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

served as usual in civil cases." This proposal prompted the following reaction:

"Mr. Gorham. The constitutin of Juries is different in different States and the trial itself is usual in different cases in different States. "Mr. King urged the same objections.

"Genl. Pinckney also. He thought such a clause in the Constitution would be pregnant with embarrassments.

"The motion was disagreed to nem. con." Id., at 628.

James Wilson of Pennsylvania defended the omission at the Pennsylvania Convention convened to ratify the Constitution:

"The cases open to a jury, differed in the different states; it was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any propriety, be said, that 'the trial by jury shall be as heretofore:' since there has never existed any foederal system of jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions: for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in the courts of equity, do not require the intervention of that tribunal. How, then, was the line of discrimination to be drawn? The convention found the task too difficult for them; and they left the business as it stands-in the fullest confidence, that no danger would possibly ensue, since the proceedings of the supreme court are to be regulated by the congress, which is a faithful représentation of the people: and the oppression of government is effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved." 3 M. Farrand, Records of the Federal Convention 101 (1911).

A proponent of a guarantee responded:

"The second and most important objection to the federal plan, which Mr. Wilson pretends to be made in a disingenuous form, is the entire abolition of the trial by jury in civil cases. It seems to me that Mr. Wilson's pretended answer is much more disingenuous than the objection itself. . . . He says, 'that the cases open to trial by jury differing in the different States, it was therefore impracticable to have made a general rule.' This answer is extremely futile, because a reference might easily have been made to the com

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."" 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 inci

mon law of England, which obtains through every State, and cases in the maritime and civil law courts would, of course, be excepted. ... Quoted in Henderson, supra, n. 7, at 296-297. See also 1 J. Eliot, The Debates in the Several State Conventious, on the Adoption of the Federal Constitution (2d ed. 1836).

That the words "common law" were used merely to establish a general rule of trial by jury in civil cases was the view of Mr. Justice Story in the discussion in his Commentaries of the Seventh Amendment and the Judiciary Act of 1789:

"The phrase, 'common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared, in the third article, 'that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority,' &c., and to all cases of admiralty and maritime jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find, that the amendment requires, that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that the distinction was present to the minds of the framers of the amendinent. By common law they meant, what the constitution denominated in the third article 'law'. . . . And congress seem to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment ;) . . . ." 3 J. Story, Commentaries on the Constitution of the United States 645-646 (1833).

dents 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 consti1.utional 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)." 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

10 Constitutional history does not reveal a single instance where concern was expressed for preservation of the traditional number 12. Indeed, James Wilson of Pennsylvania, a member of the Constitutional Convention and later a Justice of this Court, stated: "When I speak of juries, I feel no peculiar predilection for the number twelve . . . ." 2 The Works of James Wilson 503 (R. McCloskey ed. 1967).

11 See also Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 671 (1918):

"Although the incidents of trial by jury which existed at the time of the adoption of the constitutional guaranty are not thereby abolished, yet those incidents are not necessarily made unalterable. Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree. The question, it is submitted, should be approached in a spirit of open-mindedness, of readiness to accept any changes which do not impair the fundamentals of trial by jury. It is a question of substance, not of form."

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 crimin.l 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,

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. Since then,

12 Although Williams proceeded on the premise that the commonlaw jury was composed of 12 members, juries of less than 12 were common in this country throughout colonial times. See the cases and statutes cited in Fisher, supra, n. 1, at 529-532.

13 See Devitt, The Six Man Jury in the Federal Court, 53 F. R. D. 273, 274 (1971); Augelli, Six-Member Juries in Civil Actions in the Federal Judicial System, 3 Seton Hall L. Rev. 281, 285 (1972); Croake, Memorandum on the Advisability and Constitutionality of Six Man Juries and 5/6 Verdicts in Civil Cases, 44 N. Y. State B. J. 385 (1972). See also Leger v. Westinghouse Electric Corp., 54 F. R. D. 574 (WD La. 1972); contra, Winsby v. John Oster Mfg. Co., 336 F. Supp. 663 (WD Pa. 1972).

14 Williams v. Florida, 399 U. S. 78, 101 n. 48 (1970).