Mr. Wheeler has prepared a memorandum showing what this committee and its predecessor, with the same purpose, under a little different name, have done, in the way of remedial legislation, in the years that the committees have been in existence. That memorandum is headed "Statement of Progress," and I read it:

"In 1908 this Association appointed a special committee to suggest remedies and formulate proposed laws to prevent delay and unnecessary cost in litigation.' In 1916 this was made a standing committee, and in 1919 its title was changed to the Committee on Jurisprudence and Law Reform. It has been diligent in the work assigned it and has, with the cooperation of many lawyers who were not members of the committee, among whom I should especially mention ex-President Taft, accomplished the following reforms:

"1. No appeal to the Supreme Court from a final decision in habeas corpus is allowed unless the lower court or a Justice of the Supreme Court certifies that there is probable cause for an appeal. (35 U. S. Stat. 40.)

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2. The committee assisted the Supreme Court in preparing the new rules of equity practice promulgated in 1912. S. S. Gregory, who was then President of the Association, took an active part in this work.

The most important changes in these rules are as follows: "Rule 19. The court, at every stage of the proceeding, must disregard any error or defect in the proceedings, which does not affect the substantial rights of the parties.'

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"Rule 22. If at any time it appears that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alterations in the pleadings as shall be essential.'

"Rule 30.

A counter-claim may be set up in the answer instead of by a cross-bill.'

"3. The law and equity bill approved March 3, 1915, adds three new sections to the Judicial Code-274a, 274b and 274c. The first section enacted Rule 22, just quoted, and extends the same relief to a suitor at law that the rule extends to a suitor in equity. It requires the court to allow suitable amendments to the pleadings to accomplish these results and provides also that testimony taken in the case before the amendment should stand 'with like effect as if the pleadings had been originally in the amended form.'

"The second section also allows the defendant in an action at law to set up an equitable defence without filing a bill on the equity side and gives the appellate court full power to render such judgment upon the record as law and justice shall require.'

"4. The same act requires the court to amend pleadings in any stage of the case where there is a defective averment of citizenship.

"5. The act of December 23, 1914, gives to the Supreme Court the power to review on certiorari the decision of the highest court of a state that a statute was repugnant to the Constitution, treaties or laws of the United States, or in favor of the title or immunity claimed under the authority of the United States by the litigant in the state courts. (38 U. S. Stat. 790.)

"6. The committee had greater difficulty in securing the passage of the act approved February 26, 1919, than in any other of the reforms mentioned. This amends Section 269 of the Judicial Code to read as follows:

"All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. On the hearing of any appeal, certiorari, writ of error or motion for a new trial, in any case civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.'

"The rule thus enacted was that which originally prevailed in America. As early as 1828, in the case of McLanahan vs. Insurance Company, 1 Peters 170-183, Judge Story said: 'If, therefore, upon the whole case, justice has been done between the parties and the verdict is substantially right, no new trial will be granted, although there may have been some mistake committed at the trial.'

"This act has been referred to by the Circuit Court of Appeals in New York Life Ins. Co. vs. Anderson, 263 Fed. 527; Storgard vs. France, Ibid., 545; Grandi vs. United States, 262 Fed. 123, 124; Bain vs. United States, Ibid., 664, 669; West vs. United States, 258 Fed. 413, 415; August vs. United States, 257 Fed. 388-392; Stetson vs. United States, Ibid., 689-693; Shore vs. Splain, 258 Fed. 150-154; Thompson vs. United States, Ibid., 196-201; Sneierson vs. United States, 264 Fed. 268-275.

"It is satisfactory to conclude with the statement that the reform embodied in this act has been adopted either by statute or by rule of court in the following 26 states and territory of the United States:

"Alabama, Alaska, Arizona, California, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Texas, Wisconsin and Wyoming."

I move you, Mr. President, that the report be accepted and adopted.

The motion was carried.

James S. Davenport, of Oklahoma:

I would like to inquire if the report recommends giving concurrent jurisdiction to the federal court?

Thomas J. O'Donnell:

That is in the report, and that was unanimously concurred in by the committee. I wish to add, as to a certain matter in the report, which was a mere matter of comment as to the legal effect of the decision of what is known as the "Muskrat Case," that Mr. Justice Hughes added a statement of his own position upon that subject.

James S. Davenport:

I do not know how the rest of the members feel upon that recommendation conferring the right to try aliens, but from my limited experience I say that we should approach that matter with a great deal of caution. Whenever you start confusing the jurisdiction of the federal court with the jurisdiction of the state court you are treading upon dangerous ground, and I could not as a member of this Association give my assent to a recommendation of such a character. I think it is entirely too dangerous.

I have had the opportunity of seeing the state laws tried out, and I believe that if you have the proper officials-and we usually have in our states, with few exceptions-you can enforce the law of your state in criminal matters just as well as you can enforce the law in any other matter, without invoking the assistance of the federal court. If you were to recommend this you would be taking away from the state the very fundamental principles upon which state rights are based, and you will not be getting any more efficient service than you are if you let the states continue to control their own jurisdictions.

Thomas J. O'Donnell :

The Association had this subject under consideration at Salt Lake City in 1915, and a bill was then pending in Congress, and

that bill had been recommended by this Association and was again recommended to Congress by the Association at that meeting. The bill did not pass, however. A similar bill has been introduced in the present Congress, and the recommendation of this Association now proposed is the same recommendation that was made at Salt Lake City in 1915.

Edward Q. Keasbey, of New Jersey:

I would like to ask Mr. O'Donnell whether the bill relating to declaratory judgment makes any provision for the present or future right of parties. In other words, how can a declaration of the law be made which will bind persons who are not parties to the suit?

Thomas J. O'Donnell:

The State of New Jersey has had for some time the procedure that is here recommended, concerning a declaratory judgment. Our report cites the act passed in New Jersey, among other citations.

Charles Evans Hughes, of New York:

Of course, the suggestion with regard to the authorization of the court to enter a declaratory judgment in no way affects the fundamental principle involved with respect to the presence of parties, and the binding effect of judgments when rendered. It would be a vain thing for Congress to attempt to bind a party by a judgment when that party has had no opportunity to be heard. All that is intended is that when the persons are before the court, who are the parties to the controversy, when all those who have any interest are before the court, in accordance with the normal and familiar practice of bringing parties before the court, the court shall have power to declare the rights of the parties under. an instrument; that is, to declare what the law is with respect to matters of construction, for example, which will bind those who would be bound by any judgment in a case within the categories now familiar where judgments are rendered.

Whatever may be said as to the propriety or desirability of such a change in practice, the point that anybody will be injured in that way cannot be regarded as well taken, as it seems to me.

With respect to the advisability of the practice, there has been a great deal of discussion. The very familiar practice in England, under the rules to which Mr. O'Donnell has referred, is well known to everybody. New Jersey has passed the act, and there have been learned articles in the law reviews with respect to the desirability of the practice. The point is that if parties have controversies as to instrument, and they wish the law with respect to their respective obligations declared, nothing shall stand in the way of the court rendering what may be called a declaratory judgment.

Edward Q. Keasbey:

With that explanation, I am satisfied.

Moorfield Storey, of Massachusetts:

The other point which has been raised by the gentleman from Oklahoma, I do not think is well taken. There is nothing in this Code which is extraordinary. The alien or the citizen of a different state has had the right to remove a litigation in which he is interested into the courts of the United States, in order that he may have a tribunal not influenced by local feeling. His civil rights are now protected. Is there any reason why those more precious rights which affect his liberty should not be given the same protection? The difficulty with the local tribunal in many cases is that the local prejudice prevents the alien from securing justice. The officials charged by the state with the administration of its law are affected oftentimes by local prejudice. They may find that their own offices will be vacated if they do not yield to it. Therefore, it is right that the same protection through impartial tribunals free from local prejudice be given to the alien in his right to live and labor that is now given to him with respect to his property rights.

Alexander H. Robbins, of Missouri:

In respect to the recommendation for declaratory judgment, may I call attention to the fact that this year the Conference of Commissioners on Uniform State Laws has entered upon a discussion of the first tentative draft of such a law? I think it would be better for us to refer this matter to that Conference. I therefore move that the recommendation of the Committee to