POSE OF THE AMENDMENT

Late in the Federal Convention it was moved that a clause be inserted in
article III, section 2 of the draft Constitution to read "* * * and a
trial by jury shall be preserved as usual in civil cases." The proposal
failed when it was pointed out that the make-up and powers of juries
differed greatly in different States and that a uniform provision for
all States was impossible.[1] The objection evidently anticipated that
in cases falling to their jurisdiction on account of the diversity of
citizenship of the parties, the federal courts would conform their
procedure to the laws of the several States.[2] The omission, however,
raised an objection to the Constitution which "was pressed with an
urgency and zeal * * * well-nigh preventing its ratification."[3] Nor
was the agitation assuaged by Hamilton's suggestion in The Federalist
that Congress would have ample power, in establishing the lower federal
courts and in making "exceptions" to the Supreme Court's appellate
jurisdiction, to safeguard jury trial in civil cases according to the
standards of the common law.[4] His argument bore fruit, nevertheless,
in the Seventh Amendment, whereby, in the words of the Court, the right
of trial by jury is preserved as it "existed under the English common
law when the amendment was adopted."[5]

TRIAL BY JURY, ELEMENTS OF, PRESERVED

"Trial by jury," in the sense of Amendment VII, "is 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."[6] A
further requisite is "that there shall be a unanimous verdict of the
twelve jurors in all federal courts where a jury trial is held."[7]
Assuming such a jury, the amendment has for its primary purpose the
preservation of "* * * 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."[8] But the amendment "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.[9]

TO WHAT COUR