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 reexamined in any Court of the United States, than according to the rules of the common law.
The Seventh Amendment deals with the use of juries in settling civil disputes. In a criminal case, the government seeks to punish a person who has broken a law. Article III of the Constitution and the Fifth Amendment both guarantee the right to a jury in criminal trials (see Introduction and chapter five).
Civil trials, by contrast, compensate (award payment to) a person who has been physically or financially hurt by another person. The party bringing suit (legal action) is known as the plaintiff. If the plaintiff can show that the defendant caused the injury, he or she can ask the court to force the defendant to pay money or perform certain actions. This request for payment or action is known as a claim.
Not all trials involve a jury. The outcome of some trials is determined by the judge presiding over the case. However, the Seventh Amendment states that federal civil cases (those heard in federal courts) involving claims of more than twenty dollars are to be tried by a jury.
The second clause (section) of the amendment states that no fact decided by a jury can be changed by another court. This clause was intended to keep judges from overruling a jury’s decision.
Origins of the Seventh Amendment
Since English settlers first came to North America, juries have been an important part of American legal tradition. A jury is a panel of citizens brought together to hear evidence and then decide the facts, that is, what happened, in a legal case. Because juries allow ordinary citizens to play an important role in the legal system, they have long been viewed as a valuable protection against the abuse of government power.
When the British government limited colonists’ right to a jury trial, the colonists protested angrily. During the American Revolutionary War (1775–81), the colonies won their independence from Great Britain. Colonists repeatedly listed the right to a trial by jury among the basic rights for which they were fighting.
After the war, the states nearly rejected the proposed Constitution of the United States, partly because it failed to guarantee the right to a jury in civil trials. The states only ratified the Constitution when it was agreed a Bill of Rights would be attached.
The Seventh Amendment was part of the Bill of Rights, or first ten amendments, that became part of the Constitution in 1791. The amendment guaranteed the right to a jury trial in most civil lawsuits in federal court.
A history of limitations
Despite the importance of juries, the Supreme Court has repeatedly limited the Seventh Amendment’s reach in civil jury trials over the years. In fact, the Court has ruled that the amendment does not apply to a number of types of civil suits, including the following:
- Cases against the government. A person suing the government is not entitled to a trial by jury unless Congress specifically passes a law requiring such a trial.
- Public rights cases. Cases involving new rights created by Congress (public rights) may be decided in special courts and without a jury.
- Maritime cases. Cases involving navigation or commerce at sea are traditionally heard in separate courts and decided by judges not juries.
- Equitable cases. If a plaintiff seeks a court order to force a person to perform certain actions (or to stop performing others) it is known as an equitable claim. The Supreme Court has ruled that since such cases do not involve money, they are not covered by the Seventh Amendment and may be decided without a jury.
English Roots of the American Jury
Many of the legal practices in Britain’s North American colonies came directly from English common law (legal tradition). Juries, in one form or another, existed in England before the first British colonists came to America at the beginning of the seventeenth century. Even then, however, juries were a relatively new feature of English law.
“Trial by ordeal”
Superstition and fate played a large role in deciding criminal trials in England before the twelfth century. Prior to the 1100s, one method of settling a criminal case was the trial by ordeal. In those trials, defendants (people accused of a crime) were forced to undergo potentially life-ending ordeals to decide their fates. Such ordeals included walking across red-hot metal or being thrown in a river with hands and feet bound up. The fear of bodily harm sometimes led defendants to confess before the torture began (whether they were actually guilty or not). If a person did choose to undergo the ordeal, people believed God would injure the guilty and protect the innocent.
Trial by battle
Another form of trial that relied on supernatural intervention was the trial by battle. Civil disputes were settled by armed combat between the opposing sides in a case. Whichever party won the fight was believed to have been favored by God and was declared the winner of the dispute.
William I introduces changes
In 1066, William, Duke of Normandy (c. 1027–1087), invaded England and defeated King Harold. William I’s new government introduced England to many elements of French Norman culture. In the years after this invasion, called the Norman Conquest, a new kind of trial took shape in England. Groups of people not involved in a civil dispute were asked to decide the outcome of the case. These early juries consisted of twelve men from the community who already had knowledge of the case.
These jurors, or oath helpers as they were called, were not quite like modern jurors. In modern times, a juror is expected not to know the facts of a case until the trial begins. The early jurors were more like witnesses. They told the court what they already knew about the dispute. Nonetheless, these early juries were an important step away from the questionable case deciding methods that had been used before.
Jury trials quickly became popular in England. By the late 1100s, a defendant in royal court was entitled to request a jury trial, and “put himself upon his country.” In 1215, the Magna Carta (an agreement between England’s wealthy landowners and King John (1167–1216) specifically stated that “judgment by one’s peers (equals)” should decide questions of law. By 1219, the trial by ordeal was completely abolished in England.
Jury trials become a right
In the fourteenth century, the role of juries changed fundamentally. Jurors no longer functioned as witnesses. Instead, they heard evidence that was presented to them. As juries became known as impartial bodies that decided what the facts were in a case, public confidence in the jury system grew. In 1689, the English Bill of Rights made the jury trial a right. The right to trial by jury was held dearly by the English people. The English commentator and lawyer Sir William Blackstone wrote in the 1760s that the civil jury trial was “the glory of the English law.”
Juries in Colonial America
British colonies in North America took steps to ensure the right to trial by jury in civil cases. Most of the original thirteen colonies established the right as part of their charters (their original body of laws). Also, all thirteen colonies relied on twelve-member juries to decide facts in civil cases.
Trial by jury was particularly important in the colonies. It allowed colonists to decide the outcome of their cases, rather than relying on judges paid by the far off British government. Although the royal judges who presided over the jury trials were appointed by the British government, the judges and the juries came from local communities.
Britain tightens its grip
By the middle of the 1700s, tension had grown between Great Britain and the American colonies. The British government sought new ways to raise funds and to save money in the colonies (see chapter three). Many of the tactics the British tried angered colonists and sparked public protests. For instance, the British government’s policy of quartering (housing) soldiers in public buildings and private homes led to protests and even rioting (see chapter three). Similarly, attempts to impose duties (fees) and taxes on goods the colonists imported caused trouble.
As American protests grew, the British began to exercise more control over the colonies. They stationed more soldiers in trouble spots, such as Boston. (During the Boston Tea Party (1773) protesters had dumped tons of English tea into the bay rather than pay a duty on it.)
The British also took steps to keep local juries from finding in favor of protesters charged with crimes. The government took away the absolute right to trial by jury. For some crimes, colonists were shipped off to England without any guarantee of a fast or fair trial (see chapter six).
British authorities also reorganized the civil courts. Admiralty courts traditionally had the power to deal with maritime law (legal matters involving ships at sea). These cases were decided by a single judge rather than by a jury. Beginning in the 1760s, the British transferred control of many civil cases to these maritime courts. With this change, judges appointed by the British government could decide cases that juries would have previously heard.
Juries and revolution
The declaration of rights.
The maritime courts were effective in limiting the control that colonists had over the legal process. The changes also increased the colonists’ resentment of British rule. The 1774 Declaration of Rights outlined the rights to which colonists felt they were entitled from the British government. One of the central rights the colonies insisted on was the right to trial by jury. “The respective colonies are entitled to the common law of England,” the document read. “And more especially to the great and inestimable privilege of being tried by their peers of the vicinage [area], according to course of that law.”
The colonists claimed that the right was promised by the “common law of England.” It is interesting that it was the colonists’ desire to be treated like English citizens that led to the break between England and the colonies.
The declaration of independence.
The Declaration of Rights did little to change relations between Great Britain and the colonies. In 1775, war broke out between American soldiers and the British Army. On July 4, 1776, after more than a year of fighting, the colonies drafted a formal Declaration of Independence, asserting that the colonies were separate from Great Britain. Among the reasons the Declaration of Independence listed for the split with Great Britain was the fact that the British government had deprived colonists “in many cases, of the benefits of Trial by Jury.”
Restoring the Civil Jury
After the colonies declared their independence, all thirteen of the former colonies, now states, restored the right to trial by jury. Ten states specifically mentioned the right to a civil jury trial in their constitutions. The other three—Delaware, South Carolina, and Connecticut —either passed laws or simply implemented juries in common practice.
The importance the right held for the states is seen in the language each used to establish it. New York ensured that trial by jury “shall be established and remain inviolate (unbroken) forever.” New Jersey’s constitution also guaranteed that the right would stand “forever.” Massachusetts and New Hampshire’s constitutions declared that the right “shall be held sacred.”
Juries, the new Constitution, and a Bill of Rights
Even as the states established their own constitutions, the larger question of how to form a single nation from the various states was still unanswered. In 1781, the states formed a loose union under the Articles of Confederation. However, the government formed by the Articles had very little power.
By 1786, many people called for the formation of a stronger national government. During the Constitutional Convention held in Philadelphia, Pennsylvania, from May 23 to September 17, 1787, representatives from twelve of the states met to design a constitution for a new federal government.
Surprisingly, though the civil jury had been extremely important at the state level, the representatives to the convention did not include any mention of the right in the proposed U.S. Constitution. In fact, the new Constitution lacked any list of individual rights. Public outcry over this oversight led to an agreement between backers of the new Constitution (the Federalists) and those who opposed it (Anti-Federalists). It was agreed that a Bill of Rights would be added as soon as the states ratified the Constitution.
The right to civil jury trials was especially important to citizens who feared the power the new national government would have over them. Six of the states that ratified the new Constitution specifically called for an amendment ensuring civil jury trials.
James Madison (1751–1836), a Virginia lawyer who later became the fourth president of the United States, wrote the first draft of the Bill of Rights in 1789. His first draft of the Seventh Amendment read: “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 (unbreakable).” Over the next three months, Congress (the law-making body of the federal government) changed the amendment’s wording. The revised version read: “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 reexamined in any Court of the United States, than according to the rules of the common law.”
In addition to guaranteeing jury trials in cases where claims exceeded twenty dollars, the new amendment also limited a judge’s power to overrule (change) a jury’s decision. The Seventh Amendment was ratified with the rest of the Bill of Rights amendments on December 15, 1791. Virginia was the eleventh and final state (of the fourteen states then in existence) to ratify the amendments (see Introduction).
The Courts Interpret the Law
Under the U.S. Constitution, the Supreme Court of the United States is the highest court in the nation. The Court has the final power to decide how courts and other government bodies interpret laws. However, since the Supreme Court can overrule (change) its own decisions, interpretation of a particular law may change over time.
Deciding which cases are entitled to juries
The Seventh Amendment is stated in a fairly straightforward manner, and at first glance would not seem to require much interpretation. In civil cases involving more than twenty dollars, the right of “trial by jury shall be preserved” and “no fact (decided) by a jury, shall be otherwise reexamined in any Court of the United States” except “according to the rules of the common law.” This last phrase—“according to the rules of the common law”—however, raises some important questions: What are “the rules of common law,” and can they limit the right to a jury?
In 1812, a federal circuit court (a lower court that hears cases from a particular region of the United States) issued the first interpretation of the Seventh Amendment. Although the case was not heard by the Supreme Court, the decision in the case of United States v. Wonson had a lasting impact on the way the Seventh Amendment was understood.
The federal government had lost a lawsuit against Samuel Wonson in a jury trial. The government argued that it had the right to retry the facts with a second jury trial in the New England Circuit Court. The government said that since certain states in New England allowed a retrial by a second jury, the common law of New England dictated that the circuit court for that region should allow retrial as well.
District court judge Joseph Story (1779–1845) rejected this argument. After examining the history of the Seventh Amendment, Story said that the “obvious intention” of the clause was to prevent a higher court from retrying or overruling a jury’s decisions. Story also ruled that the phrase common law in the Seventh Amendment did not refer to the statutes and legal history of the states. Story wrote that “beyond all question, the common law here alluded (referred) to is … the common law of England, the grand reservoir of all our jurisprudence (legal tradition).”
After Wonson, courts would determine whether to order a civil jury trial by referring to English common law. Under this “historical test,” if a court determined that a party in a civil case would have been entitled to a jury trial under English common law, then he or she was entitled to one in the United States, too.
The fixed historical test
During the nineteenth century, English courts limited the use of civil jury trials. They reserved juries for special types of civil cases. The United States did not follow these changes in English law. In Thompson v. Utah (1891), the Supreme Court ruled that the historical test courts used to determine whether a case deserved a jury trial must use English common law as it was in 1791, the year the Bill of Rights went into effect. The court ruled that the meaning of the terms jury and trial by jury were attached to the English common law at a fixed time. These terms should always keep “the law as it was in this country and in England at the time” the Bill of Rights were adopted. Though Thompson was a criminal case, the Supreme Court later adopted this “fixed historical test” for establishing civil jury rights.
Not All Cases Are Created Equal
Whether a litigant (party in a lawsuit) is entitled to a jury trial depends on the type of claim involved. Claims against the government are always treated differently than other civil actions. But even cases involving two private (non-government) parties are not always entitled to a jury.
Maritime cases have traditionally been treated differently than other civil cases, even in colonial times. In Parsons v. Bedford (1830), the Supreme Court used the historical test to determine that cases involving maritime law do not guarantee a jury trial, since they had never been heard by juries under English common law.
When a plaintiff seeks money, it is called a legal claim. However, a plaintiff may also ask a court to order the defendant to perform certain actions, or to stop performing others. Such requests are known as equitable claims. It is often difficult to categorize a claim as legal or equitable. Since equitable claims do not involve money, the Supreme Court has ruled that they are not covered by the Seventh Amendment and may be decided without a jury.
However, the distinction between legal and equitable claims is sometimes hard to determine, even for courts. Lawsuits asking for restitution (making good for loss or damage) have been treated as both legal and equitable cases, depending on the court.
Patent cases deal with the ownership of new inventions. In Markman v. Westview Instruments, Inc. (1996), the Supreme Court ruled that many questions raised in a patent case are questions of law. A question of law deals with how the law applies to the particular facts of a case. Juries traditionally only settle questions of fact—that is, they decide what happened in a particular case. A judge decides questions of law, for example, if the facts in the case entitle the plaintiff to compensation. In Markman, the Court found that many patent cases do not involve questions of fact, only questions of law. Such cases, the Court ruled, may be tried without a jury.
Suing the Federal Government
Under English common law, the sovereign (the king or queen, or more generally the government) could do no wrong and was, therefore, immune (protected) from civil lawsuits. But under certain circumstances, the king would permit a party to sue his government. His consent was usually required before such a lawsuit could go forward.
When the federal government of the United States faced lawsuits, the ancient concept of sovereign immunity was revived. The Supreme Court invoked the concept in the early cases of Chisholm v. Georgia (1793) and Cohens v. Virginia (1821). In these cases, the Court held that the federal government was immune from lawsuits unless Congress authorized them. Through the mid-nineteenth century, people who felt that they had been injured by the federal government had to ask Congress, on a case-by-case basis, to pass a special bill that would compensate them for their injuries.
The Court of Claims
In 1855 Congress established the U.S. Court of Claims, the first court in which plaintiffs could directly sue the federal government. In the Court of Claims, a judge, not a jury, ruled on all the facts in a case.
Over the next one hundred years, Congress established other courts for people to bring various suits against the government. However, in almost every case where suits against the government were allowed, Congress dictated that there was no right to a trial by jury. In McElrath v. United States (1880), the Supreme Court ruled that such actions were perfectly legal. Thomas L. McElrath, a former Navy lieutenant, sued the government for back pay, and the case was heard by a judge in the Court of Claims. The judge ruled in favor of the government. McElrath argued that his Seventh Amendment rights had been violated since no jury had heard his case. The Supreme Court rejected this argument, using the concept of sovereign immunity to justify its decision.
The Court reasoned that since people can only sue the government when it allows itself to be sued, the government has the freedom to determine how it will be sued. Therefore, it has the right to decide whether cases against it will be heard by a jury. In other words, the Supreme Court said that suits against the government “are not controlled by the Seventh Amendment.”
In the case of Galloway v. United States (1943), the Court ruled that even when a jury hears a case, a judge still may overrule (set aside) the verdict. Freda Galloway sued the government over benefits she claimed were owed to her husband, a veteran of World War I. The case was heard in a federal district court. The judge ruled against Galloway in a directed verdict. (A directed verdict is one in which the judge, without any input from the jury, throws a case out due to a lack of evidence.)
Galloway appealed the decision to the Supreme Court. She argued that the directed verdict violated her guarantee to a jury trial under the Seventh Amendment. In this case, the Court used the concepts of sovereign immunity, and the “fixed historical test” to deny Galloway’s claim. The Court said no one could argue “that under the common law in 1791 jury trial was a matter of right for persons [suing] the sovereign.”
Government must specify jury trial
In Lehman v. Nakshian (1981), the Court ruled that even when Congress does not prohibit a jury trial, a plaintiff with a case against the government does not have the absolute right for a jury trial. Under the Age Discrimination in Employment Act of 1967 (ADEA), private and government employers are forbidden from discriminating against workers over the age of forty. The law waives the government’s sovereign immunity in such cases and allows government employees to sue the government for age discrimination. However, the law made no mention of whether juries should hear these cases.
When Alice Nakshian sued the U.S. Navy for age discrimination, she argued that the Seventh Amendment guaranteed her a jury trial. But the Supreme Court ruled that in cases against the government, the right to a jury trial only exists if Congress specifically grants it. Since the ADEA did not mention juries one way or the other, the Court ruled that Nakshian was not entitled to a jury trial.
Congressional restrictions and sovereign immunity
Almost every time Congress waived the government’s sovereign immunity, it has required parties who sue the government to give up “any claim to a jury trial.” For instance, in the Claims Act of 1946, Congress passed a bill that allowed citizens to sue the government in the existing district courts, but without a jury.
Even when Congress did allow jury trials against the government, it limited the jury’s power. A 1957 bill allowed for jury trials in certain tax refund cases. But Congress was concerned that juries “might tend to be overly generous,” and limited the amount of money a jury could award a plaintiff.
Thus, the concept of sovereign immunity has allowed Congress to routinely prevent juries from hearing cases against the government. Moreover, the Supreme Court has ruled that the Seventh Amendment simply does not apply to claims against the government.
The idea that civil suits against the government are not covered by the Seventh Amendment guarantee to a jury trial is known as the public rights exception. As the federal government grew in size and in power during the twentieth century, this exception was used to exempt more and more cases from juries hearing them.
A new kind of court
Under the Tariff Act of 1922, Congress gave the president the authority to impose customs (taxes on imported goods) and established a Tariff Commission to determine what those customs should be. The act also created the Court of Customs and Patent Appeals, in part to settle disputes over these new taxes. In Ex Parte Bakelite Corp. (1929), the Supreme Court declared that the new court was a “legislative” court with both judicial and legislative power. Judicial power is the power to decide legal disputes; legislative power is the power to create laws or rules.
The Court ruled that Congress could create new kinds of rights that were not covered by common law traditions. Furthermore, Congress had the right to decide how disputes over these new public rights were tried. In this case, Congress created the president’s right to impose customs. Therefore, it could also decide how customs disputes were handled. Congress could allow such cases to be tried in ordinary courts or in new courts specifically set up for that purpose.
Congress could even establish special boards or agencies to settle disputes without a trial. Furthermore, because common law did not apply to these public rights (since the rights did not exist before 1791), the Seventh Amendment did not apply to them, and Congress was not required to provide for jury trials.
Public rights versus private rights
In Crowell v. Benson (1932), a worker sued his non-government employer for compensation. Under common law, such cases between two private parties were decided by trial juries. However, Congress had previously set up the U.S. Employees Compensation Commission to settle such disputes without juries.
The Supreme Court said that while the dispute involved a private right, Congress had replaced the traditional common law approach with a new federal compensation scheme. Therefore, Congress decided how compensation disputes were settled. The ruling suggested that Congress had the power to create new, jury-less forums for resolving disputes.
In 1970, Congress created the Occupational Safety and Health Review Commission (OSHRC) to rule in cases involving workplace safety complaints. If the commission found that an employer had broken federal safety laws, the employer could appeal the OSHRC decision in federal court. However, a judge would decide the appeal, not a jury.
In Atlas Roofing Co. v. Occupational Safety & Health Review Commission (1977), Atlas Roofing argued that the lack of a jury trial violated the Seventh Amendment. The Supreme Court rejected Atlas’s claim on the grounds that Congress’s authority over public rights extended to new areas. Federal lawmakers could create new statutory public rights (such as the right to a safe workplace) and assign cases concerning those rights to an agency (rather than a court) without violating the Seventh Amendment. The Court said that traditional common law rights could not be written into new statutes and then transferred out of normal courts. It also ruled that a government agency, rather than a court, could only decide cases in which the government was a party.
In Feltner v. Columbia Pictures TV (1998), the Supreme Court determined that C. Elvin Feltner, a local television owner sued for copyright violations by Columbia Pictures, was entitled to a jury trial. The trial judge had denied the local television owner’s jury-trial demands and had awarded damages to Columbia Pictures for copyright infringement. ‘Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement,’ the Court wrote. ‘More importantly, copyright suits for monetary damages were tried in courts of law, and thus before juries.’ Interestingly, Feltner was represented in the Supreme Court by attorney John G. Roberts Jr., who later became Chief Justice of the United States Supreme Court.
Losing the Right to a Jury Trial or Expanding It
Critics of the Supreme Court argue that an American’s right to a civil jury trial has slowly been stripped away, as the Court rules that more and more types of lawsuits are not covered by the Seventh Amendment. Indeed, the number of cases heard without a jury increased dramatically after 1791.
In most cases, the Seventh Amendment was found not to apply under the concept of sovereign immunity. These are cases against the government, which even in early American history, the government could have simply refused to allow.
In fact, since the mid-1800s, a citizen’s power to sue the government has consistently expanded. It’s true that Congress has seldom allowed for jury trials in such cases. But beginning with the establishment of the U.S. Court of Claims in 1855, Congress has made it easier to sue the government, in cases involving traditional rights as well as in a whole new class of public rights cases.
For More Information
Oldham, James. Trial by Jury: The Seventh Amendment and Anglo-American Special Juries. New York: NYU Press, 2006.
Harrington, Matthew P. “The Economic Origins of the Seventh Amendment ” Iowa Law Review (October 2001): 145–233.
Moses, Margaret L. “What The Jury Must Hear: The Supreme Court’s Evolving Seventh Amendment Jurisprudence” George Washington Law Review (February 2000): 183–257.
“The Twenty Dollars Clause.” Harvard Law Review (March 2005): 1665–1686.
Hall, Kermit L., ed. Oxford Companion to the Supreme Court of the United States. 2nd ed. New York: Oxford University Press, 2005.
Hudson, David L., Jr. The Bill of Rights: The First Ten Amendments of the Constitution. Berkeley Heights, NJ: Enslow, 2002.
Lehman, Jeffrey, and Shirelle Phelps, eds. West’s Encyclopedia of American Law. Farmington Hills, MI: Thomson Gale, 2004.
Oldham, James. Trial by Jury: The Seventh Amendment and Anglo-American Juries. New York: New York University Press, 2006.
Grant, Eric. “A Revolutionary View of the Seventh Amendment and the Just Compensation Clause.” Northwestern University Law Review (Fall 1996): 144.
Schwartz, Rachael E. “‘Everything Depends on How You Draw the Lines’: An Alternative Interpretation of the Seventh Amendment.” Seton Hall Constitutional Law Journal (Spring 1996): 599.
Weeden, Jason. “Historically Immune Defendants and the Seventh Amendment.” Texas Law Review (February 1996): 655.