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forums for Liability Act suits." But the Jennings Bill was far more drastic than § 1404 (a). The Jennings Bill would in large part have repealed § 6 of the Liability Act. It would have delimited the available forum for actions brought in state as well as federal courts.18 It would have eliminated the right to sue in any district in which the railroad did business. Initially, this applied only to Federal Employers' Liability Act plaintiffs, but in final draft the Jennings Bill generally restricted all, including passengers, who might sue railroads for personal injuries. Inasmuch as none of these changes in the law was contained in the Code, it is evident that § 1404 (a) might well be considered "noncontroversial" by the same Congress which would regard the Jennings Bill as "controversial." 19

17 See, e. g., Hearings before House Committee on the Judiciary on H. R. 1639, 80th Cong., 1st Sess. 6-12, 17-22, 31-8 (1947); H. R. Rep. No. 613, 80th Cong., 1st Sess., Pt. 1, 3-6; Pt. 2, 1-2, 4 (1947).

18 As one of its three grounds of opposition to the Jennings Bill, the minority Report stated, "The bill restricts State courts in the administration of justice, deprives them of their prerogatives to require change of venue of lawsuits where necessary, and transcends the provisions of State laws governing the jurisdiction of State courts." H. R. Rep. No. 613, 80th Cong., 1st Sess., Pt. 2, 1 (1947).

Doubt was expressed that Congress had constitutional power so to affect state courts. See, e. g., letter of Acting The Assistant to the Attorney General, Hearings before Senate Committee on the Judiciary on S. 1567 and H. R. 1639 (Jennings Bill), 80th Cong., 2d Sess. 215 (1948).

19 Furthermore, petitioner's argument suggests at most that § 1404 (a) was as "controversial" as the Jennings Bill, as of July, 1947. Thereafter, however, both the Code and the Jennings Bill were referred to the Senate Judiciary Committee, which held hearings on both. The same three Senators composed the Subcommittee holding these hearings: Sen. E. H. Moore, Chairman at the hearings on the Jennings Bill in January, 1948; Sen. Donnell, Chairman at the hearings on the Code in April and June, 1948; and Sen. McGrath. The relationship between the two proposals was ex

335

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Moreover, even if we could distill from the legislative history of the Jennings Bill a usable concept of "controversial change," its application would destroy petitioner's case. For petitioner concedes that in fact § 1404 (a) did not arouse controversy; he submits the Jennings Bill as contrast. His argument is obviously based not on the actual legislative history of § 1404 (a), but on necessarily vague speculation as to what Congress might have done had it fully realized that forum non conveniens was henceforth to be applicable in Federal Employers' Liability Act suits. The requisite assumption, that Congress did not appreciate the significance of its action when it ratified the Code and § 1404 (a) therein, is contrary to the facts shown by the legislative history which is of record. The lack of controversy reflected aware agreement and not the inertia of ignorance.

This was scarcely hasty, ill-considered legislation. To the contrary, it received close and prolonged study. Five years of Congressional attention supports the Code.20 And from the start, Congress obtained the most eminent expert assistance available. The spadework was entrusted to two lawbook-publishing firms, the staffs of which had unique experience in statutory codification and revision."

pressly called to their attention. See Hearings before Senate Committee on the Judiciary on S. 1567 and H. R. 1639 (Jennings Bill), 80th Cong., 2d Sess. 111-112 (1948). The Committee reported the Code favorably, albeit with amendments; but the Jennings Bill was not reported.

It is clear that only the Tax Court provisions were regarded by the Senate Committee as sufficiently "controversial" to be deleted. See S. Rep. No. 1559, 80th Cong., 2d Sess. 2 (1948); 94 Cong. Rec. 7927 (1948).

20 June 28, 1943, Congress appropriated $100,000 "For preliminary work in connection with the preparation of a new edition of the United States Code, including the correction of errors . . . Stat. 230.

21 See H. R. Rep. No. 308, 80th Cong., 1st Sess. 2-3 (1947).

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They formed an advisory committee, including distinguished judges and members of the bar, and obtained the services of special consultants." Furthermore, an advisory committee was appointed by the Judicial Conference.23 And to assist with matters relating to the jurisdiction of this Court, Chief Justice Stone appointed an advisory committee, consisting of himself and JUSTICES FRANKFURTER and DOUGLAS.24

That these experts assisted in drafting the Code does not mean that Congress blindly approved what outsiders did. This is demonstrated, for example, by the statement of Representative Robsion, Chairman of the House Judiciary Subcommittee, at the hearing conducted by his

22 "This public-spirited group [the advisory committee] consisted of Judge Floyd E. Thompson, former chief justice of the Illinois Supreme Court and former president of the Chicago Bar Association; Hon. Justin Miller, former associate justice of the United States Court of Appeals for the District of Columbia; Judge John B. Sanborn, judge of the United States Circuit Court of Appeals for the Eighth Circuit; Hon. Walter P. Armstrong, of the Memphis bar and former president of the American Bar Association; and Hon. John Dickinson, of the Philadelphia bar, former assistant Attorney General of the United States.

"This advisory committee was ably assisted by Judge John J. Parker, senior circuit judge of the United States Circuit Court of Appeals for the fourth circuit, who rendered valuable service as a judicial consultant. The committee was also assisted by two special consultants each an expert in the field of Federal procedure: Judge Alexander Holtzoff, United States district judge, District Court for the District of Columbia; and Prof. James W. Moore, of Yale University." H. R. Rep. No. 308, 80th Cong., 1st Sess. 3 (1947). See also Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 7-8, 12-14, 17-18, 24-26 (1947).

23 Circuit Judge Maris was Chairman, and District Judges Galston and W. F. Smith also served on the committee. Loc. cit. supra, note, 22. See 1944 Report of the Judicial Conference 24; 1945 id. 17-18; 1948 id. 41.

24 H. R. Rep. No. 308, 80th Cong., 1st Sess. 4 (1947).

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Subcommittee in 1947. "We shall do the same as we did last year . . . just read them line by line and have you and other expert codifiers and other persons go over the bill with us." 25

Petitioner almost seems to imply that this very careful Committee consideration vitiates the legislation. But the Committee system is integral in typical legislative procedure; Congress could not function without it.26 A canon of construction which would discount statutory words pro tanto, the greater the expertise or the more meticulous the Committee consideration devoted thereto, or the longer and more complex the legislation, would be absurd, not least because it would make mockery of the techniques of statutory interpretation which have heretofore been used by the courts.

The experts and the Committees did not attempt to conceal the proposed revisions. "The committee on revision of the laws in the preparation of those preliminary

25 Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 23 (1947).

26 "Congressional government is Committee government . . . The House sits, not for serious discussion, but to sanction the conclusions of its Committees as rapidly as possible. It legislates in its committee-rooms; not by the determinations of majorities, but by the resolutions of specially-commissioned minorities; so that it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work." Woodrow Wilson, Congressional Government, pp. xvi, 79 (15th ed. 1900). Nor has this changed. "The committees are the workshops of Congress. Committee work is the core of the legislative process. . . . It is the center of legislative activity where the law-making and supervisory functions of Congress are largely performed." Galloway, Congress at the Crossroads 53 (1946). And see Bryce, The American Commonwealth c. XV (New Ed. 1931); Chamberlain, Legislative Processes, cc. V-VI (1936); Kefauver and Levin, A Twentieth-Century Congress 114-153 (1947); Luce, Legislative Procedure, cc. IV-VIII (1922); Walker, The Legislative Process, c. 11 (1948).

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drafts.sought to give them the widest possible circulation. We made certain that every member of the legislature got one; we made certain that they were sent to every United States attorney; that they were sent to every member of the Federal judiciary; that they were sent to the appropriate committees of the leading State and local bar associations; that they were sent to everyone who ever evidenced any interest in the work at all."" Indicative of the success in publicizing the provisions of the Code is the fact that there was specific treatment of § 1404 (a) and its applicability to Federal Employers' Liability Act suits in a number of legal periodicals.

28

The initial appearance of § 1404 (a) was in the Second Draft of the Code, adopted by the meeting of May, 1945. Its text has remained unchanged. It was accompanied by a reviser's note, which recited that "Subsection (a) is

It was drafted in accordance with a memorandum of Mar. 7, 1945, from the author of Moore's Federal Practice, stating that recognition should be given the doc

27 Hearings before House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess. 8 (1947).

28 Expressly reciting the reference to the Kepner case in the reviser's notes: Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 933 (July, 1947); Note, New Limitations on Choice of Federal Forum, 15 U. of Chi. L. Rev. 332, 341, n. 54 (Winter [March], 1948); Comment, Forum Non Conveniens, A New Federal Doctrine, 56 Yale L. J. 1234, 1249, n. 115 (Aug., 1947). And see Barrett, The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380, 421 (Sept., 1947); Note, 32 Minn. L. Rev. 633, 636, n. 29 (May, 1948). Cf. Note, 23 Ind. L. J. 82, 87, n. 26 (Oct., 1947) (quoting § 1404 (a) but not referring to the reviser's notes).

Of course the fact that the Judicial Code was being revised was publicized in discussions not directly bearing on the instant issue; e. g., Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216 (1948); Zinn, Revision of Federal Judicial Code, 48 Law Notes, Nos. 3-4, 11 (1944) (earliest reference); Note, The Proposed Revision of the Federal Judicial Code, 60 Harv. L. Rev. 424 (1947).