PUTNAM, Circuit Judge.
This was a joint indictment of Dickinson and one Foster, the’latter of whom was cashier of the South Danvers National Bank, under section 5209 of the Revised Statutes. Foster and Dickinson rvere convicted on several counts, but not on the fourth and tenth. As Dickinson was entitled to do, he sued out this separate writ of error. The pith of the offense alleged against Dickinson ivas based on the fact that Foster, the cashier, was the principal offender, and that he, as such cashier, unlawfully “converted” certain “money, funds, credit and credits” to the use of Dickinson. The assets so converted were not otherwise described, except [802]*802that, in each count, the value was given in one round sum. Neither was there any further description of the method of conversion. Dickinson was indicted as aiding and abetting. Consequently, Dickinson could not be convicted under any count except as Foster was found guilty as principal.
The pith of the first error alleged is put in the following language:
“That each count of the indictment was vague and indefinite, and did not state with that reasonable certainty required by law the way in which the alleged misapplication was made.”
We do not perceive that the general assertion that the various counts are vague is to be regarded by us except in that it is maintained that there is no description of the way in which the alleged misapplication was made. The plaintiff in error is misled by his own expression “alleged misapplication.” If the word “misapplication” was all there was in the counts, they, of course, would be invalid in accordance with United States v. Britton, 107 U. S. 655, 669, 2 Sup. Ct. 512, 27 L. Ed. 520. There it was held that, in an indictment of this character, the words “willfully misapplied,” without something to show the method of the misapplication, was insufficient. It did not need a decision of the Supreme Court to establish that proposition, because it represents a familiar rule in the criminal law. But, as we have said, it is alleged here that the assets were unlawfully converted to the use of Dickinson, so that the method of misapplica-r tion was shown. The word “convert” has such force at common law that, when used in an indictment, with a statement as to whose use the conversion was made, it needs no amplification, any more than the word “embezzle,” or the words “steal, take and carry away.” This we pointed out in Jewett v. United States, 100 Fed. 832, 837, 41 C. C. A. 88, 53 L. R. A. 568, decided by us on March 29, 1900.
The plaintiff in error relies on Batchelor v. United States, 156 U S. 426, 427, 15 Sup. Ct. 446, 39 L. Ed. 478. That decision is not of much use as a precedent. The difficulty there was that there were long allegations of details, all connected by the words “in the manner following,” and “in the manner aforesaid,” and that the allegations taken as a whole the court could not understand. The only question was one of contradictory pleadings, arising from too much detail, rather than a lack of it as claimed by the plaintiff in error before us. It is quite likely that the pleadings in this case might have been criticised in some particulars not now urged, and that there might have been a variance shown at the trial. It is true that the word “converted” is also awkward in the place where we find it here; but no objection was attempted on that ground, and its use as used here has been accepted by the Supreme Court in a like connection and for the same purpose. Coffin v. United States, 156 U. S. 432, 435, 15 Sup. Ct. 394, 39 L. Ed. 481; 162 U. S. 666, 16 Sup. Ct. 943, 40 L. Ed. 1109. The word “convert,” under the circumstances, must be accepted as intending exactly the same thing as when spoken in connection with the use of the person who was guilty of the conversion. So, also, the plaintiff in error has not relied on any variance, or any inadequacy of description of the assets which were misapplied, except with ref[803]*803erence to the fourth and tenth counts, as to which he was acquitted. On the whole, the indictment, in the particular which we are now considering, is fully covered by our decision in Jewett v. United States, ubi supra.
As we have said, the plaintiff in error was charged with accepting the benefit of the misapplication of the assets of the bank by the cashier. This misapplication was by permitting overdrafts, and also by permitting the discount of various notes and the consequent drafts against the proceeds thereof, many of which notes ultimately involved the bank in serious loss. As the guilty intentions of Dickinson and Foster were involved, it would naturally be assumed that the United States would have sought to prove that they knew that some of these notes were worthless, or lacking sufficient assets behind them; but we are asked to consider objections to prove that Dickinson knew, or had reason to know, that such was the fact. The record shows that the court instructed the jury that the evidence of knowledge on the part of Dickinson would not affect Foster. The portion of the record thus referred to fails to observe whether the court charged that Dickinson’s knowledge would not avail the United States unless the knowledge of Foster was also proven, as it should have done at some part of its charge. However, the following were the objections taken at the trial:
“The evidence in question bad no sufficient legal bearing on the transactions complained of in the indictment or the issues properly involved in tlie trial thereof; the evidence was immaterial or remote; it was not sufficiently connected with the defendants; that it was not sufficiently connected with the transactions complained of in the indictment; it tended to complicate the issue, and to prejudice the jury.”
These objections related to the testimony of numerous witnesses, in a sweeping form. We could have judged them more satisfactorily if exactly what occurred at the trial with reference to the particular evidence of any particular witness had been given us in a detailed, concrete form. The objection that the evidence had no sufficient legal bearing and was immaterial or remote, as a general proposition, certainly was not sound, because it was material to prove Dickinson’s knowledge. That it tended to complicate the issue and prejudice the jury was, of course, ineffectual without explanation. All proofs may do those things. That it was not connected is not a proposition that we can consider on this record, where no statement was made to that effect. The proof was material and admissible under an assurance that it would be connected. If it was not connected, the plaintiff in error had his remedy, but not in the way in which it is now sought to be presented. For example, the topic might not be legitimate if it had appeared that the court had, on the subsequent application of the plaintiff in error, refused to instruct the jury as to the proper method of connecting the proof, or as to its ineffectiveness if not connected with Foster. As the record stands, the admission of the evidence may, or may not, have been error, and it is impossible for us to determine which was the fact.
[804]*804We are also asked to pass on certain correspondence between the Comptroller of' the Currency and some of the witnesses which occurred subsequently to the misapplication charged in the indictment. Some of the directors who were parties to the, letter to the Comptroller thus offered in evidence testified for the United States. It is not necessary to detail this correspondence. If it was offered to contradict, it was admitted at our bar that the ground therefor had’ not been laid for its admission; if it was offered to show merely the state of mind of the directors after the offense had been committed, it was clearly of no consequence; and, if it was offered to show ratification and approval, the directors could neither ratify nor approve as against the United States what was an already completed criminal act. The truth is that, so far as appears, the correspondence was merely ex post facto, and, under the circumstances, immaterial; and it was properly ruled out.
The only remaining point is that, by the consent of both the United States and the plaintiff in error, the verdict was taken from 10 jurors, 2 having been excused. The facts were as follows:
The full jury of 12 was impaneled,, and the trial commenced. While it was proceeding it appeared that one of the jurors, by reason of illness, was unable to sit further, whereupon the following agreement was filed of record:
“Whereas one of the jurors impaneled to try the above-entitled indictment is- unable by reason of illness to further sit therein.
“Now, therefore, we consent and agree that the said juror, to wit, Charles F. Low, may be discharged from the further trial of this indictment, and that the trial how pending may proceed before the remaining eleven jurors with the same force and effect as if said juror had not been discharged.
“John W. Dickinson.
“George M. Foster.
“United States,
“By Boyd B. Jones,
“Special Assistant U. S. Attorney.”
The court proceeded with the trial with the remaining 11 jurors. Subsequently, the trial being still unfinished, death occurred in the family of one of them, and another like agreement was filed of record as to him. The trial proceeded with the remaining 10 jurors, who returned a verdict, subsequently to which a motion in arrest of judgment was filed as follows, and overruled:
“And now, after verdict against the said John W. Dickinson, and before sentence, comes the said John W. Dickinson, by his attorneys, and moves the court hpre to arrest judgment herein and not pronounce the same, because of manifest errors in the record appearing, to wit: Because the said verdict against the said John W. Dickinson was found by a so-called jury consisting of ten (10) jurors only, and not by a jury of twelve (12) jurors, as required by the Constitution, and laws of the United States, and because no judgment against him, the said John W. Dickinson, can be lawfully rendered on said verdict. Powers & Hall,
“Attorneys for the said Defendant.”
It will be noticed that the trial commenced with the constitutional tribunal; that is, a court organized under the Constitution and laws of the United States, with authority to try the offense in question,' and a judge of that court duly appointed and commissioned, and [805]*805authorized to preside at the trial, and a constitutional jury. The difficulty arose subsequently. We refer to these facts so that it may be understood that we do not overlook them, although neither party has made any distinction between a case where the full jury is first impaneled and jurors are subsequently withdrawn with consent of one, and where, with like consent, the jury was from the beginning deficient in numbers. We are not aware that any court or text-writer has ever made any distinction on this score, and we will not attempt one. The following are the constitutional provisions in question:
The second section of article 3, of the Constitution, reads:
“The trial of all crimes, except in eases of impeachment, shall be by jury; and such trial shall be held in the state where the said crime shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress by law may have directed.”
Amendment article 5 reads:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on the presentment or indictment oí a grand jury, except,” etc.; and no one “shall be compelled in any case to be a witness against himself."
Amendment article 6 reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and canso of the accusation ; to be confronted with the witnesses against him; to have compulsor.v process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
Amendment article 7 reads:
“In suits at common law, where the value in controversy shall exceed twenty dolllars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
It is settled that the offense in question before us is an infamous crime within the meaning of the Amendment article 5, though not a felony. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. It has also been repeatedly determined by the Supreme Court that, even when the phraseology of the Constitution is apparently unqualified, it may be construed with certain qualifications in the light of the principles of the common law, of which perhaps the most striking illustrations are Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715. and Capital Traction Company v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873. The latest is Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. There is no question that it was settled law in England that, in a case of felony, the jury panel could not be weakened by waiver of the person prosecuted. Thompson v. Utah, 170 U. S. 343, 353, 354, 18 Sup. Ct. 620, 42 L. Ed. 1061; Queenan v. Oklahoma, 190 U. S. 548, 551, 23 Sup. Ct. 762, 47 L. Ed. 1175. But with regard to misdemeanors, we have made a very diligent search, and find no pronounced practice prior to the Constitution in the English courts or elsewhere with reference to like waivers.
[806]*806It is no doubt true that, within the states of Maine, Massachusetts, and New Hampshire, there has been to a certain extent practical recognition of the power in cases of misdemeanors to waive a full jury as the same was waived here; but apparently this was never formally approved until Commonwealth v. Dailey, 12 Cush. (Mass.) 80, decided in 1853. This practice, whatever it was, is not of such antiquity or universality as to affect the construction of the Constitution of the United States. In the absence of any historical guide, other state courts have arrayed themselves on different sides of the topic in numerous decisions, and under somewhat different constitutional forms of expression, and. to some extent without recognizing any distinction between felonies and such high crimes as are misdemeanors. This has gone so far that it will be of no avail for us to do more than cite two or three of the leading-authorities, and explain our conclusions as briefly as we can. This is especially so in view of the fact that it is beyond our power to enter a judgment which involves finality, and it is also of little consequence what judicial results are reached until we have a determination of the Supreme Court directly on the issue, which determination we have never yet received.
It is plain that Amendments articles 5 and 6 are so expressed, and some of the elements to which they relate are of such a character that there may be waiver to a certain extent by an alleged criminal, at least with regard to misdemeanors; as, for example, the privilege as to criminating testimony, the right to a speedy trial, the right to compulsory process for witnesses, the right to the assistance of counsel for defense, and the right to be confronted by the witnesses. Others the accused cannot waive, as, for example, an indictment in the case of a capital or infamous crime, and a jury drawn from the district specified.
On the other hand, the provisions of section 2 o£ article 3 are peremptory in form, and point out absolutely the tribunal which must dispose of the crimes to which they refer. They cover nothing except what concerns the public interests, as well as personal liberty. The article in unqualified terms establishes the tribunal. Inasmuch as the public, as well as the persons charged, have always an interest in what tribunal shall dispose of prosecutions for high crimes, it would appear prima facie that no prosecuting officer nor any person accused, whether acting separately or by agreement, can substitute another locality or another tribunal for that which the letter of the Constitution designates.
The tribunal pointed out by article 3 consists of a jury, and, by necessary implication, of a court established under the Constitution and the laws, with a judge or judges appointed also according to the Constitution and the laws to preside therein. We have said that there is no authoritative determination with reference to the topic before us; but the jury to be impaneled for a criminal cause within the meaning of the Constitution has been directly and authoritatively determined in Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061, to consist of 12. With the aid of this determination, the third article points out perfectly the el[807]*807ements of the tribunal authorized to proceed against persons accused of crimes like that before us, including equally the court, the judge and the jury, and the number composing the jury. Has any one other than the makers of the Constitution, or those authorized to amend it, the power to substitute for what is thus declared? Xo one has ever conceived an affirmative answer as to the court or judge; and the apparent answer as to the jury would also be in the negative.
To be sure, while the Constitution and the amendments make no literal distinction between a jury for criminal proceedings and a jury for civil proceedings, yet, with reference to bills of exceptions, writs of error, and everything else, the Supreme Court has accepted in civil proceedings verdicts of 9, 10 or 11 jurors as verdicts of constitutional juries; and the right of parties to waive the presence of one or more of the 12 in ordinary suits at common law is conceded. This, however, may be assigned to the fact that at common law the power to waive in civil suits was also conceded; and the authorities which we have cited establish the proposition that the Constitution and its amendments are to be construed in the light of that fact. Again, it is urged, and it is true, that the hardships which may sometimes occur, arising from circumstances like those at bar, in the event of a constitutional inhibition of waiver, may be of the most serious character, sometimes even involving financial ruin of the accused in compelling him to abandon the first trial and go through a. new one; yet, on the other hand, it is urged that it may well be presumed that a person charged with crime acts under duress, so that his consent to waive the advantages which may come to him from insisting on the unanimous concurrence of 12 jurors instead of 10 or 11 ought not to be lightly accepted. Consequently, neither of these considerations presses with so much weight as to enable us to reach a determination of the question before us.
However, as we have said, we do not deem it of value to pursue the discussion throughout. We will put on the one side Chief Justice Shaw and the Supreme judicial Court of Massachusetts as stating the right to waive, under circumstances ás in the case at bar, in Commonwealth v. Dailey, 12 Cush. 80. On the other side, as sound a writer on constitutional law as we have had, Chief Justice Cooley, declared as follows:
“The infirmity in ease o£ a trial by jury of less than twelve by consent would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties; and it would in effect be requiring to submit to a species of arbitration the question whether the accused has been guilty of an offense against the state.” Cooley’s Constitutional Limitations (7th Ed., 1903) 458, 459.
The learned jurist, in stating the direct proposition that a full panel could not lie waived even by consent, adds: “At least in case of felony.” Tut the principle he lays down covers every criminal proceeding where by the Constitution a common-law jury is required. What we .have attributed to him is quoted from the seventh edition of his Constitutional Limitations, but the same will be found in the edition of [808]*8081896, which is the last published during his lifetime. Thus it appears that he reached the result stated at the end of 30 years’ study and reflection. The reasoning which Chief Justice Cooley relied on as supporting the conclusion which we have attributed to him is undoubtedly found in Hill v. The People, 16 Mich. 351, 357, decided in 1868. There the opinion was given by Judge Christiancy, and was concurred in by all the other judges, including Chief Justice Cooley. The doctrine spoken of by Judge Christiancy would sustain the judgment in this case. He proceeded as follows:
“The doctrine rests upon assent; in other words, when reduced to its final analysis, iipon contract. Under our Constitution, in civil cases, there can be no reasonable doubt of the competency of parties to waive such an objection, or to stipulate for a trial by jury of less than twelve, since they can waive the right of a jury trial altogether, and are held to have done so unless it is demanded. But a criminal prosecution, in which the people in their sovereign capacity prosecute for a crime against the laws of the whole society, and seels to subject the defendant to punishment, must, it seems to us, he considered as' a proceeding in invitum, against the will of the defendant throughout, so far as relates to a question of this kind, or any question as to the legal constitution of the court or jury by which he is to be tried. It would be adding materially to the generally recognized force of the obligation of contracts to hold that a defendant charged with a crime might, without a trial, enter into a binding contract with the prosecuting attorney to go to the penitentiary for a certain number of years in satisfaction for the-offense. And yet it would approximate such a position to hold that he- might be bound by a contract providing for a trial before a court or jury unknown to the Constitution or the laws, the result of which trial might be to place him in the same penitentiary.
“The true theory, we think, is that the people, in their political or sovereign capacity, assume to provide by law' the proper tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such; and upon them, therefore, devolves the responsibility, not only of enacting such laws, but of carrying them into effect, by furnishing the tribunals, the panels of jurors, and other safeguards for his trial, in accordance with the constitution which secures his rights. The government, the officers of the law, bring the jurors into the box; he has no control over the matter, who shall be summoned or compose the panel, upon which he may exercise the right of challenge; and the prosecution must see that electors only are placed there, as the law requires.” * * * “It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction.”
The opinion of Chief Justice Shaw was based entirely on propositions initiated by himself, or by the court he represented. All the cases cited by him have been carefully examined, and they in no way meet the difficulty here; and he made no claim that they did. The conclusion he reached stood entirely on the force of his own reasoning, anl he halts when he reaches the following, on page 83 of 12 Cush. (Mass.):
“But it is asked, if consent will authorize a trial before eleven jurors, why not before ten or six, or one. It appears to us, that it is a good answer to say that no departure from established forms of trial in criminal cases can take place without permission of the judge, and no discreet judge would permit any such extravagant or wide departure from these salutary forms as the question supposes, nor any departure, unless upon some unforeseen or urgent 'exigency.”
[809]*809We have been unable to answer satisfactorily the question which he thus asked himself to determine, or to frame any satisfactory rule by which, if the waivers at bar can be sustained, the jury may not be made to consist of 1 man instead of 12. The legal mind involuntarily rejects a proposition that the jury might be so constituted constitutionally; and yet we are unable to determine at what point the weakening of the panel should stop unless it might by consent be reduced to a single individual. Chief Justice Shaw likewise finds no solution except the discretion of the judge; but, while, necessarily the discretion of the judge is often interposed in administering the civil law, and, to a certain extent, the criminal law, it seems wholly inappropriate that it should be availed of in a matter of so grave a character as the construction and practical application of the Constitution of the United States. We are not able to accept a proposition of that kind.
We have referred impliedly to the fact that the rule of the Supreme Court is that, ordinarily, the federal courts in any district may follow the settled practice in criminal cases in the state which includes the district in existence at the time the Constitution was adopted. While this rule may not go so far as to control directly the construction of the Constitution, nevertheless, it cannot be questioned that if, as shown historically, there had been, at the common law, or even in Massachusetts before the Constitution, a practice of excusing jurors in misdemeanors, this would have weight under Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715, Capital Traction Company v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873, and Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 162, 52 L. Ed. --, already cited, as such ancient practices have with regard to waiving the disqualification of jurors, and even their impartiality, at least in trials for misdemeanors. For the traditional law of New England we look to Dane’s Abridgment, where we are unable to find any trace of a practice supporting the proceedings now in review before us; and Chief Justice Shaw, who certainly would have known of such a practice if there had been any, in no degree rested Commonwealth v. Dailey on any assumption of that nature.
_ Of course, the fact to which we have referred is pressed on us, that the right to waive the disqualification of jurors, and even impartiality, is conceded, although the amendments guarantee an “impartial jury.” This, however, is disposed of by the fact which we have explained, that the Constitution is construed in the light of the settled practice of the common law. At the common law it had always been held that such waivers, when permitted, did not constitute error. The precise distinction was made in Queenan v. Oklahoma, 190 U. S. 548, 551, 23 Sup. Ct. 762/47 E. Ed. 1175. There the matter was directly in issue on an indictment for murder, and, as the case came from a territorial court, it involved the Constitution of the United States. It appeared that, in the course of the trial, the United States announced that, since an adjournment, it had been informed that one of the "jurors had been convicted of an offense which, by the local law, was felony; and they gave full information in reference thereto. The opinion observes that [810]*810the territorial court assumed that, for the then purposes, this disqualified the juror from serving; and it continues as follows:
“The court asked the counsel for the prisoner what they desired to do, and its intimation indicated that, if tho objection were pressed, the juror would be excused. This, of course, meant that the trial would have to be begun over again. The counsel for the prisoner answered that they had nothing- to say, and the trial went on. It is now argued that the defendant was deprived of a constitutional right which he could not waive. Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061. The contrary plainly is the law, as well for the territories as for the states.”
This statement that, if the juror had been excused, the trial would have had to be begun over again makes an authoritative determination of a distinction which applies as much to misdemeanors as to felonies, to the effect that it does not follow that, because objections to the qualifications of jurors can be waived, a reduction in their number can also be waived. Therefore, so far as this point is concerned, the United States can take no advantage.
Of course, it would yield no results for us to attempt to go over to> any substantial extent the history of trial by jury, which so many' learned writers have undertaken to explain with more or less success. Therefore, we will refer to only two evidences showing how rigid was the common law so far as applicable here. Lord Dacre’s Case was explained in Kelyng’s Reports, 56. Kelyng showed the authority for his statements. He said it was ruled unanimously by the judges who had been summoned in to the House of Lords, that Lord Dacre could not waive his trial by his peers and be tried by the country; and, also, that, although all the peers did not agree in their verdict, it would still be a good, verdict “so that there be twelve or more.” He added:
“Therefore, the use is never to have less than twenty-three peers for tryers, because that is the least number to be sure that twelve be of one mind.”
So in Eorsyth’s History of Trial by Jury, 241, it is stated that it was decided in the reign of Edward the Third that “a verdict by less than twelve” was a nullity. Authorities for this are cited. Lord Dacre’s Case was, of course, a felony, and perhaps neither of the citations are directly in point here; but the)' show that the common law sought to secure, not merely a jury of 12, but the concurrence of that number. Reasons for this of a very special character have been often suggested.
We fully appreciate- the urgent arguments to the contrary of our propositions; but, in view of the insufficient status of judicial decisions, we do not feel that we are permitted to qualify the situation. Of course, this conclusion has no relation to minor offenses of the class covered by Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99; but it applies to high misdemeanors of the character at bar.
The United States press on us that the Amendments articles 5 and 6 modify, on the question we are considering, article 3 of the Constitution as originally adopted. We find no authority in support of this proposition. The amendments, as we have said, touch some mat[811]*811ters which, by their very nature, are of such a character that a person accused may waive them. They also include other matters which, by their very nature, cannot be waived; as, for example, the requirement of an investigation by a grand jury with regard to infamous crimes seems to be settled in Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223. This requirement, like those of article 3 directing a jury and fixing the place of trial, relates to the frame of government, and therefore it is not subject to the control of the parties. The only expressions we find in the decisions of the Supreme Court relating to this subtopic are in Schick v. United States, 195 U. S. 65, 68, 24 Sup. Ct. 826, 49 L. Ed. 99, and in Callan v. Wilson, at page 549 of 127 U. S., 8 Sup. Ct. 1301, 32 L. Ed. 223. Schick v. United States determines nothing, because it merely says that, “if there be any conflict” between the amendments to the Constitution as originally adopted, “the amendments must control” under the well-understood rule that “the last expression of the will of the lawmaker prevails.” On the other hand, the opinion in Callan v. Wilson states definitively that “there is no necessary conflict.”
The observations in the opinions of the Supreme Court seem to be in complete harmony with the generally accepted rule, to the effect that, while the original Constitution relates to the frame of government, the amendments are in the nature of a “Bill of Rights,” which, of course, is understood to be in the interest of the citizen or subject, and, therefore, prima facie, more or less under his control and subject to waiver. The amendments are described in the first edition of "Story’s Commentaries on the Constitution, § 1776, and in the third edition of the same work at sections 303 and 1857, and in Cooley’s Constitutional Rimitations (7th Ed.) at page 365, as a “Bill of Rights.” Story points out that the Constitution was not supposed to contain any bill of rights, and that no objection to it was proclaimed with more zeal, and pressed with more effect, than the want thereof. The Growth of the Constitution, by Meigs (1900), which, so far as we have examined it, appears to be correctly stated, and which is a convenient handbook with reference to the work of the Constitutional Convention, points out at pages 250 and 314 that the Constitution as originally adopted contained no bill of rights, and that the Convention being divided on the question, all attempts to frame one were dropped. Indeed we might dispose of this entire subtopic by reference to the opinion in Robertson v. Baldwin, 165 U. S., already referred to, according to what appears therein at page 281, 17 Sup. Ct. 329 (41 L. Ed. 715), as follows:
“The law is perfectly well settled that (lie first ten amendments to the Constitution, commonly known as the Bill of Eights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we liad inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case.”
So far, therefore, from this proposition on the part of the United States impressing us, it indicates why it is that the constitution of a jury in criminal cases as to numbers as known to the common law [812]*812is a matter of governmental regulation, while several things which are secured by the amendments, and which may be waived by an accused person, are of a different character. It also assists in explaining the fact that, in accordance with the rules of the common law, some things may be waived, as, for example, the qualification of a particular juror or the right to a speedy trial, while it does not follow that, by analogy, a waiver may extend to any part of the provisions of article 3 of the original Constitution applicable hereto.
The judgment of the District Court and the verdict therein are set aside; and the case is remanded to that court for further proceedings in accordance with law.