N.J. Constitutional Convention: Vol. 4, Page 313



Tuesday, July 8, 1947 (Afternoon session)

(The session began at 2:00 P. M.)

PRESENT: Brogan, Dixon, Drenk, Jacobs, McGrath, McMurray, Miller, G. W., Peterson, H. W., Smith, G. F., Sommer and Winne.

Vice-Chairman Jacobs presided at the request of Chairman Sommer.

VICE-CHAIRMAN NATHAN L. JACOBS: In view of the fact that the speaker scheduled for 2:00 o'clock will be unable to appear, Judge Smith has expressed a willingness to continue with his discussion.

JUDGE WILLIAM F. SMITH: I am going to continue my discussion this afternoon concerning judicial power. For the purpose of the record I would like to direct the attention of the members of this Committee to the language of section 723 (c), Volume 28, U.S.C.A., which we call the Judicial Code, and from which the rule-making power of the United States Supreme Court is now derived.

There is no suggestion by me that prior to this statute there was no rule-making power. There was a difference of opinion as to whether or not the inherent rule-making power of the Supreme Court was sufficiently broad. There is always a rule-making power in the court. However, Congress in its wisdom and in anticipation of a simplicity of procedure, adopted the statute which provides as follows: "The court may at any time [that is referring to the United States Supreme Court] unite the general duties prescribed by it for cases in equity to those in actions at law, so as to secure one form of civil action and procedure for both, provided, however, that in such union of rules, the right of trial by jury at common law and declared by the seventh amendment to the Constitution, shall be preserved to the parties inviolate. Such united rules shall not take effect until they shall have been reported to Congress by the Attorney-General at the beginning of a regular session thereof and until after the close of such session."

MR. AMOS F. DIXON: That "reported to Congress," does that mean that it gives Congress the authority to change, to veto?

JUDGE SMITH: They recognized that probably some of the rules might be within the sphere of legislation, and to that extent

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