REFORMS IN JUDICIAL PROCEDURE

ADDRESS BEFORE THE JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES, FEBRUARY 27, 1914

The Judiciary Committee of the House of Representatives, Sixty-third Congress, Second Session, Honorable Henry D. Clayton of Alabama, chairman, met on February 27, 1914, pursuant to a request of the American Bar Association, for a hearing on certain bills, particularly H. R. 133, “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"; and H.R. 4545, “To amend an act entitled 'An act to codify, revise, and amend the laws relating to the judiciary', approved March third, 1911." The second of these bills, more fortunate than the first, passed Congress and was approved December 25, 1914. See foot-note, page 474. Among the members of the American Bar Association in advocacy of the passage of these bills, were Honorable William H. Taft, the president of the association, Honorable Alton B. Parker, of New York, and Senator Elihu Root. Mr. Root addressed the Committee as follows:

I AM to breth

AM very glad to join my brethren of the American Bar Association in saying a word on this subject, although I had not expected to take it up at this stage.

There are three bills on the same subject-matter as the bill which you have been discussing now before the Senate Committee on the Judiciary. They have been referred to a subcommittee, which is about to take them up and probably give hearings upon them. Those bills are one granting to the courts the power to make rules on the common-law side, one permitting a case brought on the wrong side to be transferred over to the other without going back and beginning over again, and one preventing the reversal of decisions except for matters going to the merits.

Let me say, as I am here, something about the practical aspect of this kind of legislation. Bills intended to cure the evils spoken of have been before both Houses of Congress for a great many years and there has been a very gradual

advance in sentiment regarding them. At first, I can recall the American Bar Association Committee coming before the Senate Judiciary Committee and being unable to get any bills of the character reported. Then, after a few years, the committee came to report them. I think I have reported bills on all of these subjects from the Senate Judiciary Committee to the Senate several times and I think the same course has been followed in the House. Then these bills came to the stage of passing one House and dying in the other. Judge Clayton has just mentioned a bill which was passed in the House and passed with amendments in the Senate, but which failed to become law because of the conditions late in the session. There have been a number of bills aimed at these evils that have gone through one House or the other. It is quite evident that there is a general feeling that there are defects in our system of practice which stand in the way of the doing of justice and which ought to be cured. What we need is to have united action and bring the subject up out of the level of private bills onto the level of matters of public importance that require the united action of the committees in both Houses the united and coöperative action of the committees of both Houses.

I am not going into the details of these bills. They differ slightly in form before this committee and before the Senate committee, but that can be regulated by conference either before or after they have passed; but I want to say that all point out the same evil throughout this country in greater or less degree.

We have come to the building up of systems of practice in which justice is tangled in the net of form, in which a plain, honest man coming into court to assert his rights or to ask redress for a wrong finds himself confronted by statute-made obstacles to getting a decision on his demand. My own state of New York is the worst sinner in that respect in the

country, I believe, although it was very nearly seventy years ago that Mr. David Dudley Field started the reform procedure which spread over the greater part of the country and which was followed by Great Britain in 1873. But just about the time that the country at large had adopted the reformed and simplified procedure and Great Britain, from which we derive our system of law, had followed, we began to take a back track and to build up a complication of procedure until now legislatures have put into practice specific provisions for this thing and that, and that, and that, giving a litigant a right to an examination here, giving him a right to interlocutory relief there; so that a man who comes into court saying he has been wronged and asking a judgment, has to try twenty lawsuits about statutory rights before he can get to a judgment on his simple demand. When we make a statutory right the judges have got to observe it just as much as they have the original right founded on common justice. If they ignore it, there is reversal; and so the man who has but little means to employ lawyers, the man who has but little time to take from earning his livelihood, becomes discouraged and sometimes is ruined; and the men who have abundant means to employ lawyers can secure immunity against being brought to justice upon the demands of poorer and humbler litigants. A race of acute, adroit code lawyers has grown up. You will find men in any of the great states where this system prevails, where the legislature has been interfering with the practice, who will undertake for reasonable compensation to delay any case indefinitely; and as a rule they can do it. The reason is that our legislatures have built up a great system of technical procedure creating statutory rights which prevent the courts from doing justice.

Mr. McCoy. Is it not true that a lawyer who has encountered something in his own practice is likely to go up to the legislature and get an amendment to the code?

Mr. ROOT. Precisely. And the prohibitions which are put in our constitutions against special legislation have contributed to that. Somebody sees what seems to him an evil in his own practice, or he is disgruntled; something has been done that he does not like, and he becomes a member of the legislature, and he gets a change in the code of procedure. That may be all very well for him, but it may be very bad, indeed, for ten thousand other people; and our system of practice has been built up in that way on special instances to answer the demands of the lawyer who thinks about his own case instead of considering the general interests of the public. Mr. THOMAS. Senator, how long after filing an equity suit in New York can you get a trial ?

Mr. ROOT. It does not take very long to get a trial of an equity case there. Two months, Judge Parker says. The great trouble is not so much getting to the trial; it is that we have so many technical provisions that you have to go back and have another trial.

I was about to say that our judges want to do justice. Here and there there may be a judge who does not want to, but it is a very rare exception. My observation is that three times out of four they are prevented by the technical rules of practice from doing the justice they desire to do.

Mr. McCoy. May I make another suggestion, Senator? Mr. Root. Yes, sir.

Mr. McCoy. In answer to Mr. Thomas's suggestion, I would say that you can reach a case in New York City on the equity special term in two months, provided all these technicalities have not been used against you.

Mr. ROOT. Yes, sir; after the case gets on the calendar and if there are no proceedings to prevent.

Mr. THOMAS. Senator, please tell us what you think of the constitutionality of this bill.

Mr. Roor. You mean the bill authorizing the Supreme Court to make rules?

Mr. THOMAS. Yes, sir; this bill we are discussing now.

Mr. ROOT. I have never supposed there was any serious question as to its constitutionality. Of course, this would not confer upon the Supreme Court the power to abolish jury trials, and it would not confer upon them the power to violate any provisions of the Constitution; but, really, the effect of this bill is

Mr. VOLSTEAD (interposing). Would it confer upon the judges the right to modify any existing statute? That is, can we delegate to the courts the power to change an existing statute?

Mr. ROOT. No; we cannot. But it is this bill which changes the existing statute. We do not authorize the courts to do so. What we have now is a statute which requires the courts to conform to the practice in the separate states. This bill is a substitute for the requirement of conformity to the practice of the separate states. It modifies that requirement by authorizing the courts to make the rules of practice. To that extent this law will modify the existing statute. We do not authorize the courts to change the existing statute.

Mr. THOMAS. Here is the matter that I want your opinion upon, Senator. Section 8 of the Constitution of the United States enumerates the various powers of Congress, and, among others, subsection 9, "To constitute tribunals inferior to the Supreme Court," and subsection 18 of that section reads as follows:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

I would like your opinion about that.