N.J. Constitutional Convention: Vol. 4, Page 20

Tuesday, June 24, 1947 (Morning session)


over those courts.

Great and compelling advantages would be gained by the administration of law and equity in one court. Thereby it will be rendered possible to try in one litigation a cause that involves both legal and equitable issues, which, under our present system, requires separate trials in separate courts. Of even greater moment, there would be avoided the prevalent danger to a litigant of losing a cause of action through its mistaken assertion in the wrong court. This liability every year costs many litigants their rights. I know that because several years ago I made a compilation for my own guidance of cases in which litigants had forfeited the right to proceed with a cause of action by reason of getting into a court of law, whereas they should have been in Chancery, etc., and it was really appalling to find what losses had been suffered by litigants because of this mistaken action. It is the plain duty of this Convention to eliminate this danger.

The Court of Chancery is an ancient and revered landmark, but one that has been left far behind by the advancing tides of time and progress. Its origin in English history was an historic accident; its survival today is purely vestigial. It is significant that neither in England, where the court was abolished in 1873, nor in any one of our 44 states where law and equity are merged, has there been any movement to recreate a separate court of equity. To leave our Court of Chancery standing alone in splendid isolation might satisfy the legal antiquarian, but would destroy the principle of integration which should be the root principle of the reconstruction of our judiciary. If the dominating purpose in such reconstruction is scientific and not sentimental, we cannot afford to compromise with this principle.

Finally, we propose that the Legislature should be constitutionally empowered to provide for lower courts, such as our District Courts, these courts to be placed under the administrative supervision of the Chief Justice.

Our fourth proposal is that all judges shall be adequately paid for full-time judicial service. This needs little comment. The emphasis is on a full-time service, which would exclude any private enterprise or conflicting loyalty in any judge. Members of our state judiciary should not be privileged, as county judges are today, to preside over their courts one day and to appear the next day at the bar of another court.

The fifth and last proposal is that the term of a judge, at least after an initial test term of modest length, should be extended to 12 or 15 years, subject to retirement. This suggestion, of course, approximates that made by Senator Hendrickson. This proposal stands midway between the federal system which provides life terms

Previous Page in Book ********* Table of Contents *********** Next Page in Book