Trial of Actions Under the Code

Abstract

One of the greatest obstacles to the full success of the code reform of pleading in this country has been the existence of the constitutional requirement that the right of trial by jury "in all cases in which it has been heretofore used shall remain inviolate forever." It is but natural that this should have had a deterrent effect upon the reform. That reform had for its main objective the abolition of forms and the establishment of a more flexible and direct procedure. Here, however, at the very outset a rigid rule was met, one defined by ancient forms and precedents. Undoubtedly the constitutional provision does introduce an arbitrary limitation into a field where flexibility should be the general objective. It is proposed to show, however, that this absolute requirement need not and should not be interpreted so as to do away with all or even the greater number of benefits of the code reform.