In taking that course in Baldwin, I cannot, in a matter that goes to the very pulse of sound constitutional adjudication, consider myself constricted by stare decisis. U.S. 78, 122]. [399 Virginia: Constitution, Art. The Court, in stripping off the livery of history from the jury trial, relies on a two-step analysis.

"The Senate," wrote Madison: "are . At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the petitioner from the beginning planned to divulge at trial. .". See id. ] Nor do I think it offends the Equal Protection Clause for New York not to provide juries to hear offenses punishable by six months in New York City but to have such a provision for trials elsewhere in the State.

] See Heller, supra, n. 25, at 93.

346

That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12.

(1937), and "selective incorporation" is not an abstract one whereby different verbal formulae achieve the same results.

U.S. 335

In addition, it appears that at least nine States presently provide for less than 12-man juries in trials of certain offenses carrying maximum penalties of one year's imprisonment.

U.S. 78, 101] And, at worst, the spell of the theory's logic compels the Court either to impose intolerable restrictions upon the constitutional sovereignty of the individual States in the administration of their own criminal law, or else intolerably to relax the explicit restrictions that the Framers actually did put upon the Federal Government in the administration of criminal justice.

127 My Brother HARLAN, however, charges that the Court's decision on this point is evidence that the "incorporation doctrine," through which the specific provisions of the Bill of Rights are made fully applicable to the States under the same standards applied in federal courts

If a defendant fails to file and serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. . Laws 1890-1891, pp. September 25, 1968, p. 4.

While this Court has said that the most significant index to the seriousness of an offense is the degree of penalty that attaches, see Frank v. United States, 395 U. S. 147, 395 U. S. 148 (1969); District of Columbia v. Clawans, supra, it should be recalled that this is not alone determinative, and that the, "apportioned punishment was both a consequence of the minor quality of the misconduct and an index of the community's moral judgment upon it.". [Footnote 34] Indeed, pending and after the adoption of the Constitution, fears were expressed that Article III's provision failed to preserve the common law right to be tried by a "jury of the vicinage." Fourth Circuit

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