had over 4,000 cases appealed, in order to determine which was substantive law and which was procedural law, and the controversy has created an enormous expense to the litigants, who had to pay tens of thousands and even hundreds of thousands of pounds to try to determine whether it was a substantive right or procedural right, if I may use that expression. Some 4,000 cases went to the courts on appeal, and hundreds of cases in the United States have likewise gone to the courts on appeal.

Mr. MITCHELL. When we worked on these rules, every now and then the question would come up "Is that procedural or is it substantive?" It is surprising how, under the existing decisions of our Supreme Court, the question is readily decided. A matter usually falls clearly into one class or the other. The twilight zone between the two classes is very limited. There was only a very limited number of instances where a real question arose as to whether a matter was substantive or procedural. In every case the bar was informed about it by notes to the rules, and the attention of the Supreme Court was called to the specific problem by special notes from the advisory committee. You can readily understand that there is no question of substantive law or procedural law that arises under these rules that has not been considered by the Supreme Court, at least brought to their attention, and that has not been acted on by the committee and considered very carefully.

We have this advantage, that when the Supreme Court has considered these things, and approved a certain rule, the inference is that the Court is satisfied the rule is procedural and not substantive. That is one of the great advantages of having a court of last resort to promulgate the rules.

There is a tremendous opportunity here to eliminate litigation in that way. It is a situation that is quite unique in some respects. The Supreme Court in litigated cases will nevertheless consider and decide those questions. They have already considered them. There have been pro and con arguments submitted to them.

Senator KING. Do you consider it procedural to compel a person to submit to a physical examination?

Mr. MITCHELL. You cannot compel him, but you can limit his right to maintain his action in a personal injury suit. That is done everywhere. There are decisions of the Supreme Court on that question. The rules on that subject are substantially the law. There is nothing new about them. The courts generally regard that as a procedural matter. Of course, if you are going to say that every step in a lawsuit that a man has to take in order to gain his rights is a matter of substantive right, you have nothing left in the way of procedure.

We feel that all Senator Austin has said would be true if the rules had come out from a star chamber session. But just stop and think that it has been the work of 311⁄2 years, and that 40,000 copies of the original draft have been distributed, and probably half as many of the second one. Every bar association has considered them. The labor people have passed on them and are satisfied with particularly the injunction provisions and those relating to suits against unincorporated associations. Patent lawyers say they are all right. It does not seem to me you are taking a very severe responsibility in keeping on the trail you started on in 1934 and allowing them to

become effective. If there is anything wrong about them, that will develop in practice, and the question will be argued and decided by the courts as to whether they are wrong or right. Give the rules a chance to demonstrate for themselves by actual experience whether they are right or wrong.

Senator KING. You do not consider this a case of delegation of legislative authority?

Mr. MITCHELL. As far as procedural matters are concerned; no. There have been many State decisions that hold that this is not an unconstitutional delegation of legislative authority. Many people have always claimed that the courts have the inherent right to make rules of pleading and practice, but our constitutional practice has been different. Some courts still hold that the courts may make their own rules of practice and procedure. This work has been well done. I can say that, although I am a member of the advisory committee, because these rules are not the sole work of the committee, but of the bar and bench of the country. Every student of the subject who has studied it, is convinced that it is the best system of practice and procedure that has been developed.

I am very much obliged to you for the privilege of appearing before the committee.

Senator AUSTIN. Before you leave I should like to ask you a question or two. The existence of these questions in our minds is caused by the fact that we do not wish to make a hasty decision. What do you mean by setting forth in your notes on pages 60 and 61 these various statutes: The United States statutes on attachment; the United States statutes on garnishment; the United States attachment on arrest; the United States attachments on replevin. What are they there for? Are they there to point out to us to look and see what statutes are repealed, or are they there for the purpose of saying in effect that they are repealed by the rules? I must confess the text of that note is not clear.

Mr. MITCHELL. I think I can answer your question by referring to a preliminary statement at the outset of these notes, which reads as follows:

Notes to the Federal Rules of Civil Procedure were prepared by the reporter, Dean Clark, and his staff, in order to. show the source of each rule, and to aid the advisory committee in framing their recommendations; to assist the members of the profession in their study of the committee's preliminary drafts; and to aid the Supreme Court in its consideration of the committee's report.

It further says:

Statements in the notes about the present state of the law, or the extent to which existing statutes have been superseded by or incorporated into the rules, should be taken only as suggestions and guides to source material. Such statements, and any other statements in the notes as to the purpose or effect of the rules, can have no greater force than the reasons which may be adduced to support them. The notes are not part of the rules, and the Supreme Court has not approved or otherwise assumed responsibility for them. They have no official sanction, and can have no controlling weight with the courts, when applying the rules in litigated cases.

The notes show the background of Federal and State statutes and judicial decisions, in the Federal equity rules, or in the British system, of the procedure recommended by the advisory committee.

If you are interested in some of the sources of the rules or the material we used in framing them, you will find in the notes references to these Federal statutes. Nobody has authority or has at

tempted to say that this or that statute is repealed. That can be determined by examining the rule itself.

The purpose of the notes is simply to show the material we had and the sources from which these rules came. If you are interested in that, look at some of these Federal statutes that are mentioned and you will find the real purpose of it. Maybe it was not very well stated, but this foreword was carefully drawn to make it clear that we were not doing anything more than showing the background and the sources of material.

My attention is called, in answering this question on rule 64, to the statement in the rule, after stating that State statutes are continued in each district, of the following qualification:

Any existing statute of the United States governs to the extent to which it is applicable.

The rule made no change whatever in any Federal statute that has to do with attachments.

Senator AUSTIN. I call your attention to this statement on page 60, the last sentence in the first paragraph:

This statute is superseded, as are district court rules which are rendered unnecessary by the rule.

Mr. MITCHELL. That is probably accurate. If you will examine the rule and statute you will probably find that conclusion is correct, but the foreword makes it clear that the notes are just the work of the reporter and his staff. The Court has not approved them and is not bound by them, and all the committee was doing in publishing the notes was to indicate the material we used and how it was procured, in order to aid the profession. The notes have no controlling effect, although they may aid in the interpretation of the rules.

Senator KING. Who is the next witness, Mr. Attorney General? The ATTORNEY GENERAL. Mr. Vanderbilt, the president of the American Bar Association, is present, and I would suggest that he be called next.

STATEMENT OF ARTHUR T. VANDERBILT, PRESIDENT, AMERICAN BAR ASSOCIATION

Senator KING. Come forward, Mr. Vanderbilt, and make such statement as you care to.

Mr. VANDERBILT. The main thing I would like to say would be that this is not a new matter, so far as the lawyers of this country are concerned. We worked for a good many years to bring about the enactment of the statute in 1934, and since the Court has undertaken the work pursuant to that statute I think there is not a bar association in the country that has not devoted a good many sessions to discussion of the first and second drafts that were circularized to the bar of the country. At Boston in 1936 there was an open session running through the greater part of 2 days devoted to these rules. The matter was there presented by former Attorney General Mitchell, Major Tolman, Dean Clark, and others. Men came from as far as Oregon to present their views. Everything that was said. was turned over to the committee so they could have the benefit of it in their further deliberations.

That same procedure was repeated last summer at Kansas City, and a good many additional suggestions were forwarded to the committee as a result of that. Not only were there these two general sessions in connection with meetings of the American Bar Association, but in all sessions of bar association activities, which comprised men interested in State and local bar associations, reports were brought back of the meetings and the interest displayed by all members, amounting on the whole to something like 7,000 or 8,000 members of these associations which discussed these rules. I think I am correct in saying that more than 6,000 lawyers were heard from direct to the advisory committee, and the Supreme Court, during the period of the preparation of the rules. So that so far as the consensus of opinion of the bar of the country is concerned, in respect of these rules, I can say that they were overwhelmingly endorsed. That includes the bench as well as the bar, because many judges participated in these discussions with the lawyers.

Senator KING. Was there any difference between the first and second drafts?

Mr. VANDERBILT. Oh, yes; in many respects. I cannot tell you in detail, but Major Tolman can give it to you rule by rule and phrase by phrase.

Mr. MITCHELL. The first draft had a good many alternative suggestions which were not included in the second draft.

Senator KING. Did you consider the question, Mr. Vanderbilt, of the delegation of authority involved in the repeal by implication of hundreds of statutes, some of which relate to procedural matters and others to primary rights? Did you consider whether we could delegate the authority to repeal statutes which were on the border line between procedural and substantive rights?

Mr. VANDERBILT. When I think what the Congress of the United States has done, and properly done, in my humble opinion, by way of delegating authority to a number of administrative tribunals to make complete regulations for their own practice, in matters which affect the public and individual citizens day by day far more seriously than the courts can possibly hope to do, it seems to me there is no question there at all. The Interstate Commerce Commission, the Federal Trade Commission, the Federal Communications Commission, and probably a dozen more are given complete authority not only to make their own rules, but to make legislative regulations. Now, clearly, Congress has the power, when mere matters of procedure are concerned, to delegate the power to the courts to make rules for their own guidance and for the conduct of litigation before the courts. If those rules by implication repeal statutes, that is part of the power of Congress as given to the courts. There is a considerable number of States in which the courts have held, and the legislatures have acquiesced, that the courts alone have the right to make rules of procedure. We do not need to follow that, because Congress in 1934 expressly gave that power to the courts.

Senator KING. May we infer your position is this: Assume a statute which has been in force for many years, which has been adhered to, dealing with procedural matters, do you contend that Congress may authorize the Supreme Court to promulgate a rule which may repeal that statute?

Mr. VANDERBILT. If it comes within the scope of the 1934 act. I have to go back to the old case in 1804, decided by Marshall, Way

man v. Stoddard, which held that the Congress had the power to delegate the rule-making right to the court. It has been on the basis of that decision that all these other decisions have been carried out and upheld.

Senator AUSTIN. We passed a similar act in 1924, did we not?
Mr. VANDERBILT. I do not know.

Senator AUSTIN. Was there not an act that enabled the Supreme Court to control its own docket?

Senator BURKE. I think that was in 1925.

Senator AUSTIN. And to promulgate rules? We have been doing this before. The only question in my mind has been of becoming satisfied with the work that has been done, not in any way disparaging the work of the distinguished gentlemen who have been in close touch with it for a long time. I have been interested in it probably as much as you have. The question in my mind is the question of taking wholesale this work and accepting it without the opportunity to study it as I have always studied legislation which has been referred to me as a member of a subcommittee.

Mr. VANDERBILT. First of all, Congress has given that power to the court in equity and in admiralty since 1789. The Supreme Court has had the power to control its own docket. Why should we not go the full distance and let the court do for the law side what it has always done in equity and admiralty, and what it has done for tribunals like the Interstate Commerce Commission?

Senator KING. May I interrupt you at this point?
Mr. VANDERBILT. Čertainly.

Senator KING. That brings to my mind the law passed in 1913, which provides that—

The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the district courts shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any district court, not inconsistent with the laws of the United States.

The point I had in mind a moment ago was whether we are not delegating authority so they can promulgate rules in contravention of the laws of the United States.

Mr. VANDERBILT. I do not think so, Senator. Suppose Congress should determine next year that it wanted to pass a certain statute having to do with some form of procedure. I do not think anybody would question its authority to do it.

Senator KING. It has happened so often that some of the proceedings of Congress have not been in consonance with my views, that I do not want to attribute infallibility to that body; but it does seem to me, with our specific division of powers, the Congress should not delegate to the judiciary or any branch of the Government such blanket authority, but ought to reserve that power to itself as provided in the Constitution of the United States.

Mr. VANDERBILT. That would mean, in the light of the decision of the former Chief Justice in Wayman v. Stoddard, that the Interstate Commerce Commission would not have the right to regulate its own procedure and to repeat the words of the former Chief Justice, "throw

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