Colgrove v. Battin
413 U.S. 149 (1973)

Annotate this Case

U.S. Supreme Court

Colgrove v. Battin, 413 U.S. 149 (1973)

Colgrove v. Battin

No. 71-1442

Argued January 17, 1973

Decided June 21, 1973

413 U.S. 149




Local federal court rule providing that a jury for the trial of civil cases shall consist of six persons comports with the Seventh Amendment requirement and the coextensive statutory requirement of 28 U.S.C. § 2072 that the right of trial by jury be preserved in suits at common law, and is not inconsistent with Fed.Rule Civ.Proc. 48 that deals only with parties' stipulations regarding jury size. Pp. 413 U. S. 151-164.

456 F.2d 1379, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which POWELL, J., joined, post, p. 413 U. S. 165. MARSHALL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 413 U. S. 166. POWELL, J., filed a dissenting opinion, post, p. 413 U. S. 188.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Local Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of

Page 413 U. S. 150

Montana provides that a jury for the trial of civil cases shall consist of six persons. [Footnote 1] When respondent District Court Judge set this diversity case or trial before a jury of six in compliance with the Rule, petitioner sought mandamus from the Court of Appeals for the Ninth Circuit to direct respondent to impanel a 12-member jury. Petitioner contended that the local Rule (1) violated the Seventh Amendment; [Footnote 2] 2(2) violated the statutory provision, 28 U.S.C. § 2072, that rules "shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment . . . ;" [Footnote 3]

Page 413 U. S. 151

and (3) was rendered invalid by Fed.Rule Civ.Proc. 83 because "inconsistent with" Fed.Rule Civ.Proc. 48 that provides for juries of less than 12 when stipulated by the parties. [Footnote 4] The Court of Appeals found no merit in these contentions, sustained the validity of local Rule 13(d)(1), and denied the writ, 456 F.2d 1379 (1972). We granted certiorari, 409 U.S. 841 (1972). We affirm.


In Williams v. Florida,399 U. S. 78 (1970), the Court sustained the constitutionality of a Florida statute providing for six-member juries in certain criminal cases. The constitutional challenge rejected in that case relied on the guarantees of jury trial secured the accused by Art. III, § 2, cl. 3, of the Constitution and by the Sixth Amendment. [Footnote 5] We expressly reserved, however, the question

Page 413 U. S. 152

whether "additional references to the common law' that occur in the Seventh Amendment might support a different interpretation" with respect to jury trial in civil cases. Id. at 92 n. 30. We conclude that they do not.

The pertinent words of the Seventh Amendment are: "In Suits at common law . . . the right of trial by jury shall be preserved. . . ." [Footnote 6] On its face, this language is not directed to jury characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, "suits at common law." And while it is true that "[w]e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself," [Footnote 7] the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated not by concern for preservation of jury characteristics at common law, but by fear that the civil jury itself would be abolished unless protected in express words. Almost a century and a half ago, this Court recognized that

"[o]ne of the strongest

Page 413 U. S. 153

objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases;"

Parsons v. Bedford, 3 Pet. 433, 28 U. S. 445 (1830). But the omission of a protective clause from the Constitution was not because an effort was not made to include one. On the contrary, a proposal was made to include a provision in the Constitution to guarantee the right of trial by jury in civil cases, but the proposal failed because the States varied widely as to the cases in which civil jury trial was provided, and the proponents of a civil jury guarantee found too difficult the task of fashioning words appropriate to cover the different state practices. [Footnote 8] The

Page 413 U. S. 154

strong pressures for a civil jury provision in the Bill of Rights encountered the same difficulty. Thus, it was agreed that, with no federal practice to draw on and,

Page 413 U. S. 155

since state practices varied so widely, any compromising language would necessarily have to be general. As a result, although the Seventh Amendment achieved the primary goal of jury trial adherents to incorporate an explicit constitutional protection of the right of trial by jury in civil cases, the right was limited in general words to "suits at common law." [Footnote 9] We can only conclude, therefore, that, by referring to the "common law," 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

Page 413 U. S. 156

of trial by jury. [Footnote 10] In short, what was said in Williams with respect to the criminal jury is equally applicable here: constitutional history reveals no intention on the part of the Framers "to equate the constitutional and common law characteristics of the jury." 399 U.S. at 399 U. S. 99.

Consistently with the historical objective of the Seventh Amendment, our decisions have defined the jury right preserved in cases covered by the Amendment, as "the substance of the common law right of trial by jury, as distinguished from mere matters of form or procedure. . . ." Baltimore & Carolina Line, Inc. v. Redman,295 U. S. 654, 295 U. S. 657 (1935). [Footnote 11] The Amendment, therefore, does not "bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791," Galloway v. United States, 319

Page 413 U. S. 157

U.S. 372, 319 U. S. 390 (1943); see also Ex parte Peterson,253 U. S. 300, 253 U. S. 309 (1920); Walker v. New Mexico & S. P. R. Co.,165 U. S. 593, 165 U. S. 596 (1897), and

"[n]ew devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. . . ."

Ex parte Peterson, supra, at 253 U. S. 309-310; Funk v. United States,290 U. S. 371, 290 U. S. 382 (1933).

Our inquiry turns, then, to whether a jury of 12 is of the substance of the common law right of trial by jury. Keeping in mind the purpose of the jury trial in criminal cases to prevent government oppression, Williams, 399 U.S. at 399 U. S. 100, and, in criminal and civil cases, to assure a fair and equitable resolution of factual issues, Gasoline Products Co. v. Champlin Co.,283 U. S. 494, 283 U. S. 498 (1931), the question comes down to whether jury performance is a function of jury size. In Williams, we rejected the notion that "the reliability of the jury as a factfinder . . . [is] a function of its size," 399 U.S. at 399 U. S. 100-101, and nothing has been suggested to lead us to alter that conclusion. Accordingly, we think it cannot be said that 12 members is a substantive aspect of the right of trial by jury.

It is true, of course, that several earlier decisions of this Court have made the statement that "trial by jury" means "a trial by a jury of twelve. . . ." Capital Traction Co. v. Hof,174 U. S. 1, 174 U. S. 13 (1899); see also American Publishing Co. v. Fisher,166 U. S. 464 (1897); Maxwell v. Dow,176 U. S. 581, 176 U. S. 586 (1900). But in each case, the reference to "a jury of twelve" was clearly dictum, and not a decision upon a question presented or litigated. Thus, in Capital Traction Co. v. Hof, supra, the case most often cited, the question presented was whether a civil action brought before a justice of the peace of the District of Columbia was triable by jury,

Page 413 U. S. 158

and that question turned on whether the justice of the peace was a judge empowered to instruct them on the law and advise them on the facts. Insofar as the Hof statement implied that the Seventh Amendment required a jury of 12, it was, at best, an assumption. And even if that assumption had support in common law doctrine, [Footnote 12] our canvass of the relevant constitutional history, like the history canvassed in Williams concerning the criminal jury,

"casts considerable doubt on the easy assumption in our past decisions that, if a given feature existed in a jury at common law . . . , then it was necessarily preserved in the Constitution."

399 U.S. at 399 U. S. 92-93. We cannot, therefore, accord the unsupported dicta of these earlier decisions the authority of decided precedents. [Footnote 13] There remains, however, the question whether a jury of six satisfies the Seventh Amendment guarantee of "trial by jury." We had no difficulty reaching the conclusion in Williams that a jury of six would guarantee an accused the trial by jury secured by Art. III and the Sixth Amendment. Significantly, our determination that there was "no discernible difference between the results reached by the two different-sized juries," 399 U.S. at 399 U. S. 101, drew largely upon the results of studies of the operations of juries of six in civil cases. [Footnote 14] Since then,

Page 413 U. S. 159

much has been written about the six-member jury, but nothing that persuades us to depart from the conclusion reached in Williams. [Footnote 15] Thus, while we express no view

Page 413 U. S. 160

as to whether any number less than six would suffice, [Footnote 16] we conclude that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in. civil cases. [Footnote 17]

Page 413 U. S. 161


The statute, 28 U.S.C. § 2072, authorizes this Court to promulgate the Federal Rules of Civil Procedure but provides that "[s]uch rules . . . shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution." [Footnote 18] Petitioner argues that, in securing trial by jury "as at common law" and also "as declared by the Seventh Amendment," Congress meant to provide a jury having the characteristics of the common law jury even if the Seventh Amendment did not require a jury with those characteristics. As the Court of Appeals observed, "[t]his would indeed be a sweeping limitation." 46 F.2d at 1380. Petitioner would impute to Congress an intention to saddle archaic and presently unworkable common law procedures upon the federal courts, [Footnote 19] and thereby to nullify innovative changes approved by this Court over the years that have now become commonplace and, for

Page 413 U. S. 162

all practical purposes, "essential to the preservation of the right" of trial by jury in our modern society. Ex parte Peterson, 253 U.S. at 253 U. S. 310; Galloway v. United States, 319 U.S. at 319 U. S. 390-391. For to say that Congress chose this means to render our system of civil jury trial immutable as of 1791, or some other date, is to say the Congress meant to deny the judiciary the "flexibility and capacity for growth and adaptation [which] is the peculiar boast and excellence of the common law." Hurtado v. California,110 U. S. 516, 110 U. S. 530 (1884); Funk v. United States, 290 U.S. at 290 U. S. 382.

But petitioner's extravagant contention has not the slightest support in the legislative history of the provision. Section 2072 is derived from the Enabling Act of 1934, 48 Stat. 1064. [Footnote 20] Section 2 of that Act gave this Court the

"power to unite the general rules prescribed . . . for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both."

H.R.Rep. No. 1829, 73d Cong., 2d Sess., 1 (1934). As emphasized by the Court of Appeals, the language of § 2 preserving the right of trial by jury was included "to assure that with such union [of law and equity] the right of trial by jury would be neither expanded nor contracted." 456 F.2d at 1381, citing 5 J. Moore, Federal Practice

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