Amdt7.1.2.4 Composition and Functions of a Jury in Civil Cases

Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, 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.

Traditionally, the Supreme Court has treated the Seventh Amendment as preserving the right of trial by jury in civil cases as it existed under the English common law when the amendment was adopted.1 The right was to a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.2 Decision of the jury must be by unanimous verdict.3 In Colgrove v. Battin,4 however, the Court by a five-to-four vote held that rules adopted in a federal district court authorizing civil juries composed of six persons were permissible under the Seventh Amendment and congressional enactments. By the reference in the Amendment to the common law, the Court thought, 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 incidents of trial by jury.5

The primary purpose of the Amendment is to preserve the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court.6 But it does not exact the retention of old forms of procedure; nor does it prohibit the introduction of new methods of ascertaining what facts are in issue or new rules of evidence.7 Those matters that were tried by a jury in England in 1791 are to be so tried today and those matters, such as matters that fall under equity, and admiralty and maritime jurisprudence, that were tried by the judge in England in 1791 are to be so tried today,8 and when new rights and remedies are created the right of action should be analogized to its historical counterpart, at law or in equity, for the purpose of determining whether there is a right of jury trial, unless Congress has expressly prescribed the mode of trial.9


  1.  Jump to essay-1Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–48 (1830).
  2.  Jump to essay-2Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).
  3.  Jump to essay-3Maxwell v. Dow, 176 U.S. 581 (1900); American Publishing Co. v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 (1897).
  4.  Jump to essay-4413 U.S. 149 (1973). Justices Marshall and Stewart dissented on constitutional and statutory grounds, id. at 166, while Justices Douglas and Powell relied only on statutory grounds without reaching the constitutional issue. Id. at 165, 188.
  5.  Jump to essay-5413 U.S. at 155–56. The Court did not consider what number less than six, if any, would fail to satisfy the Amendment’s requirements. What is required for a ‘jury’ is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. . . . It is undoubtedly true that at some point the number becomes too small to accomplish these goals . . . Id. at 160 n.16. Application of similar reasoning has led the Court to uphold elimination of the unanimity as well as the 12-person requirement for criminal trials. See Williams v. Florida, 399 U.S. 78 (1970) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion) (unanimity); and Sixth Amendment discussion, supra, The Attributes of the Jury.
  6.  Jump to essay-6Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897); Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497–99 (1931); Dimick v. Schiedt, 293 U.S. 474, 476, 485–86 (1935).
  7.  Jump to essay-7Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).
  8.  Jump to essay-8Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–47 (1830); Slocum v. New York Life Ins. Co., 228 U.S. 364, 377–78 (1935); Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt, 293 U.S. 474, 476 (1935). But see Ross v. Bernhard, 396 U.S. 531 (1970), which may foreshadow a new analysis.
  9.  Jump to essay-9Luria v. United States, 231 U.S. 9, 27–28 (1913).