(dissenting).
I respectfully dissent. I do not dispute the majority’s belief that the framers of the Minnesota Constitution had the number 12 in mind as the proper number of jurors in 1857 when they guaranteed the right to trial by jury. However, the fact remains that when article I, section 6 was drafted, the framers used the phrase “impartial jury,” and did not specify any particular number of jurors. I do not believe that the number 12 has constitutional significance under the current language of article I, section 6.
It is my view that the legislature is constitutionally empowered to determine jury size within the limits of due process. It is true that the court in State v. Everett, 14 Minn. 439, 444 (Gil. 330, 331) (1869), held that “[t]he word ‘jury’ in this connection imports a body of twelve men.” However, the state conceded, i.e., did not controvert, that trial by a jury of six men in the justice of peace court where Everett was convicted “was not the trial by jury guaranteed by the constitution.” The state only argued that the requirement of posting a bond as a condition to a grant of a trial de novo before a jury of 12 met constitutional muster. The present challenge to the requirement of a jury of less than 12 persons is the first direct challenge to the numerical requirement to come before this court. I believe Everett’s holding to be erroneous and I would hold that Minn.Stat. Section 593.01, subdivision 1 (1986) is constitutional.
It is significant that in Minnesota the size of a jury has always been regulated by statute. If “jury” in the constitution means a panel of 12 persons, why was it necessary to enact, both before and after the adoption of the Minnesota Constitution, statutes determining jury size? Under the territorial laws, a jury was defined for some cases as a body consisting “of twelve men, chosen by lot, as prescribed in this chapter, and sworn to try and determine the issue by an unanimous verdict.” Rev. *388Stat. (Terr.), ch. 126, § 160 (1851). However, for cases before a justice of the peace, a jury consisted of “six persons.” Rev.Stat. (Terr.), ch. 69, art. IV, § 58 (1851). After Minnesota became a state, the legislature defined a petit jury to consist “of twelve men.” Pub.Stat. ch. 112, § 15 (1858). Statutory authorization for smaller juries again appears in Minn.Stat. ch. 65, § 57 (1878), which provided, for some cases, “that upon consent of both parties * * * a jury of six may be ordered.” Throughout our territorial and state history, the legislature has always enumerated jury size. This court has held from its earliest decisions that the right to a jury under the constitution is the same as it existed under the territorial laws. The right was neither added to or eliminated by the adoption of the constitution. Whallon v. Bancroft, 4 Minn. 109, 113 (Gil. 70, 74) (1860). I believe that the unbroken line of statutes which have set juror numbers are persuasive evidence that the framers intended no fixed and unchanging number, but rather that the power to legislate jury size was carried forward into our constitution and intended to do so by the framers.
There can be no doubt that the right to an impartial jury is deeply rooted in our history. By the same token, the characteristics and composition of juries has a long tradition within our law. However, unlike the right to an impartial jury, the characteristics of the jury and the qualifications of jurors have not been impervious to change, nor have they been given constitutional stature. At early common law the jury was composed of persons who had actual knowledge of the case and the litigants. At one time in Minnesota, only persons eligible to vote could properly sit on juries. Thus blacks, women and most Native Americans were prohibited from participation. Additionally, at one time in our national history, even religious tests were required. However, as society has developed, all of these former requirements have been abandoned or removed. Therefore, so long as the right to an impartial jury is maintained, the incidents of the jury should be allowed to evolve. I believe that the legislature has the power to prescribe the number of jurors within due process limits.
This court has previously spoken to the powers of the legislature to determine jury size. First, in State v. Rosenberg, 155 Minn. 37, 38, 192 N.W. 194, 194 (1923), this court stated, albeit in dicta, that “[ujnless otherwise provided, ‘the jury must consist of twelve.’ ” (emphasis added, citation omitted). Again, in Johnson v. Holzemer, 263 Minn. 227, 235, 116 N.W.2d 673, 678 (1962), this court, in discussing the right to a jury under article I, section 4, stated that “under this constitutional provision the legislature has defined the jury required thereby as ‘a body of 12.’ ” (emphasis added, citation omitted). These references show an acknowledgment by this court that jury size is an appropriate subject matter for legislative control. Indeed, it would seem odd for this court to refer to and accept the legislature’s definition of juror numbers if it were beyond the legislature’s power to so define.
Other courts have wrestled with the question we face today. The state of Florida provided by statute for six member juries under a state constitutional provision that provided for “impartial jury.” The statute apparently comported with the Florida Constitution’s definition of “impartial jury.” The statute, however, was challenged as a violation of the sixth amendment to the United States Constitution, which also provides for an “impartial jury.” See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). The Williams court held that the sixth amendment does not require 12 jurors in state criminal cases. In Williams, the Court was faced with long-standing precedent that held a constitutional jury must have 12 members. 399 U.S. at 90, 90 S.Ct. at 1900; see Thompson v. Utah, 170 U.S. 343, 349, 18 S.Ct. 620, 622, 42 L.Ed. 1061 (1898) (a constitutional jury is “constituted, as it was at common law, of twelve persons, neither more nor less.”). However, on reexamination, the Court determined that the prior courts had merely assumed that a jury must have 12 members. 399 U.S. at 90, 90 S.Ct. at 1900. The Court examined the *389purposes behind trial by jury and found that its main function is to prevent government oppression of individuals. The fact that the number 12 had come into common use was viewed as the product of an historical accident. The Court concluded that freezing the size of the jury at 12 would not further the purpose of the right to an impartial jury.
Since Williams, several courts have examined the phrase “impartial jury” in criminal cases under state constitutions. Only one state expressly found that phrase to constitutionally require a jury of 12 in criminal cases. See Advisory Opinion to the Senate, 108 R.I. 628, 633, 278 A.2d 852, 855 (1971).
Other cases have found no state constitutional requirement of 12-person juries in the absence of an express mandate. For example, in Opinion of the Justices, 360 Mass. 877, 882-84, 271 N.E.2d 335, 339-40 (1971), the Massachusetts court held that the details surrounding the right to a jury are not immutable. Noting that women are now allowed to serve, in contravention to the common law, the court held that other aspects of a jury should also be allowed to adapt as society changes. Id. Consequently, 12-person juries were not required. Accord Pitcher v. Lakes Amusement Co., 236 N.W.2d 333, 337 (Iowa 1975) (civil case).
Similarly, in Matter of Public Law No. 305 and Public Law No. 309 of Indiana Acts of 1975, 263 Ind. 506, 513-14, 334 N.E.2d 659, 662-63 (1975), the Indiana court validated a statute calling for six member juries in some cases. Like Minnesota, Indiana had long-standing precedent that indicated a 12-member jury was constitutionally required. Id. Relying on Williams, the Indiana court overruled these cases. Id. Indiana, like Rhode Island and Minnesota, has a provision in its constitution mandating that the right of a jury remain inviolate. However, that court did not believe this disallowed the statutory change, nor should it, since only the attributes of, and not the right to a jury had been changed.
The fact that jury size has always been regulated by statute cuts against the argument that the framers of the Minnesota Constitution believed and intended that a jury must invariably be set at 12 people. In fact, much the opposite was the probable intent. It is quite likely that the framers had the number 12 in mind when they originally drafted article I, section 6, in 1857. However, it is significant that they chose not to specify a precise number.
Our state constitution, like the United States Constitution, was intentionally written in broad and general terms to allow for change as society changes. It is not enough to recognize an original intent of the 1857 framers and say that 12 was intended for all time. To do so would also put the constitutional stamp of approval on many of the other outdated concepts surrounding a jury. Not only is that wrong as a matter of policy, in light of social changes, it is also wrong as a matter of law, as constitutional amendments, decisions of this court, decisions of the United States Supreme Court and laws passed by the federal Congress have disallowed many of the incidents of the early jury.
The essential and overriding purpose of the jury in a criminal case is to allow a group of lay people to stand between the state and the defendant and use its common sense judgment in considering the facts and the law in reaching a decision on the defendant’s guilt or innocence.1
In conclusion, I believe that all of these authorities clearly show that the legislature has the power to regulate jury size. I am also of the view that Minn.Stat. § 593.01, subdivision 1 (1986), is a valid exercise of that power. Consequently, I *390would overrule the Everett court insofar as it is inconsistent with this view and would affirm the trial court.
. Another important function served by the jury is that it spreads the responsibility of finding guilt or innocence among a group of the defendant’s peers. See Williams, 399 U.S. at 100, 90 S.Ct. at 1905. However, I cannot see how the performance of this role is a function of any particular number of jurors. Our legislature may have and has shown to have its own views on the relative value of jury size. As our current statute demonstrates, the legislature has determined that a larger jury is preferable in felony cases. Within the limitation of due process, I think it is wholly appropriate for the legislature to make these determinations.