“A jury of twelve men must be empaneled, and any less number would not be a common law jury.”
How later courts described this case
- “A jury of twelve men must be empaneled, and any less number would not be a common law jury.”
- “A jury of twelve men -7- must be empaneled, and any less number would not be a common law jury.”
- “The right protected by each constitution was the right of trial by jury as it existed at common law.”
Written by the judges who cited it.
The opinion
Mr. Chief Justice Magruder: I dissent from this opinion. The act is unconstitutional as being a delegation of judicial power to the prison board, a body which owes its existence to executive appointment. The highest and most delicate function of the judiciary is the administration of the criminal law; and to entrust the power to fix the ppuishment of convicted criminals to penitentiary wardens or prison boards, who hold their positions oftentimes as rewards for political service, is to endanger and jeopardize the rights and liberty of the citizen, and the peace and good order of society. It is the duty of courts to courageously declare the law as it is, and not to busy themselves with considerations of expediency, or convenience, or sentimentality.