N.J. Constitutional Convention: Vol. 4, Page 245


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947 COMMITTEE ON THE JUDICIARY
Thursday, July 3, 1947 (Afternoon session)

you still come out insecure, because you don't know what the right rule is.

I had a case the other day, and it was very important that I get this suit started properly and in the right court and under the proper procedure. It's not clear whether or not in an action under the statute known as the Tucker Act, a federal act, there is authority given by Congress to sue the United States of America directly. That point isn't clear, and I examined the authorities on it. Much to my amazement, in looking up the law I find that it's doubtful as to whether you should start your suit by way of petition or by way of bill of complaint. In the course of my examination I was astounded to find that after the federal courts had been in existence this long period of time, that because there is only one form of action, they are even to this day disputing in what cases you are entitled to a trial by jury and those cases in which you are not entitled to a trial by jury; and then the court has to determine whether the case is originally one that should have been brought in equity or in law.

Contrary to what Mr. Greene says about the transfer of cases into the federal courts, it seems to me from my observation that lawyers are very hesitant about going into the federal courts because of the obscurity of the procedure and the insecurity that is brought about by so many conflicting decisions in the various states.

The most that anybody can say for this new plan of having a single Supreme Court with an equity division is that it's going to be experimental. If the Court of Chancery is preserved in its present form, then the people of this State will retain a court that has experience of more than a century. The task of simplifying court procedure in the lower courts is sufficiently difficult without adding further complexities. I would also like to call attention to the great body of statutory law which has been enacted since 1844, in which statutory jurisdiction has been given to both the Court of Chancery and the law courts. In addition, there are many instances where the Legislature has bestowed certain statutory powers on Justices of the Supreme Court. Consequently, the Bar group can say that the proper application would be for you thoroughly and critically to examine all statutes to see what effect the changes which you are going to recommend will have.

The several parts of law and equity, except as therein otherwise provided, should continue with like powers and jurisdiction as if the Constitution had not been adopted. As a consequence of this position, by judicial interpretation and construction over the years, the Court of Chancery and the law courts had certain inherent jurisdiction. Jurisdiction which both courts had at the time of the adoption of the 1844 Constitution, being inherent in the courts,


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