dissenting:
When a judge who is presiding over a civil jury trial dies before a verdict is returned, the question whether to proceed with the trial rests in the sound discretion of the judge to whom the case is reassigned. This principle, as we shall explain in Part II, is firmly grounded on Federal Rule of Civil Procedure 83, which states in part: “In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.” As a necessary predicate for invoking rule 83, we will show in Part I that rule 63, on which Ford Motor Credit Co. relies, did not require the declaration of a mistrial.
I
Although there are decisions dealing with substitution of judges in criminal trials and civil non-jury trials, no case precisely on point has been called to our attention. Because a judge is not called upon to make findings of fact or resolve credibility disputes in a jury trial, precedent prohibiting substitutions in non-jury trials does not answer the question presented by this case.1
No statute or rule expressly confers or denies authority to substitute a judge during the trial of a civil jury case. Rule 63 does not forbid substitution before a civil jury has returned a verdict. It provides:
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
The genesis of the rule establishes that it was not promulgated to bar substitution of a judge before a civil jury returned its verdict. Section 953 of the Revised Statutes,2 enacted in 1872, provided for the authentication of a bill of exceptions by the judge of the court in which the cause was tried. This provision was interpreted in Malony v. Adsit, 175 U.S. 281, 285, 20 S.Ct. 115, 117, 44 L.Ed. 163 (1899), to mean “that no bill of exceptions can be deemed sufficiently authenticated unless signed by the judge who sat at the trial.” In 1900, Congress, reacting to Malony, enacted a statute which allowed another judge to rule on a motion for a new trial or an application for allowance of a bill of exceptions in ease of the death of the judge who had presided at the trial.3 See St. Louis Southwestern Ry. v. Henwood, 157 F.2d 337, 342 (8th Cir. 1946); 11 Wright & Miller, Federal Practice and Procedure § 2921.
Rule 63 superseded the statute that was enacted in 1900 and extended it to include all of the duties performed by the judge *281after verdict or judgment.4 With regard to these duties, the rule makes no distinction between jury and bench trials. It is simplistic to conclude from this identity of treatment, however, that bench and jury trials, which in many respects are quite different, must be treated the same at a stage of the proceedings on which the rule is silent.
Thus, rule 63, the statute from which it was adapted, and decisions dealing with bench trials, do not require the declaration of a mistrial when the presiding judge dies before the jury returns its verdict. Indeed Ford has been unable to cite any authority expressly requiring a mistrial. Such a requirement can only be created by implication, and we decline to expand the scope of rule 63 to reach this unwarranted result.
In the absence of any statute, rule, or federal decision foreclosing the substitution of judges in a civil jury trial, primary support for Ford’s position necessarily has been predicated on extracts from the private papers of members of the Advisory Committee on Rules. Several facts caution against reliance on these papers. First, they are not a part of the published Notes of the Advisory Committee on Rules, which the committee deemed appropriate for understanding the derivation and interpretation of the rules.
Additionally, the committee’s discussions in 1953 occurred years after rule 63 was adopted. Reliance on these discussions ignores the Supreme Court’s admonition in Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13, 100 S.Ct. 2051, 2061, 64 L.Ed.2d 766 (1980):
The less formal types of subsequent legislative history provide an extremely hazardous basis for inferring the meaning of a congressional enactment . .. [Ejven when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.5
Indeed, this admonition is particularly appropriate with respect to the Civil Rules, because many years ago the Judicial Conference deemed that the official text of the committee’s working papers should not be made accessible for the purpose of litigation.6
The danger of relying on the working papers to authoritatively interpret the rules is illustrated by this case. The discussions and letters that are quoted to support Ford’s position did not deal with the present issue. They dealt solely with bench trials and the death of a judge before he filed his findings of fact. It is not surprising that the committee members limited their discussion, for they were responding to inquiries about substitution in non-jury trials. For example, the only case identified by name in the extracts is Ten-O-Win Amusement Co. v. Casino Theatre, 2 F.R.D. 242 (N.D.Cal.1942), which was a bench trial. The committee recognized that substitution in a bench trial would require the second judge to decide the facts partially on the basis of a written transcript and partially on the basis of hearing — in the words of a committee member — “flesh-and-blood witnesses.” The problems perceived by the committee do not arise, however, when a judge presiding over a jury trial dies, because the jury, not the judge, finds the facts and assesses the credibility of the witnesses.7
*282The primary sources for interpretation of the rules are rightfully limited to the text itself, published Notes of the Advisory Committee, decisions of the courts, and published commentaries. We do not suggest that it was improper to advert to the private papers that members of the Rules Committee have donated to libraries. They are undoubtedly of great interest to scholars of the federal judicial system. Nevertheless, the record of the committee’s discussion about a rule long after its promulgation is subject to the general principle that subsequent legislative history is a poor guide for interpretation. Moreover, it is evident from the restrictions placed on the use of the official text of the working papers that the extracts cited to support Ford’s position were never intended to be authoritative guides for the interpretation of the rules. That function was reserved for the published Notes of the Committee on Rules.
II
Because neither rule 63 nor any other rule expressly grants or denies a district court the authority to proceed with a pending jury trial when the presiding judge dies, it is necessary to determine what provision the rules make for such a hiatus. The answer, of course, is found in rule 83, which, as we have previously mentioned, states in part: “In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.” This provision of rule 83 “closes all gaps in the rules.”8
In the absence of any provision governing the procedure that should be followed when a presiding judge dies before a civil jury returns its verdict, there exists a gap in the rules. We believe this gap must be filled by conforming to the mandate of rule 83 and committing the decision whether to proceed with the case to the sound discretion of the district court. When, as here, a district court has exercised the discretion vested in it by rule 83, an appellate tribunal should not interfere “in the absence of a showing of arbitrariness or fundamental unfairness.” In re United Corporation, 283 F.2d 593, 596 (3d Cir. 1960).
We find support for this conclusion in Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973), where the Court declined to find in rule 48 an implied requirement for juries of twelve.9 Referring to the generally accepted assumption that “trial by jury means ‘a jury of twelve,’ ” the Court said: “Plainly the assumption of the draftsmen that such was the case cannot be transmuted into an implied direction to impanel juries of 12 without regard to' whether a jury of 12 was required by the Seventh Amendment.” 413 U.S. at 163, 93 S.Ct. at 2456. The Court therefore found no inconsistency with a local rule adopted pursuant to rule 83 providing for juries of six persons. We, too, refuse to search for implications in order to invalidate the exercise of a district court’s discretion under rule 83.
Application of rule 83 in this case conforms to the fundamental precept that although individual judges may die or become incapacitated, the court on which they served is a continuing institution. This was the approach taken in St. Louis Southwestern Ry. v. Henwood, 157 F.2d 337, 342 (8th Cir. 1946). There the issue arose in a bankruptcy proceeding where, as here, no rule expressly governed the question of substitution. For this reason, the court’s reasoning is instructive:
*283Theoretically and actually, a “Court” is a continuing and continuous institution .... Normally, matters therein flow uninterruptedly onward to finality. A change in personnel of judges during the course of litigation presents a problem of interruption. Such changes have occurred at different stages of suits and with varying results as to whether the successor judge could go forward or should retrace some of the ground trav-elled by his predecessor.
An examination of the reasoning underlying the opinions and producing their results is convincing that the flow of a suit is interrupted by changes in personnel of judges only where justice — for which courts exist — seems so to require. Unless justice demands something else, a different judge takes up litigation where the former judge left off. Where this is not done, it is, broadly, because of something'in the past course of the litigation which cannot be found in the status and record existing when the new judge takes hold and which it is necessary for him, in all fairness to the parties, to know. Where it is necessary for him to gain this absent information, he must set back the litigation to the place where he can obtain it.
How and by whom is the existence of such necessity to be determined? In some instances, the law speaks through some affirmative legal requirement: Malony v. Adsit, 175 U.S. 281 [20 S.Ct. 115, 44 L.Ed. 163] (1899). In other instances, the successor judge has power, through the exercise of a re viewable judicial discretion, to determine on the situation in which he finds himself.
Recognition that a court is a continuing institution places the question of substitution in its proper light. Accepting this premise, the propriety of substitution in a jury case is committed to the discretion of the district judge as an aspect of the court’s general authority pertaining to mistrials. In many instances, discretion should dictate a mistrial. In other cases, where the jury, the court, and the parties have invested substantial time and money in the trial and substitution can be made without prejudice, we perceive no sound reason for denying a judge the discretion to proceed with the trial after the death of his predecessor to whom the case had been initially assigned.
Rule 63 recognizes that a court is a continuing institution. It was drafted to confer broad discretion on a judge who succeeds an incapacitated colleague. By its terms, the rule empowers the successor to perform the duties authorized by the civil rules after a verdict is returned or findings and conclusions are filed. These duties are not simply ministerial. Included among them are the power to grant or deny new trials, judgments notwithstanding the verdict, relief after judgment, stays pending appeal, and the authority to settle differences about the accuracy of the record. These duties are in many ways as demanding as the duties of a presiding judge before verdict. Nevertheless, Ford has advanced no principled reason why a court should be allowed to perform such important functions after verdict and yet be granted only the power to declare a mistrial before verdict. It is not enough to claim that the draftsmen of the rules assumed that a mistrial must be declared when the presiding judge dies before a verdict is returned. As Colgrove v. Battin, 413 U.S. 149, 163, 93 S.Ct. 2448, 2456, 37 L.Ed.2d 522 (1973), teaches, assumptions of the draftsmen “cannot be transmuted” into implied restrictions on the discretion granted to a court by rule 83 in the absence of authority compelling the assumption. Ford cites no such authority-
In concluding that a district court should be permitted to exercise its discretion when the need for substitution arises, we are also influenced by the 1966 amendment to Federal Rule of Criminal Procedure 25. Subsection (a)10 was added to provide:
If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed *284with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.
There are neither logical nor pragmatic reasons for allowing a criminal jury trial, involving the liberty and reputation of a person, to go forward after the death of the trial judge while a civil jury trial, involving lesser stakes, must inevitably grind to a halt though neither party would be prejudiced by substitution.
We cannot accept the suggestion that the lack of a civil rule similar to criminal rule 25(a) establishes that a judge in a civil jury ease lacks the authority to proceed that he has in a criminal case. Such an argument, though superficially appealing, overlooks the broad discretion that a judge has always exercised over mistrials in civil cases. The argument also ignores the different circumstances prompting the revision of rule 25 without a corresponding revision of rule 63. The revisers of rule 25 were confronted by an increasing number of protracted criminal cases11 and a decision, Freeman v. United States, 227 F. 732 (2d Cir. 1915), holding that a criminal defendant was constitutionally entitled to the declaration of a mistrial upon the death of the presiding judge.12 In contrast, no federal case has been cited that requires a mistrial in civil jury trials when a judge dies before return of a verdict. It is therefore understandable that rule 63 was not amended along with rule 25.
In sum, we recognize that a district court has broad discretion to grant or deny mistrials in civil cases. This general rule applies to diverse circumstances.13 No statute, rule, or controlling case law expressly prohibits the court from exercising the discretion to deny a mistrial when a judge presiding over a civil jury trial dies before the return of a verdict. We decline to engraft on the civil rules an implied prohibition of this nature, because such an implication lacks an authoritative basis, and it would be contrary to the discretionary authority which rule 83 grants to district courts.
III
Deciding whether Judge Murray properly exercised his discretion by proceeding with the trial need not long detain us. The case was initially assigned to Judge C. Stanley Blair, who ruled on a number of pre-trial motions, empanelled the jury, and presided over the first three weeks of trial. After his death, Ford moved for a mistrial. Judge Murray, to whom the case had been reassigned, denied the motion, setting forth his reasons in a carefully considered opinion. Working diligently, Judge Murray was able to review, before the case was submitted to the jury, the entire pre-trial record and the transcript of the prior proceedings.
Ford has not shown that it was prejudiced by the substitution of Judge Murray for Judge Blair. The record discloses that Judge Murray conducted the trial with full knowledge of the proceedings and without prejudice to either party. He properly utilized the services of the jury, conserved expenses to the parties and the government, and promoted the efficient administration of a busy court. He did not abuse his discretion by refusing to declare a mistrial.
IV
Having determined that no statute, rule, or decision barred Judge Murray’s resumption of the trial, we turn to Ford’s claim that refusal to declare a mistrial infringed its seventh amendment rights. Ford bases its constitutional argument on the well rec*285ognized principle that the right of trial by jury secured by the seventh amendment means trial by a jury under the superintendence of a judge. Relying primarily on criminal cases that antedate the 1966 amendment to Rule 25,14 Ford contends that proceeding after the death of a trial judge by substituting another judge “contravenes the seventh amendment.”
We accept, of course, the proposition that trial by jury means a jury under the superintendence of a judge. See Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899). But we cannot accept Ford’s argument that the seventh amendment requires a mistrial when the judge dies before the jury returns a verdict. The pertinent provision of the seventh amendment is: “In suits at common law ... the right of trial by jury shall be preserved .... ” In Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973), the Court held that this provision of the amendment did not require a jury of 12 persons. In reaching this conclusion the Court said, 413 U.S. at 156-57, 93 S.Ct. at 2451-52:
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 .... ” 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,” 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 .... ” [citations omitted]
Applying these principles, we conclude that the seventh amendment does not require that the proceedings must be conducted by the same judge. Resumption of a trial after the death of a judge does not trespass on “the substance of the common-law right of trial by jury.” It raises a procedural question whose resolution may vary from case to case. Tested by these principles, substitution is not forbidden by the seventh amendment.
Because the district court’s order denying a mistrial should be affirmed, we dissent.
. State cases provide inappropriate precedent, for the Federal Rules of Civil Procedure were adopted to end conformity with state procedures. See 12 Wright & Miller, Federal Practice and Procedure § 3155. Similarly, Coleshill v. Manchester Corp., [1928] 1 K.B. 776, 786 (C.A.), cited to support Ford’s position, furnishes uncertain precedent. In Coleshill, pursuant to a request by the parties, a substitute judge resumed a jury trial following the death of his predecessor. Notwithstanding the parties’ consent, Justice Scrutton expressed doubt about the substitute judge’s jurisdiction. The Court of Appeals, nevertheless, reviewed the case on its merits, and the opinions of the other two justices did not question the trial court’s jurisdiction.
. Act of June 1, 1872, ch. 255, § 4, 17 Stat. 197.
. Act of June 5, 1900, ch. 717, § 1, 31 Stat. 270 (codified at 28 U.S.C. former § 776).
. “This rule [63] adapts and extends the provisions of U.S.C.A., Title 28, former § 776 (Bill of exceptions; authentication; signing of by judge) to include all duties to be performed by the judge after verdict or judgment. The statute is therefore superseded.” Notes of Advisory Committee on Rules.
. As we have previously noted, a reasonable interpretation of rule 63 gleaned from its plain language and the legislative history prior to its adoption shows that the rule was intended to address only the authority of a judge after verdict or filing of findings of fact and conclusions of law.
. Letter from the Chief Justice to Judge Francis D. Murnaghan, Jr. (Dec. 18, 1981).
. We have no way of knowing how the discussion would have gone if the committee had been asked to address the issue raised by this case. Perhaps they, too, would perceive that rule 63 does not deal with the subject. Rather *282than expand the rule by implication, they might have come to the conclusion, as we have in Part II, that rule 83 “fills the gap” and commits the question of substitution when a jury is the fact finder to the sound discretion of the trial judge. But this supposition, just as reliance on the committee’s discussion of nonjury cases to conjecture what they would have said about jury cases, lies in the realm of speculation.
. 12 Wright & Miller, Federal Practice and Procedure § 3155 (1973), (quoting Edgar Tolman, Proceedings, Washington Institute on the Federal Rules, 129 (1938)).
. Rule 48 provides in part: “The parties may stipulate that the jury shall consist of any number less than twelve .... ” In Colgrove the parties refused to stipulate.
. Subsection (b) is similar to Fed.R.Civ.P. 63.
. See Notes of Advisory Committee on Rules, 1966 amendment to rule 25.
. Notwithstanding Freeman, the amendment to rule 25 suggests that substitution of a judge is not prohibited by the Constitution. We agree and set forth our reasons in part IV.
. See, e.g., Standard Industries, Inc. v. Mobil Oil Corp., 475 F.2d 220, 228-29 (10th Cir. 1973); Burger Chef Systems, Inc. v. Govro, 407 F.2d 921, 933 (8th Cir. 1969); Traders and General Insurance Co. v. Mallitz, 315 F.2d 171, 173-74 (5th Cir. 1963).
. See, e.g., Simons v. United States, 119 F.2d 539 (9th Cir. 1941); Freeman v. United States, 227 F. 732 (2d Cir. 1915).