CHAPTER X PROCEDURE-IN GENERAL § 98. In general. 99. Procedure at law. § 100. Criminal procedure. § 98. In general. The procedure of the federal courts is distinctive in suits in equity, admiralty and bankruptcy. In criminal proceedings the procedure is substantially the same as in the state courts, and this has also been the rule in civil actions at law. It is not deemed useful in a work of this scope to do more than present a general description of federal procedure with a more detailed account of a suit in equity in the federal courts. The present chapter will be devoted to this general description, and in the chapter following will be found an outline of a suit in equity. § 99. Procedure at law. In general, the procedure of federal courts of law is the same as that of the corresponding courts of the state in which the federal courts are held. It is provided by statute that, "The practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.' 991 The principal object of this statute, which is known as the Conformity Act, seems to have been to relieve the lawyers from the burden of having to learn two systems of procedure. Subject to the provisions of this section, and to rules made by the Supreme Court, the federal courts may make their own rules regulating their own practice.3 For some time past there has been agitation for the establishment of a distinct system of law procedure in the federal courts corresponding to the simplified equity. procedure recently put into operation, and it is probable that before long the Supreme Court, with the authority of Congress, will provide such a system. Meanwhile there is no separate practice at law in the federal courts, but in each state the federal practice conforms substantially to the local practice. Jury Trial. The right of trial by jury is guaranteed by the seventh amendment to the Constitution, which provides that "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law."4 This right may be waived by written agreement of the parties.5 § 100. Criminal procedure. Though there are no common-law offenses against the United States, the rules of the common law governing criminal procedure and prac 1-Rev. St., § 914, 4 Fed. St. Ann. 563-577. See, also, Rev. St., § 271, set out in § 43, ante. 2-Nudd v. Burrows, 91 U. S. 426; Indianapolis, etc., R. Co. v. Hoist, 93 U. S. 291. 3-Rev. St., §§ 917-918, 4 Fed. St. Ann. 583-586. 4-For discussion of this provision, see 9 Fed. St. Ann. 335-351. 5-Rev. St., 88 648, 649; Baylis v. Travellers' Ins. Co., 113 U. S. 316. tice are in force in the federal courts, except in so far as these rules have been modified by law." Criminal proceedings are subject to the provisions of Amendments IV, V, VI and VIII to the Constitution, and of Article III, section 2 of the Constitution. Amendment IV provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Amendment V provides that "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law." Amendment VI provides that "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." 6-22 Enc. Pl. & Pr. 312. For statutory provisions, see 2 Fed. St. Ann. 319-361. See, also, United States v. Reid, 12 How. 361. 7-See 9 Fed. St. Ann. 249-255. Amendment VIII provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Article III, section 2, provides that "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." § 101. Procedure in admiralty. The system of pleading and procedure of the admiralty courts is much like that of the courts of equity, though even more free from technical rules. The Supreme Court is given power by Congress to regulate the practice of the district and circuit courts in admiralty suits, and under this power has adopted rules of practice in admiralty and maritime causes known as the admiralty rules.❞ There are two kinds of admiralty proceedings; a suit in personam, and a suit, or more properly a "libel,” in rem. The former proceeding is directed against a personal defendant, while the latter is directed against a vessel or other property. The two kinds of proceedings may sometimes be united in a single suit. The first pleading in an admiralty suit is the libel, which corresponds to the declaration at law or the bill in equity. Other proceedings are the claim (in a proceeding in rem), the answer, the replication, etc. The trial is ordinarily by the court without a jury, there being no right to a jury trial except where so provided by statute. The Supreme Court has made no rules on the subject of evidence, and each court is governed by its own rules. In some districts the witnesses are examined in open court; in others their testimony is taken down. 8-Rev. St., § 917, 4 Fed. St. Ann. 683. 9-For Admiralty Rules, see 210 U. S. 544; 29 Supp. Ct. Rep. xxxix. before trial by commissioners and presented to the court in writing. The commissioners have the powers of a master in chancery and proceedings before a commissioner are similar to those before a referee or master. The rules of evidence are much the same as in other courts, though the admiralty courts are more liberal in admitting evidence.10 § 102. Procedure in bankruptcy. The suit in bankruptcy under the Bankruptcy Act of 1898 is a special proceeding governed by the provisions of the act itself. The suit is instituted by the filing of a petition. The forms of petitions, schedules, etc., are prescribed by the Supreme Court. The suit is substantially a suit in equity." 11 10-See the title "Admiralty," in 1 Enc. L. & P. 1219; 1 Enc. Pl. & Prac. 249; 1 Corp. Jur. 1241. 11-For rules and forms in Bankruptcy, see 210 U. S. 567; 18 Supp. Ct. Rep. iii. |