There can be no valid trial jury of less than 12 men, and a consent even by the defendant to a trial by a less number is absolutely void.

Explanation

(English-origin maxim.) The common law right to trial by jury means a jury of twelve — a trial by fewer than twelve is void, and no party's consent can validate what the law prohibits.

Where this applies

• A defendant convicted by an eight-person jury appeals, and the conviction is overturned because a valid jury requires twelve members.
• A judge asks if the defendant will agree to proceed with only eleven jurors after one falls ill, but the defense objects because even the defendant's consent cannot validate a jury of fewer than twelve.
• A state legislature passes a law allowing six-person juries in felony cases, and the law is struck down because the common-law right to a jury means twelve, period.