held that the "right of trial by jury thus preserved [by the Seventh Amendment] is the right which existed under the English common law when the Amendment was adopted." 295 U. S., at 657. And in American Publishing Co. v. Fisher, the Court held that what was guaranteed by the Seventh Amendment was "the peculiar and essential features of trial by jury at the common law." 166 U. S., at 468. It should therefore be *172 clear that, whereas the words of the Sixth Amendment might be read as permitting a functional approach which measures "Sixth Amendment values," the Seventh Amendment requires a historical analysis geared toward determination of what the institution was in 1791 which the Framers intended to "preserve." See also Slocum v. New York Life Ins. Co., 228 U. S. 364 (1913); Capital Traction Co. v. Hof, 174 U. S. 1 (1899).
Finally, it is important to note that, whereas the legislative history of the Sixth Amendment tended to support the Court's decision in favor of six-man criminal juries, it is at best ambiguous in the Seventh Amendment context. As the Court pointed out in Williams, the Sixth Amendment as originally introduced by James Madison in the House provided "[t]he trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites." 1 Annals of Cong. 435 (1789) (emphasis added). The Amendment passed the House in this form, but when it reached the Senate, that body expressly rejected the "accustomed requisites" language, see Senate Journal, Sept. 9, 1789, 1st Cong., 1st Sess., 77, and the Amendment as ultimately adopted contained no reference to the common-law features of jury trial.
In contrast, the history of the Seventh Amendment contains no express rejection of language which would fix the common-law attributes of the civil jury. Indeed, as the Court itself recognizes, the extant history of the Amendment is exceedingly sketchy. See generally Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289 (1966). Undeterred by the absence of source material, however, my Brethren concoct an elaborate theory designed to demonstrate that the Framers did not intend to fix the nature of the civil jury as it existed at common law. As I read the *173 majority opinion, the theory is based on the following syllogism:
1. The delegates to the Constitutional Convention considered a clause which would have protected the right to a civil jury, but declined to adopt such a provision because state practice varied widely as to the cases in which a civil jury was provided.
2. When the Seventh Amendment was passed, Congress overrode the arguments of those opposed to a constitutional jury guarantee and decided to provide a federal right of jury trial despite differences between the States as to when jury rights attached.
3. Therefore, in the words of the Court "[w]e can only conclude . . . that . . . the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury."
It hardly requires demonstration that this "logic" rests on the flimsiest of inferences. It simply does not follow that because the Amendment was, at one stage rejected because of disparities among the States in the instances in which the jury right attached, its scope is therefore limited to the surmounting of these disparities. Indeed, the opposite conclusion is equally plausible. One could argue that, whereas there was dispute as to the cases in which the jury-trial right would attach, it was common ground between opponents and proponents of the measure that when it did attach, its incidents would be as at common law. Thus, whatever the meaning of the Amendment as to jury usage, the nature of the jury is, by this argument, at its core and agreed to by all parties.
Moreover, even if the Court's chain of reasoning were correct, the argument would still fall, since it is grounded on a faulty major premise. True, the opponents of a jury guarantee at the Constitutional Convention rested *174 their argument in part on the varying practice in the States as to the cases in which the right of jury trial attached. But a more detailed examination of the debates than the Court's highly selective quotations permit makes clear that the opponents also rested on the differences in the characteristics of jury trial between the States. Thus, when a jury guarantee was first proposed, Mr. Gorham, one of the principal drafters of the Constitution, argued against the proposal, stating: "It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter." 2 M. Farrand, Records of the Federal Convention 587 (1911) (hereinafter cited as Farrand). But when the proposal came to a final vote, Mr. Gorham made a somewhat different argument: "The constitution of Juries is different in different States." Id., at 628 (emphasis added). Similarly, while at one stage James Wilson defended the absence of a jury requirement on the ground that "[t]he cases open to a jury, differed in different states," 3 Farrand 101, he also made a quite different argument:
"By the constitution of the different States, it will be found that no particular mode of trial by jury could be discovered that would suit them all. The manner of summoning jurors, their qualifications, of whom they should consist, and the course of their proceedings, are all different, in the different States; and I presume it will be allowed a good general principle, that in carrying into effect the laws of the general government by the judicial department, it will be proper to make the regulations as agreeable to the habits and wishes of the particular States as possible; and it is easily discovered that it would have been impracticable, by any general regulation, to have given satisfaction to all. 3 Farrand 164.
*175 Thus, it is clear that opponents of a jury guarantee were concerned not only with the differing rules for when juries were required among the States, but also with the differing content of the jury right itself.[6] To the extent that anything at all can be inferred from the rejection of these arguments, it follows by the Court's own chain of reasoning that the Framers intended to override state differences as to both the cases in which a jury right would attach and the characteristics of the jury itself.
I should hasten to add that I do not mean to embrace that chain of reasoning. In fact, as indicated above, I view the legislative history as far too fragmentary to support any firm conclusion. But I would have thought that the very uncertainty of the legislative history would support a mode of analysis which looked to the jury as it existed at the time the Seventh Amendment was written in order to determine the intent of the Framers. As Mr. Justice Harlan argued:
"[I]t is common sense and not merely the blessing of the Framers that explains this Court's frequent reminders that: `The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' Smith v. Alabama, 124 U. S. *176 465, 478 (1888). This proposition was again put forward by Mr. Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), where the Court was called upon to define the term `citizen' as used in the Constitution. `The Constitution nowhere defines the meaning of these words [the Citizenship Clause]. . . . In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.' 169 U. S., at 654. History continues to be a wellspring of constitutional interpretation. Indeed, history was even invoked by the Court in such decisions as Townsend v. Sain, 372 U. S. 293 (1963), and Fay v. Noia, 372 U. S. 391 (1963), where it purported to interpret the constitutional provision for habeas corpus according to the `historic conception of the writ' and took note that the guarantee was one rooted in common law and should be so interpreted. Cf. United States v. Brown, 381 U. S. 437, 458 (1965)." Williams v. Florida, 399 U. S., at 123-124.
When a historical approach is applied to the issue at hand, it cannot be doubted that the Framers envisioned a jury of 12 when they referred to trial by jury. It is true that at the time the Seventh Amendment was adopted, jury usage differed in several respects among the States. See generally Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289 (1966). But, for the most part at least, these differences did not extend to jury size which seems to have been uniform and, indeed, had remained so for centuries. One authority has noted that as early as 1164, the Constitutions of Clarendon provided that "where, in the case of a layman so rich and powerful that no individual dares *177 to appear against him, `the sheriff shall cause twelve legal men of the neighbourhood, or of the vill, to take an oath in the presence of the bishop that they will declare the truth about it.'" Wells, The Origin of the Petit Jury, 27 L. Q. Rev. 347 (1911). As Professor Scott wrote, "At the beginning of the thirteenth century twelve was indeed the usual but not the invariable number. But by the middle of the fourteenth century the requirement of twelve had probably become definitely fixed. Indeed this number finally came to be regarded with something like superstitious reverence." A. Scott, Fundamentals of Procedure in Actions at Law 75-76 (1922) (footnotes omitted). See also 1 W. Holdsworth, A History of English Law 324-325 (7th ed. 1956).
To be sure, not every element of English common law was carried over without change in the Colonies. In the case of jury trial, however, "in general this venerable and highly popular institution was adopted in the colonies in its English form at an early date." Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 412 (1907). As the Court concluded in Williams v. Florida, "[t]he States that had adopted Constitutions by the time of the Philadelphia Convention in 1787 appear for the most part to have either explicitly provided that the jury would consist of 12, see Va. Const. of 1776, § 8, in 7 F. Thorpe, Federal and State Constitutions 3813 (1909), or to have subsequently interpreted their jury trial provisions to include that requirement." 399 U. S., at 98-99, n. 45.[7]
*178 On the basis of this historical record, this Court has more than once concluded that the Seventh Amendment guarantees the preservation of 12-man juries.
As the Court, speaking through Mr. Justice Gray, said in Capital Traction Co. v. Hof,
"`Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is . . . a trial by a jury of twelve men before an officer vested with authority to cause them *179 to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict . . . . This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books." 174 U. S., at 13-14.
Cf. Patton v. United States,