Right to a Jury Trial in Civil Actions
![handle is hein.journals/ylr72 and id is 689 raw text is: RIGHT TO A JURY TRIAL IN CIVIL ACTIONS*
FLEMING JAMES, JRf1
I. THE CONSTITUTIONAL RIGHT TO JuRY TRUtL
THE federal Constitution guarantees the right to jury trial in civil actions in
federal courts,' and nearly every state constitution contains a similar guaranty.2
While there are some differences among these provisions, they have been given
an essentially uniform effect for the purpose under discussion here. They do
not extend but preserve the right of jury trial as it existed in English history
at some past time, either in 1791 when the seventh amendment was adopted 3
or, in the case of the states, at the date of the first state constitution.4 And at
such times not all civil matters were tried to a jury. Issues in actions at law
were so tried, with some exceptions; issues in suits in equity were not, unless
the chancellor in his discretion sent an issue to a jury for an advisory verdict.*
Many new rights and remedies have, of course, been created since the adop-
tion of the federal and state constitutions. In devising new remedies the legisla-
ture has considerable latitude to determine whether they shall carry a right
to jury trial.6 The legislature may even abolish a common law remedy, such as
the former action by a servant against his master for injuries caused by the
*This article is from the author's treatise on civil procedure soon to be published by
Little, Brown & Co., Boston, Massachusetts.
tLafayette S. Foster Professor of Law, Yale Law School.
1. U.S. CoNsr. amend. VII.
2. See, e.g., CAL. CONST. art. I, § 7; CONN. CONsT. art. I, § 21. Colorado and Louisiana
have no constitutional quaranty of jury trial in civil actions. COLO. CoNsr. art. 2, § 23; M1iller
v. O'Brien, 75 Colo. 117, 233 Pac. 1088 (1924); LA. CoNST. art. 1, § 9.
3. Dimick v. Schiedt, 293 U.S. 474, 476 (1935); Baltimore & C. Line v. Redman, 295
U.S. 654, 657 (1935).
4. See, e.g., People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 287, 231 P2d 832, 835
(1951) (The constitutional right to jury trial .. . is the right as it existed at common law
at the time the [State] Constitution was adopted... and what that right is, is a purely
historical question, a fact which is to be ascertained like any other social, political or legal
fact.... It is necessary, therefore, to ascertain what was the rule of the English common
law upon this subject in 1850).
Some of the states which were not among the thirteen original colonies interpret their
constitutional provisions as preserving the constitutional right as it had existed in the
territory when identical to the right secured by the Seventh Amendment to the Federal
Constitution, except as it has been modified by later constitutional provision. See, e.g.,
Whallon v. Bancroft, 4 Min. 109 (1860) ; St. Paul & S.C. R.R. v. Gardner, 19 Minn. 132
(1872).
5. Shields v. Thomas, 59 U.S. (18 How.) 253, 262 (1855); Meriden Sav. Bank v.
McCormack, 79 Conn. 260, 64 Atl. 338 (1906); Kimball v. Connor, 3 Kan. 410 (1866);
Brown v. Heller, 30 N.M. 1, 227 Pac. 594 (1924).
6. See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 4849 (1937) (Congress
may provide for administrative finding of unfair labor practice under the Wagner Act, to-
gether with administrative determination that reinstatement of discharged employee with
award of back pay was proper remedy, without impairing Seventh Amendment).](ViewImageLocal?handle=hein.journals/ylr72&div=53&collection=&method=preview&ext=.png&size=3)
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Right to a Jury Trial in Civil Actions
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