N.J. Constitutional Convention: Vol. 4, Page 104


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Tuesday, July 1, 1947 (Morning session)

But it was a very serious situation at the time when our courts were set up, to have only central courts. The conditions of travel were such that it seemed necessary to have a court at every man's door. And so, very generally in this country the result was to set up a local court of general jurisdiction of law, on the model of the King's Bench, in every county.

In California there is a superior court, and while the judges are judges for the whole state, there is a court for the general jurisdiction of law and equity in every county. Most states have districts or circuits.

The model, of course, I suppose, was the organization of our federal courts under the Judiciary Act of 1789. But at any rate, what we set out to do was to have local courts of petty jurisdiction, a series of courts of general jurisdiction at law, a court of general jurisdiction in equity. But more and more we came to commit equity jurisdiction to the court of general jurisdiction at law. And there were a separate set of courts of probate jurisdiction.

We have the central courts of federal jurisdiction, but a good many states began to set up intermediate appellate courts - a very unfortunate thing, it always seemed to me. In fact, in the 19th Century they carried that to extremes. We didn't trust the courts of petty jurisdiction, so that you could take an appeal to the court of general jurisdiction, try the case all over again, and you then went from that to the intermediate appellate court, and finally to the old appellate court. It took a long time to get a case through the judicial mill, you might say. In fact, I think that the pioneers rather liked litigation in the days before the movies, in the days before the radio. The farmer could find his theatre in the local court house.

When I came to the Bar in Nebraska in 1890, when the court would meet in one of the local rural counties you would find the lumber wagons lined up around the court house square three deep, and all the farmers of the county were there to watch the controversy carried on and to appraise the work of the lawyers, and to speculate on the outcome of the verdict of the jury. It did not have the best effect on our policies of practice and procedure. It had to, in some measure, follow the lines of what we used to call a sporting theory of judicial practice. That, to a certain extent, was a gain. As Sir Frederick Pollock put it, its similar phenomena could have been perceived in rural England at one time where everybody turned out to see a trial. The idea was that the party should prevail whose advocate was the gamest bird with the longest spurs. At any rate, not only our judicial organization, but much of our precedure was shaped by those circumstances.

The first idea of simplifying this system came from Lord Selborne, whose work culminated in the Judiciary Act in England in


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