Fundamentals of Procedure in Actions At Law

is important to consider how far the path is-blocked by the provisions in the state and federal constitutions guaranteeing the right to trial by jury.1 Are these provisions a real obstacle in the path of reform! The answer depends on what is meant by trial by jury. Perhaps the most striking phenomenon in the history of our procedural law is the gradual evolution of the institution of trial by jury. The jury as we know it today is very different from the Frankish and Norman inquisition, out of which our modern jury has been slowly evolved throughthe centuries of its "great and strange career."1 It is different from the assizes of Henry II., that great reformer of procedural law. It is different from the trial by jury known to Lord Coke and to the early American colonists who carried -to a new world the principles of English jurisprudence.3 "To suppose," says Edmund Burke, "that juries are something innate in the Constitution of Great Britain, that they have jumped, like Minerva, out of the head of Jove in complete armor is a weak fancy, supported neither hy precedent nor by reason."4 In England there has been a wonderfully steady and constant development of trial by jury from the Conquest to the present day. In this country surely it was not, by the adoption of our constitutions, suddenly congealed in the form in which it happened to exist at the moment of their adoption. The procedure of the first half of the seventeenth century or of the second half of the ei...