N.J. Constitutional Convention: Vol. 4, Page 230

Thursday, July 3, 1947 (Morning session)

procedure. The litigant who has a choice between the state courts and the federal courts will in all probability go into the federal courts because the practice there is simpler and because he is not shunted back and forth. As a result, he does not have to worry very much about jurisdictional problems.

I would say that our judicial system is reminiscent of the old colonial farmhouse - the roof is leaking, the plumbing isn't so good, the floors are creaking. Every time the farmer gets irritated and is about to make some substantial improvements he reminds himself that he has a big mortgage which is about to be called, and that perhaps any day the mortgage will be foreclosed and he will be put out. And then, of course, he forgets all about making the improvements.

Now, as long as I have been a member of the Bar it has seemed to me there have been undercurrents of dissatisfaction with our separate courts of law and equity, and every time somebody has gotten excited about it and begun to talk of a constitutional amendment or revision, then, of course, all other efforts at improvement were dropped. We had a rather good example of that recently when the Chancellor appointed a committee to study and make suggestions as to how to improve the Chancery practice. This committee was headed by the distinguished former Chief Justice. As soon as constitutional revision appeared, the committee folded up.

I think we now have an opportunity to modernize our court system. It is about a hundred years behind the times. Just about a hundred years ago, in 1848, David Dudley Field, a very eminent member of the New York Bar, began to teach and preach judicial reform in the State of New York. In 1848, the New York Legislature approved a merger of law and equity. Mr. Field's writings and speeches which started the New York system were of profound influence upon the English Chancery practice, with the result that in 1873 England passed the Judicature Act which brought about a merger of law and equity, such as is being discussed here today. As a result of the New York and English experiments, many of our states followed suit, and I think New Jersey and Delaware and probably one other state, are the only ones in the Union that still cling to this institutionalized thinking generated by the old High Court of Chancery in England.

VICE-CHAIRMAN: Thank you very much, Mr. Greene.

I would like to ask one question, if I may. Your talk has emphasized the cost to the litigant as a result of this moving about from court to court because of questions of jurisdiction. Is there a corresponding increase in cost to the taxpayer because of the extended litigation?

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