The Civil Jury Trial Clause

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .

—Renée Lettow Lerner

Introduction

At the time of the Founding, the right to jury trial in criminal cases was well-accepted. The drafters of the original Constitution put that right into Article III, Section 2, and the Sixth Amendment repeated it. (See Essay Nos. 136 and 176.) But the right to jury trial in civil cases was controversial. After much debate, the Seventh Amendment guaranteed the right to civil jury trial, in a provision known as the Civil Jury Trial Clause or the Preservation Clause. The controversy over the clause continues today; the right to civil jury trial is one of the few provisions in the first eight amendments to the Constitution that has not been incorporated against the states.

History Before 1787

In England, the use of juries in civil cases dates back to the twelfth century. To prevent juror confusion, English judges took care that a civil jury only had to decide one factual issue per case. This narrowing of the case was called “pleading to issue.” In the eighteenth century, the single-issue rule had relaxed slightly, but the pleading requirements still ensured that only a few issues of fact per case would go to the jury. English judges forbade the joinder of multiple claims and parties.¹

This drastic simplification distorted many disputes, even as the English legal system had to decide more complicated cases. The English solved the problem by setting up non-jury courts and procedures for these cases. In effect, England had multiple legal systems. The main non-jury court was the Court of Chancery, whose substantive law and procedure were known collectively as equity.² There were other non-jury courts such as the Court of Admiralty. Meanwhile, the jury courts were known as the common-law courts.

Sir William Blackstone lavished praise on the civil jury as the “bulwark of our liberties” and “the glory of English law.”³ Blackstone declared that the civil jury’s main advantage was that it helped to counteract the class biases of judges.⁴ Judges in Blackstone’s time were part of the upper classes. In contrast, jurors, although subject to property qualifications, were generally of the middling sort, such as merchants or yeoman farmers.

In the struggles between the American colonies and Britain leading up to the American Revolution, civil juries, like criminal juries, assumed great importance. Civil juries could nullify hated British laws. “Nullification” is the term for a jury’s deciding against the law and the facts of a case. In the eighteenth century, jury nullification often involved defying the judge’s comments on evidence and instructions on law. The jury was one of the few means of achieving popular influence on government, as the colonists lacked representation in the British Parliament. In Erving v. Cradock (1761), a smuggling Massachusetts merchant sued a customs inspector for trespass and won a large verdict from a jury.⁵ The royal governor of Massachusetts warned his superiors in London that such verdicts nullified the customs laws.⁶ He wrote that, in effect, juries were overturning the judgments of the Court of Admiralty, which sat without juries.

Colonists viewed the jurisdiction of the juryless admiralty courts as a major grievance. The Stamp Act Congress of 1765 complained about the expansion of admiralty courts.⁷ The Declaration of Independence listed “depriving us, in many cases, of the benefits of trial by jury” as a reason for separation from England.⁸

After independence, the new states hastened to put the right to a jury trial, both civil and criminal, into their constitutions or declarations of rights.⁹ But civil juries’ nullification of laws, which had seemed so beneficial during the conflicts with Britain, began to seem less so once Americans started governing themselves.¹⁰ State juries were sympathetic to debtors; they often nullified the laws of contract. Why should twelve persons be able to nullify laws enacted by a legislature that was elected by the people?

The Constitutional Convention and Ratification Debates

Debates in the Philadelphia Convention highlighted the difficulties with including a right to civil jury trial in the federal Constitution. Hugh Williamson of North Carolina raised the question of a right to civil jury trial late in the proceedings—five days before the scheduled adjournment.¹¹ Elbridge Gerry of Massachusetts agreed that a right to civil jury trial in federal court was necessary to protect against corrupt judges. But several other delegates argued that it would be impossible to specify when civil juries should be used and that the question should be left to the legislature. George Mason of Virginia conceded the difficulty of specifying which civil cases should go to juries. He thought that a “general principle” laid down concerning civil juries would be sufficient. Mason took the opportunity to argue for a general bill of rights, which the Convention promptly rejected.¹²

A few days later, Charles Pinckney of South Carolina and Elbridge Gerry moved to insert the following language into Article III: “And a trial by jury shall be preserved as usual in civil cases.”¹³ Several delegates pointed out that the states had different practices concerning when to use civil juries, so there was no national “usual” practice. One of these delegates, Pinckney’s first cousin Charles Cotesworth Pinckney, declared that such a clause in the Constitution would be “pregnant with embarrassments.” The Convention voted down the proposal unanimously, and the draft Constitution did not contain a right to civil jury trial.

That omission set off fierce objections among the Anti-Federalists. Both George Mason and Elbridge Gerry refused to sign the draft Constitution, and both gave as a reason the lack of a right to a civil jury.¹⁴ In the Virginia ratifying convention, Patrick Henry warned of the plight of a debtor sued in federal court without a jury.¹⁵ Although Henry did not say so directly, he implied that he approved of civil juries’ tendency to sympathize with debtors and to nullify the laws of contract. James Madison, opposing Henry, worried that state civil juries were so hostile to creditors, especially foreign creditors, that they discouraged the investment the new Republic badly needed.¹⁶

The Anti-Federalists were also concerned about a structural problem: The draft constitution created a powerful and extremely independent judiciary. Brutus argued that the federal judges would wield uncontrolled power. He wrote that the federal judges would be “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”¹⁷ The Anti-Federalists, fearing judicial tyranny and also wanting to control the executive and legislature through juries, insisted on a right to civil jury trial in federal court.¹⁸

The Anti-Federalist arguments forced Alexander Hamilton to acknowledge that the most successful objection to the draft constitution was the lack of a guarantee of jury trial in civil cases. In Federalist No. 83, Hamilton undertook to justify why it was not necessary. First, in an objection that echoed those of delegates at the Philadelphia Convention, he argued that the distinction between the common law and equity would make such a provision difficult to draft. Second, he argued that juries could not handle complicated cases. Third, he observed that reform of procedural systems is continuously necessary, and the trend was to reduce the scope of jury trial. Therefore, the question of when to use civil jury trial should be left to the legislature. In Hamilton’s view, the best argument for the civil jury was corruption in the judiciary, a circumstance that he described as “foreign to the preservation of liberty.” Hamilton implied that the best way to address this evil was to deal with it directly by removing corrupt judges.

Despite Hamilton’s arguments, the Anti-Federalists remained adamant about the need for a guarantee of a civil jury trial in federal court. While the Anti-Federalists lacked the political power to block ratification or even to condition ratification on including such a right, a number of state conventions, or minorities within them, recommended an amendment providing a right to civil jury trial.¹⁹ Several of these drew from the text of George Mason’s 1776 Virginia Declaration of Rights: “[I]n controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.”²⁰ For example, the Pennsylvania ratification convention’s minority report proposed this text: “In controversies respecting property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the federal courts, as in those of the several states.”²¹ The Virginia ratification convention, not surprisingly, also stuck closely to Mason’s formulation: “[I]n controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and to remain sacred and inviolable.”²²

Adoption of the Seventh Amendment

The political threat was serious enough that James Madison feared that a second constitutional convention would be called.²³ During the First Congress, Representative Madison was determined to draft and introduce a set of amendments that included a right to civil jury trial. He had promised his constituents that he would do so as a condition of being elected to the House of Representatives. More generally, he wanted to reassure Americans whose support for the new Constitution and government was wavering. This concern was especially pressing in North Carolina and Rhode Island, which had not yet ratified the Constitution.²⁴

Madison had before him many different suggestions and models for a civil jury right from the states.²⁵ On June 8, 1789, Madison introduced his proposed amendments to the Constitution in the House of Representatives. His proposal for civil juries stayed fairly close to the model from the Virginia ratifying convention, in which he had been a key participant: “In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.”²⁶ Madison’s vague formulation of “common law” papered over the many different practices of the states.

At the same time, Madison introduced a separate amendment that ultimately became the Seventh Amendment’s Re-examination Clause. That clause provides that “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.” (See Essay No. 183.)

By July 1789, Madison was frustrated with the lack of progress on his proposed amendments. On July 21, he proposed a committee to look into amendments to the Constitution, to be composed of one member from each state represented.²⁷ The committee thus became known as the Committee of Eleven, and Madison was appointed the member from Virginia.

The Committee of Eleven made its formal report a week later on July 28. It streamlined Madison’s original proposed amendment concerning civil juries and kept his vague formulation concerning the common law: “In suits at common law, the right of trial by jury shall be preserved.” On August 18, the House of Representatives adopted this language, apparently without debate.²⁸ It then sent the draft amendments, including the right to civil jury trial, to the Senate.

On September 7, the Senate approved the House language concerning civil jury trial and added the words: “where the consideration exceeds twenty dollars.”²⁹ That $20 threshold has puzzled many. At the time, the Senate’s usual practice was to meet behind closed doors, and therefore its records are much less extensive than those of the House. Because the debates in the Senate were not recorded, we do not know exactly why the threshold was added. But now we have a good idea. In England, the long-standing threshold for the jurisdiction of the common-law courts, which sat with juries, was a claim of 40 shillings. That threshold dated back to the Middle Ages and remained constant through the eighteenth century. Legal historian Philip Hamburger has pointed out that American states approximated this threshold using their currency. The state thresholds for jury trial varied according to the differing value of the states’ currencies. Twenty dollars seems to have been the Senate’s effort to approximate the ancient common-law threshold.³⁰

A few days later, on September 9, the Senate combined the House’s separate proposed amendments concerning civil jury trial and re-examination of facts into one amendment.³¹ The Seventh Amendment took on the precise wording it has today. Following the report of the Committee of Conference, the House agreed to the Senate’s changes without debate.³²

At exactly the same time, Congress had hammered out a statutory compromise on civil juries. The Judiciary Act of 1789 specified that in federal court, juries would determine facts in all civil cases except equity, admiralty, and maritime cases.³³ A constitutional guarantee of a civil jury right therefore appeared as something of an anticlimax, not disturbing an arrangement already agreed to.

The states adopted the Seventh Amendment without meaningful opposition.

What and When Was the Common Law?

The Seventh Amendment invokes the distinction between the common-law courts, on the one hand, and equity and other non-jury courts, on the other. Madison sought to preserve the civil jury only in common-law cases and not in cases that traditionally used non-jury procedures. But the amendment did not define which jurisdiction’s “common law” was meant. As the debates in the Philadelphia Convention and over ratification showed, the states’ use of civil juries were all different from one another. Moreover, legal systems constantly change. What was the baseline time for “the right of trial by jury [that] shall be preserved”? These questions would be left to the courts.

In an 1812 circuit court decision, Justice Joseph Story declared that the reference point for the Seventh Amendment was the English common law.³⁴ However, Story did not specify a time. That baseline time became increasingly important as England curtailed civil jury trials beginning in the nineteenth century and through the twentieth, particularly in an act of 1933.³⁵ Today, England has virtually abolished the institution. In 1935, the U.S. Supreme Court explained that the Seventh Amendment preserves the practice of trial by jury as it existed at common law in England in 1791, the date of the amendment’s ratification.³⁶

Applying the Seventh Amendment

Applying this historical test has been challenging for several reasons. First, determining the civil jury practice of England as of 1791 is difficult. Courts generally lack the capability to perform painstaking research into manuscript sources. Indeed, courts have made significant mistakes by relying entirely on the scanty body of printed material.³⁷ As a result, courts have continued to send highly complicated cases to jury trial despite historical English practice to the contrary.

Legal historian James Oldham has shown that in 1791 England, complicated cases were resolved almost invariably in Chancery, by arbitration, or by special juries.³⁸ A special jury could include a group of jurors with special knowledge of the subject matter of a case, such as a group of experienced merchants deciding a commercial dispute or a group of veteran sea captains deciding a case about marine insurance.³⁹ Special juries were an important feature of English common-law practice in the eighteenth century, although they have virtually disappeared from American practice. In modern times, some antitrust and mass tort cases, which are tried before a jury, are far more complex than any case in eighteenth-century England. Oldham concludes that complex cases may be decided without ordinary juries consistent with the Seventh Amendment’s historical test.⁴⁰

Second, many types of civil cases today did not exist in England in 1791. To accommodate new, mainly statutory causes of action and the explosion of agency adjudication, the Supreme Court created the “public rights” doctrine. The Court has not precisely defined the scope of public rights but has held that in matters arising between the government and others, the jurisdiction of Article III courts, together with jury trial under the Seventh Amendment, is not constitutionally required.⁴¹ SEC v. Jarkesy (2024) held that the Seventh Amendment required the Securities and Exchange Commission to bring civil fraud cases in federal court with a jury instead of adjudicating them before its administrative law judges as it had been doing.⁴² Jarkesy cast doubt on several of the precedents that contributed to the public rights doctrine, although it did not explicitly overrule them. Jarkesy could potentially extend to many agencies and existing agency adjudication.

Third, the civil jury in 1791 comprised a cluster of practices: pleading to issue, jury fees, qualifications and selection of jurors, numbers of jurors, judicial comment on evidence to the jury, unanimity, and confinement of jurors until verdict without food, drink, light, or heat.⁴³ How many of these practices must be reproduced to preserve civil jury trial as it was known in 1791 England? For example, the Seventh Amendment has not been understood to require twelve jurors. Federal courts permit civil juries of fewer than twelve, contrary to the English practice of 1791.⁴⁴ Federal courts severely limit a trial judge’s ability to comment on evidence to the jury, again contrary to the English practice of 1791. These and other changes in jury practice have fundamentally altered the character of the institution.⁴⁵

Fourth, and most profoundly, civil jury trial was and is a procedural element embedded in an entire system of procedure. The institution does not stand on its own as a complete system. Changing the procedural system surrounding the jury can drastically change the incidence of jury trials.⁴⁶ The introduction of elaborate pretrial discovery in the Federal Rules of Civil Procedure of 1938 has eliminated much of the incentive of parties to go to trial.⁴⁷ Before the Rules, parties often had to go to trial to find out what the evidence was. Under the Rules, parties can know the evidence in detail before trial and are generally not inclined to go over it again before an unpredictable jury. The Rules also gave judges a powerful tool with which to avoid jury trial in the form of summary judgment.⁴⁸ Rates of settlement have soared, and rates of civil jury trial have plummeted. In 2022, jury trials occurred in only 0.67 percent of federal civil cases (1,348 jury trials out of 201,329 total dispositions after court action).⁴⁹ Arguably, the Federal Rules of Civil Procedure in effect repealed the Seventh Amendment. But the influence of the jury is still felt in settlement negotiations; outcomes are based partly on the parties’ guesses about what a jury will do.

Open Questions

• The Supreme Court has refused to incorporate the Seventh Amendment against the states while incorporating almost all other provisions of the first eight amendments of the Constitution.⁵⁰ Is this refusal due to ambivalence about the importance of civil jury trial, a concern about disrupting state practice, or a combination of the two? Would similar reasoning apply to the Court’s refusal to incorporate the Grand Jury Clause of the Fifth Amendment? (See Essay No. 168.)
• Are practices that were fundamental to civil jury trials in England in 1791, such as the use of twelve jurors or judicial comment on evidence to the jury, required by the Seventh Amendment? Justice Neil Gorsuch has urged the Court to revisit the precedent which held that criminal juries could have fewer than twelve people.⁵¹
• What will be the fate of the “public rights” doctrine and agency adjudication following SEC v. Jarkesy?

1. John H. Langbein, Renu00e9e Lettow Lerner, & Bruce Smith, History of the Common Law: The Development of Anglo–American Legal Institutions 147–52, 253–57 (2009). ↩︎
2. Id. at 267–99. ↩︎
3. 3 Blackstone 350, 379. ↩︎
4. 3 Blackstone 379. ↩︎
5. Governor Francis Bernard to the Lords of Trade (Aug. 6, 1761), in Josiah Quincy, Samuel Miller Quincy, & Horace Gray, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts 553–55 (1865). ↩︎
6. Id. ↩︎
7. Resolutions of the Stamp Act Congress (1765), in C.A. Weslager, The Stamp Act Congress: With an Exact Copy of the Complete Journal 201–02 (1976). ↩︎
8. Declaration of Independence, ¶ 20. ↩︎
9. Va. Decl. of Rts. of 1776, § 11; N.C. Const. of 1776, Decl. of Rights, art. XIV; PA. Const. of 1776, § 25; N.J. Const. of 1776, art. XXII; S.C. Const. of 1776, arts. XVII & XVIII; Ga. Const. of 1777, art. XL & XLI; MD. Const. of 1776, art. XXI; N.Y. Const. of 1777, art. XLI; S.C. Const. of 1778, art. XLI; Mass. Const. of 1780, art. XV; Renu00e9e Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 3 Wm. & Mary Bill of Rights J. 811, 819–21 (2014). ↩︎
10. Id. at 828–29. ↩︎
11. 2 Farrand’s 587. ↩︎
12. Id. at 587–88. ↩︎
13. Id. at 628. ↩︎
14. Id. at 633 (Gerry), 640 (Mason). ↩︎
15. 3 Elliot’s 302; Matthew P. Harrington, The Economic Origins of the Seventh Amendment, 87 Iowa L. Rev. 145, 170–74 (2001); Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 673–703 (1973). ↩︎
16. 3 Elliot’s 487, 489. ↩︎
17. Storing 2.9.189. ↩︎
18. Renu00e9e Lettow Lerner, The Surprising Views of Montesquieu and Tocqueville About Juries: Juries Empower Judges, 81 La. L. Rev. 1, 24–27 (2020); Harrington, supra at 185–87; Edith Guild Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 298 (1966). ↩︎
19. Henderson, supra at 298. ↩︎
20. Va. Decl. of Rts. of 1776, § 11. ↩︎
21. Storing 3.11.13. ↩︎
22. 3 Elliot’s 658. ↩︎
23. Harrington, supra at 222, 227. ↩︎
24. 1 Annals of Cong. 449 (1789). ↩︎
25. Harrington, supra at 217–22. ↩︎
26. 1 Annals of Cong. 453 (1789). ↩︎
27. Id. at 690–91. ↩︎
28. Id. at 789. ↩︎
29. S. Jour., 1st Cong., 1st Sess. 72 (Sept. 7, 1789). ↩︎
30. Philip Hamburger, The Value of Jury Rights, 93 Geo. Wash. L. Rev. __ (forthcoming 2025). ↩︎
31. S. Jour. 1st Cong., 1st Sess. 77 (Sept. 9, 1789). ↩︎
32. 1 Annals of Cong. 948 (Sept. 24, 1789). ↩︎
33. An Act to Establish the Judicial Courts of the United States, Sess. 1, ch. 20, §§ 9, 12 (Sept. 24, 1789). ↩︎
34. United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447–48 (1830). ↩︎
35. Conor Hanly, The Decline of the Civil Jury in Nineteenth-Century England, 26 J. Legal Hist. 253 (2005); Charles S. Bullock, The Abolition of the Right to Trial by Jury in Civil Cases in England, 63 Am. J. Legal Hist. 281 (2023). ↩︎
36. Dimick v. Schiedt, 293 U.S. 474, 476 (1935). ↩︎
37. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996); James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 5–16 (2006); Tomu00e1s Gu00f3mez-Arostegui & Sean Bottomley, Brief of Amici in Support of Neither Party 14–19, Oil States Energy Servs. v. Greene’s Energy Grp., 584 U.S. 325 (2018) (No. 16-712). ↩︎
38. Oldham, supra at 21–24. ↩︎
39. Id. at 153–64. ↩︎
40. Id. at 17–24. ↩︎
41. Oil States, 584 U.S. 325; Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 449–56 (1977). ↩︎
42. 603 U.S. 109 (2024). ↩︎
43. Langbein et al., supra at 72–75, 419–20, 431–36; 3 Blackstone 375. ↩︎
44. Colgrove v. Battin, 413 U.S. 149 (1973); Federal Rule of Civil Procedure 48(a). ↩︎
45. Renu00e9e Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42 Wm. & Mary L. Rev. 195, 197–99 (2000); Renu00e9e Lettow Lerner, How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury, 40 J. Legal Prof. 215, 219–21 (2016). ↩︎
46. Renu00e9e Lettow Lerner, The Resilience of Substantive Rights and the False Hope of Procedural Rights: The Case of the Second Amendment and the Seventh Amendment, 116 Nw. U. L. Rev. 275, 302–04 (2021). ↩︎
47. John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale L. J. 522, 544–51, 566–69 (2012); Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. Rev. 631, 632, 637–39 (1994). ↩︎
48. Federal Rule of Civil Procedure 56; Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007). ↩︎
49. Table C-4, Federal Judicial Caseload Statistics (Mar. 31, 2022), Administrative Office of the U.S. Courts, https://perma.cc/9424-DQEX. ↩︎
50. Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 217 (1916). ↩︎
51. Cunningham v. Florida, 144 S.Ct. 1287, 1287–88 (2024) (Gorsuch, J., dissenting). ↩︎