N.J. Constitutional Convention: Vol. 4, Page 188
thing definite should be said about prerogative writs. In paragraph 1, Section IV, they say, talking about the Appellate Division of the Superior Court: "Each such appellate division shall consist of three Justices of the Superior Court who shall be assigned for that purpose by the Chief Justice of the Supreme Court and shall sit therein, solely, for three years." I think that is contrary to the spirit of the Constitution in paragraph 5 of Section V - no that isn't it, that section that gives the Chief Justice the right to shift his judges - and may lead to ambiguity. I think you might say for three years, unless otherwise desired by the Chief Justice, or perhaps you want to say for not less than three years. This looks to me as though it might leave the door open to, say, three years flat, neither less nor more, and that is not in accord with the spirit of the act which should give flexibility.
The point of that is, that in setting up a Chancery and a Law Division, in three years time you get a better experienced court for the particular work they are doing.
A good deal has been said about the separate Chancery Court. Now, as a matter of fact our Chancery Court has habitually been recruited, throughout the years, not from Chancery experts but from prosecuting attorneys and Governors, elective officers, and what not, and our best opinions in Chancery are written by the Court of Errors and Appeals in which there hasn't been a Chancery expert in years.
MR. BROGAN: Why do you say that?
MR. HARRIS: I mean, that came up from Chancery.
MR. BROGAN: Isn't a man who spends half his life, maybe most of his adult life, in the Court of Errors and Appeals, studying equity just as well as law cases - is he not expert?
MR. HARRIS: Yes, but he did not come up from Chancery.
MR. BROGAN: No, but does he have to come from Chancery to be an expert? Can't he be an expert otherwise?
MR. HARRIS: I think he can be. That's why I think a law judge is perfectly capable of applying equity principles, and I think that when a case comes before a judge in the future he would be able to decide the case in principle and dispose of the entire case if necessary.
VICE-CHAIRMAN: I take it that your point is that just as the Court of Errors and Appeals judges have become expert in law and equity, so the trial judge should become expert in law and equity.
MR. HARRIS: I see no difference.
MR. BROGAN: The form, however, is entirely different. The one is a trial judge, and the other a law judge who reviews a record and may go to his books when in doubt and explore the law and come to his conclusion after investigation. So the task is slightly
Previous Page in Book ********* Table of Contents *********** Next Page in Book