APPENDIX A. A BILL (S. 1214) TO AUTHORIZE THE SUPREME COURT TO PRESCRIBE FORMS AND RULES, AND GENERALLY TO REGULATE PLEADING, PROCEDURE, AND PRACTICE ON THE COMMON-LAW SIDE OF THE FEDERAL COURTS. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court shall have the power to prescribe, from time to time and in any manner, the forms of writs and all other process; the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; drawing up, entering, and enrolling orders; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice, and procedure to be used in all actions, motions, and proceedings at law of whatever nature by the district courts of the United States and the courts of the District of Columbia. That in prescribing such rules the Supreme Court shall have regard to the simplification of the system of pleading, practice, and procedure in said courts, so as to promote the speedy determination of litigation on the merits. SEC. 2. That when and as the rules of the court herein authorized shall be promulgated, all laws in conflict therewith shall be and become of no further force and effect. APPENDIX B. 1910. August. The matter was mooted at the Chattanooga meeting of the American Bar Association. 1910. December 6. President Taft, in an official message to Congress, said: "One great crying need in the United States is cheapening the cost of litigation by simplifying judicial procedure and expediting final judgment. Under present conditions the poor man is at woeful disadvantage in a legal contest with a corporation or a rich opponent. The necessity for the reform exists both in 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. Under the law the Supreme Court of the United States has the power and is given the duty to frame the equity rules of procedure which are to obtain in the federal courts of first instance. In view of the heavy burden of pressing litigation which that court has had to carry, with one or two of its members incapacitated through ill health, it has not been able to take up problems of improving the equity procedure which has practically remained the same since the organization of the court in 1789. It is reasonable to expect that with all the vacancies upon the court filled, it will take up the question of cheapening and simplifying the procedure in equity in the courts of the United States. The equity business is much the more expensive. 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 today 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." 1910. The federal equity rules were prepared by the Supreme Court. 1911. July 12. President Wilson's address before the Kentucky Bar Association: "There are two present and immediate tests of the serviceability of the legal profession to the nation, which I think will at once be recognized as tests which it is fair to apply. In the first place, there is the critical matter of reform of legal procedure-the almost invariable theme, if I am not mistaken, of all speakers upon this question from the President of the United States down. America lags far behind other countries in the essential matter of putting the whole emphasis in our courts upon the substance of right and justice. If the bar associations of this country were to devote themselves, with the great knowledge and ability at their command, to the utter simplification of judicial procedure, to the abolition of technical difficulties and pitfalls, to the removal of every unnecessary form, to the absolute subordination of method to the object sought, they would do a great patriotic service, which, if they will not address themselves to it, must be undertaken by laymen and novices. The actual miscarriages of justice, because of nothing more than a mere slip in a phrase or a mere error in an immaterial form, are nothing less than shocking. Their number is incalculable, but much more incalculable than their number is the damage they do to the reputation of the profession and to the majesty and integrity of the law. Any one bar association which would show the way to radical reform in these matters would insure a universal reconsideration of the matter from one end of the country to the other and would by that means redeem the reputation of a great profession and set American society forward a whole generation in the struggle for an equitable adjustment of its difficulties." 1911. August 17. Resolution offered in American Bar Association at Boston. (A. B. A. Rep., p. 50.) 1912. August 27. Resolution unanimously adopted and committee created at Milwaukee. (A. B. A. Rep., pp. 35, 434.) 1912. December 2. American Bar Association's Procedural Bill introduced in the House of Representatives by Chairman Henry D. Clayton. 1912 Bill also introduced in Senate by Chairman C. A. Culberson. 1913. September 2. Work of committee endorsed at Montreal and Conference of Judges organized. (A. B. A. Rep., pp. 34, 541.) 1913. Symposium on Procedure conducted by the American Bar Association at its Montreal meeting. 1914. February 27. Messrs. Wm. Howard Taft, Elihu Root, Alton B. Parker, James D, Andrews and Thomas W. Shelton appeared before the Committee on the Judiciary of the House of Representatives and presented evidence and made arguments in favor of the bill. 1914. March 27. Unanimous report in favor of the bill made by the Committee on the Judiciary of the House of Representatives giving reasons and citing authorities. Copies can be had from your Congressman. 1914. October 20. Work of committee again unanimously endorsed (A. B. A. Rep., pp. 45 and 571). President Taft's annual address before the Convention endorsed the campaign, and approved its object and purpose. (A. B. A. Rep., p. 381.) 1914. December 1. Hon. William Howard Taft became a member of the Committee on Uniform Judicial Procedure. 1915. January 9. President Wilson spoke at Indianapolis and said: "I do know that the United States, in its judicial procedure, is many decades behind every other civilized government in the world; and I say that it is an immediate and imperative call upon us to rectify that, because the speediness of justice, the inexpensiveness of justice, the ready access of justice, is the greater part of justice itself. "If you have to be rich to get justice, because of the cost of the very process itself, then there is no justice at all. So I say there is another direction in which we ought to be very quick to see the signs of the times and to help those who need to be helped." 1915. August 17. Report of committee again unanimously endorsed and a special resolution adopted instructing the committee to appeal to the President and Congress. This appeal was made. (A. B. A. Rep., pp. 32, 40, 502.) 1915. November 10. There was a hearing before a sub-committee of the Committee on the Judiciary of the Senate. 1916. Entire program endorsed by the Judicial Section. (A. B. A. Rep., p. 752.) 1916. November. President Wilson, in his New York address, said: "The procedure of our courts is antiquated and a hindrance, not an aid, in the just administration of the law. We must simplify and reform it as other enlightened nations have done, and make courts of justice out of our courts of law." 1917. January 2. There was a favorable report on the bill by the Senate Judiciary Committee. The following Senators voted against it and signed a minority report, viz.: T. J. Walsh, C. A. Culberson, W. E. Chilton, Duncan U. Fletcher, James A. Reed, Henry P. Ashurst, Jno. K. Shields, Hoke Smith, Albert B. Cummins. (Memo.) Senator Chilton is not in the present Senate and Senator Fletcher will vote for the bill. Senator Culberson wrote that he would favor his own bill which is almost identical with the present one. (See 1917 Report.) 1917. September 5. Again endorsed by American Bar Association (A. B. A. Rep., p. 87). 1918. September 4. Again endorsed by American Bar Association. (A. B. A. Rep.) 1918. Advocated by every law magazine in the United States. 1919. Advocated by Attorney-General Gregory in a letter to Senator Overman, the patron of the bill introduced in 1918. Advocated by Attorney-General Palmer in a letter to the Chairman of your committee. 1919. May 26. Bill introduced by Senator Frank B. Kellogg of Minnesota, member of the Judiciary Committee of the Senate and a former President of the American Bar Association. 1919. September 4. Again endorsed by American Bar Association. (A. B. A. Rep.) 1920. Again endorsed by the American Bar Association. The program has also been endorsed by The National Association of Credit Men, The Chamber of Commerce of the United States, The Southern Commercial Congress, The Commercial Law League of America, The National Civic Federation, Forty-six State Bar Associations, The Deans of the leading law schools of the country, The law journals and periodicals, The Judicial Section of the American Bar Association, and Henry Watterson in the Courier-Journal and other law editors. APPENDIX C. COPY OF PREAMBLE AND RESOLUTIONS PASSED AT THE TWENTYFIRST ANNUAL MEETING OF THE PENNSYLVANIA BAR ASSOCIATION. WHEREAS, The American Bar Association is making an earnest and organized effort to modernize and make uniform the procedure of the courts, and WHEREAS, There is pending in the 63d Congress a bill known as H. R. No. 133, intended to vest in the Supreme Court of the United States the power to formulate and put into effect a complete system of rules for the detail regulation of the federal district courts, and WHEREAS, Such a system will prove a model that may be followed by the several states and thus bring about unformity; and WHEREAS, The Bar Association of the State of Pennsylvania is in entire sympathy with the American Bar Association's program, and it is desired to give expression to the same; Be it resolved, That the Bar Association of the State of Pennsylvania formally gives expression to its entire sympathy with and approval of the American Bar Association's program, and does respectfully and earnestly request Congress to enact into law House Bill 133 at the earliest possible moment; and Be it resolved, That a special committee, to be composed of one member from each Congressional district of this state, to be named by the President, is hereby created for the purpose of presenting these resolutions to the Congressmen and Senators of this state and to the President of the United States, and otherwise to cooperate with the American Bar Association's Committee on Uniform Judicial Procedure in its campaign. MEMO. The form of H. R. 133 is identical with S. 1214, introduced by Senator Kellogg and is in the same form as first introduced except the explanatory lines appearing in italics. APPENDIX D. COPY OF PREAMBLE AND RESOLUTIONS PASSED AT THE 1920 ANNUAL MEETING OF THE ILLINOIS AND THE VIRGINIA STATE BAR ASSOCIATIONS. WHEREAS, In the year 1911, in response to an ever-increasing public demand, The American Bar Association started and has since made an earnest, persistent and organized effort to bring about a more certain, steadier, less expensive and less technical administration of justice in America and to that end modernize and make uniform the procedure of the courts; and WHEREAS, For over eight years there have been pending in Congress substantially the same bills known in the present Session as Senate No. 1214 and in the House as H. R. No. 133 intended to vest in the Supreme Court of the United States the power to formulate and put into effect a complete system of rules for the detail regulation of the federal district courts; and WHEREAS, Such a system will prove a model that may be followed by the several states and thus bring about uniformity; and WHEREAS, Today there exists throughout the country an earnest desire of Bench, Bar and People for immediate action, as evidenced in part by resolutions repeatedly passed; and WHEREAS, The Bar Association of the State of Illinois is in entire sympathy with said movement and with the American Bar Association's program, and it is desired to give expression to the same; and WHEREAS, There is pending in the Judiciary Committee of the United States Senate a bill known as No. S. 1214 and the identical bill, although unanimously recommended by the Judiciary Committee of the House, has been held in the Judiciary Committee of the Senate for more than eight years; Therefore, be it resolved, That the Bar Association of the State of Illinois formally gives expression to its entire sympathy with and approval of the program of the American Bar Association; and Be it further Resolved, That the Committee on the Judiciary of the United States Senate be and it is respectfully but earnestly requested to make an immediate report in order that a vote may be had in the Senate at this session; and: The Illinois State Bar Association does hereby respectfully and earnestly request Congress to enact into law Senate Bill No. 1214 at the earliest possible moment; and Be it further resolved, That a Special Committee, to be composed of one member from each Congressional district of this state, to be named by the President, is hereby created for the purpose of presenting these resolutions to the Congressmen and Senators of this state and to the President of the United States, and otherwise to cooperate with the American Bar Association's Committee on Uniform Judicial Procedure in its campaign. MEMO.-All state bar associations are earnestly requested to adopt the above form of resolution. APPENDIX E. INSTANCES OF FAILURE TO CONFORM TO STATE PRACTICE. It will be interesting to observe a few instances where conformity was impractical and the Supreme Court so held. A state statutory right to a change of venue was denied in Kennon vs. Gilmer (1889, 131 U. S., 24; 33 L. ed., 110). That the personal conduct and administration of a federal judge was not affected by a state statute regulating the manner in which a jury should be charged was held in Nudd vs. Burrows (1875, 91 U. S., 441; 23 L. ed., 286). That the provisions for uniformity do not extend to modes of procedure established by judicial interpretation of common law but only to statutes, was held in Wall. vs. C. & O. R. R. Co. (C. C. A., 1899; 95 Fed., 398). That actions at law, regardless of state statutes, must be brought in the name of the owner of the legal title, was held in Norfolk Co. vs. Sullivan (111 Fed., 181). That statutory substituted service is not applicable to the federal courts. (Bracken vs. Union P. R. R. (C. C. A., 1893), 56 Fed., 447.) That a federal rule of practice prevailed regardless of a subsequent state statute altering the time in which a writ is returnable. (Shepherd vs. Adams (1898), supra.) That amendments of process and pleadings allowed by state statutes will not be followed when inconsistent with federal statutes or amendments. (Henderson vs. Louisville R. R. Co. (1887), 123 U. S., 64.) That an equitable counter claim cannot be set up in a federal court. (Church vs. Speigleburg (1887), 31 Fed., 601.) That the granting or refusing of a |