GENERAL COMMENT

1. Scope of Rule.

Rule 1 prescribes in general the nature of the cases to which the rules as a whole are applicable, also lays down the principle of construction to be applied in dealing with them. In this latter connection it is interesting to note that the words "so far as possible," which appeared between "secure" and "the" in the second proposed draft were eliminated from the Rule as finally adopted.

Rule 81, to which reference is made, itemizes various proceedings to which the present set of rules is not applicable and includes certain definitions bearing particularly upon the District of Columbia. Where problems of applicability are involved Rule 81 should be considered in connection with above Rule 1.

It may be stated as a preliminary observation that there may be a disposition in some quarters to concur with Gustavus Ohlinger in his statement that "in many of the rules proposed, the draft fulfills the forecast of the late Senator Walsh, one

New York.

74. Bibliography.

of the vigorous opponents of the act when it was before Congress; namely, that under the guise of making rules the Supreme Court would be urged to enlarge the power and jurisdiction. of district courts, broaden the scope of provisional remedies, and affect substantial rights of person and property." "Questions Raised by the Report of the Advisory Committee," 11 U. of Cincinnati L. Rev. 445, 478. 2. Statutory authorization.

The present set of rules is obviously promulgated pursuant to an act of Congress effective in 1934. The first section of this act is as follows: "The Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant. They shall take effect six months after their promulgation, and there

after all laws in conflict therewith shall be of no further force or effect." U. S. C. Title 28, § 723b.

The second section of the statute is as follows: "The court may at any time unite the general rules prescribed by it for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both: Provided, however, That in such union of rules the right of trial by jury as at common law and declared by the seventh amendment to the Constitution shall be preserved to the parties inviolate. Such united rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session." U. S. C. Title 28, § 723c.

3. History.

4.

- Enabling

act-Activity of American Bar Association. Although the first section of the act just quoted above has only recently become effective, to many members of the bar it bears a look of familiarity in degree usually associated only with long acquaintance. Those who have followed the history of the attempt to reach the point now achieved by the present rules will recognize it as being substantially the measure which was sponsored by the American Bar Association and urged before Congress for over twenty years prior to its adoption as part of the enabling act. See 38 A. B. A. Rep. 541.

A somewhat detailed history of the development of the proposal to simplify procedure through rules of court may be found in 55 A. B. A. Rep. 537 et seq. As early as 1909, a committee of the American Bar Association recommended such action. In 1910 William Howard Taft, then President of the United States and who later took an active part in

furthering the antecedents of the statute finally enacted in 1934, said in a message to Congress: "One great crying need in the United States is cheapening the cost of litigation by simplifying judicial procedure and expediting final judgment.. The necessity for re

form exists both in the United States courts and in all state courts. In order to bring it about, however, it naturally falls to the general government by its example to furnish a model to all states. I am strongly convinced that the best method of improving judicial procedure at law is to empower the Supreme Court to do it through the medium of the rules of the court, as in equity. This is the way in which it has been done in England, and thoroughly done. The simplicity and expedition of procedure in the English courts to-day make a model for the reform of other systems.

I cannot conceive any higher duty that the Supreme Court could perform than in leading the way to a simplification of procedure in the United States courts."

In 1912 the American Bar Association adopted a resolution to the effect that a complete uniform system of law pleading should prevail in federal and state courts; that a system for use in the federal courts and as a model for state courts should be prepared and put into effect by the Supreme Court of the United States; and that all conflicting statutes should be repealed and legislation appropriate to the end desired be enacted. While the "model code" idea does not appear to have been pressed, in 1914 a bill authorizing the Supreme Court to regulate by rule the forms for the entire pleading, practice and procedure to be used in all actions, motions and proceedings at law was introduced, and the House Judiciary Committee, after hearings at which William

Howard Taft, Elihu Root, Alton B. Parker, Thomas W. Shelton and James D. Andrews spoke for it, unanimously reported it. From time to time thereafter essentially similar bills were presented in Congress. Among others who gave service on the Uniform Judicial Procedure Committee in charge of this proposed legislation are listed William H. Taft, William B. Hornblower, Roscoe Pound, Louis D. Brandeis, Jacob Dickinson, Frederick W. Lehmann, Thomas W. Shelton, Frank Irvine, Samuel Williston, Charles B. Letton, Joseph N. Teal, Lawrence Maxwell, Forney Johnston, Walter S. Foster, Edwin Smith, C. A. Severance, Jesse A. Miller, Robert Lamar, Charles A. Butler and John P. Briscoe.

5.

- Taft's statements.

The second section of the statute had its inception in opinions expressed by Chief Justice Taft, urging that power be conferred to deal with both law and equity.

In an address before the Chicago Bar Association, December 27, 1921, the Chief Justice said: "The second step that should be taken is a simplification of the procedure in all cases in the federal trial courts. We still retain in those courts the distinction between suits at law, suits in equity and suits in admiralty. The Constitution refers specifically to them, and in deference to that separation in the Constitution, the distinction is preserved in the federal practice. It seems to me that there is no reason why this distinction, so far as actual practice is concerned, should not be wholly abolished, and what are now suits in law, in equity and in admiralty, should not be conducted in the form of one civil action, just as is done in the code states. Of course it will be necessary in such a system to preserve the substantial differences in procedure and right which are insured by the Constitution and

are of the utmost value in the administration of justice." 8 A. B. A. Jour. 34, 35.

In an address before the American Bar Association on August 10, 1922, Chief Justice Taft further said: "A perfectly possible and important improvement in the practice in the federal courts ought to have been made long ago. It is the abolition of two separate courts, one of equity and one of law, in the consideration of civil cases. It has been preserved in the federal court, doubtless out of respect for the phrase 'cases in law and equity' used in the description of the judicial power granted to the federal government in the Constitution of the United States. Many state courts years ago abolished the distinction and properly brought all litigation in their courts into one form of civil action. No right of a litigant to a trial by jury on any issue upon which he was entitled to the right of trial by jury at common law need be abolished by the change. This is shown by the every-day practice in any state court that has a code of civil procedure. The same thing is true with reference to the many forms of equitable relief which were introduced by the Chancellor to avoid the inelasticity, the rigidity, inadequacy and injustice of commonlaw rules and remedies. The intervention of a proceeding in equity to stay proceedings at common law and transfer the issues of a case to a hearing before the chancellor was effective to prevent a jury trial at common law long before our Constitution, and would not be any more so under a procedure in which the two systems of courts were abolished. Already under the federal code, there is a statutory provision which has not yet been much considered by the courts, by which an equitable defense may be pleaded to a suit at law. If we may go so far, it is a little difficult to see why the distinction be

wholly abolished, and the constitutional right of trial by jury retained unaffected. If the separation of equity and law for the purpose of administration is to be abolished in the federal system, and they are to be worked out together in the same tribunal, then a new procedure must be adopted. Who shall frame it? Shall Congress do it or merely authorize it to be done by rules of court? Congress from the beginning of the government has committed to the Supreme Court the duty and power to make the rules in equity, the rules in admiralty, and the rules in bankruptcy. Moreover, this American Bar Association has for some years been pressing upon Congress the delegation of power to the Supreme Court to regulate by rule the procedure in suits at law. There would seem to be no reason why, where the more difficult work of uniting legal and equitable remedies in one procedure is to be done, the Supreme Court, or at least a committee of federal judges, should not be authorized and directed to do it. Of course, the present statutes governing a separate administration of law and equity must be amended or revised by Congress and certain general requirements be declared, but the main task of reconciling the two forms of procedure can be best effected by rules of court." 8 A. B. A. Jour. 601, 604.

the committee should be allowed to lapse. Following this report there being no motion to continue the committee, the chairman announced its lapse. The next year Congress adopted the legislation.

For further discussion of the history of the act, see "Power of the Supreme Court to Make Rules of Appellate Procedure," by Prof. Clark, 49 Harv. L. Rev. 1303, and references there cited; "Character of Rule Making Power Granted U. S. Supreme Court," by Prof. Edson R. Sunderland, 21 A. B. A. Jour. 404. See also the various Reports of the American Bar Association dating from 1912.

1. Pursuant to Section 2 of the Act of June 19, 1934, c. 651, 48 Stat. 1064, the Court will undertake the preparation of a unified system of general rules for cases in equity and actions at law in the District Courts of the United States and in the Supreme Court of the District of Columbia, so as to secure one form of civil action and procedure for both classes of cases, while maintaining inviolate the right of trial by jury in accordance with the Seventh Amendment of the Constitution of the United States and without altering substantive rights.

2. To assist the Court in this undertaking, the Court appoints the