N.J. Constitutional Convention: Vol. 4, Page 413


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Thursday, July 10, 1947 (Morning session)

action in one suit, you are deemed to have waived the jury trial on the legal issues. Now, if that isn't curtailment of the right of trial by jury, I don't know what is.

VICE-CHAIRMAN: One further subject was brought in. Do you suggest that a unified court will have any effect on the principles of divorce, or need have any effect on the principles of divorce?

CHANCELLOR OLIPHANT: Not if you keep divorce in the Court of Chancery and under a Chancellor who has absolute supervision and control of it.

VICE-CHAIRMAN: Which could be accomplished within an equity division of a unified court.

CHANCELLOR OLIPHANT: Oh, yes, there isn't any question about that.

MR. SMITH: I believe that the Chancellor should be told that of the witnesses appearing before us, there has been a minority proposing the so-called federal system - I should say of those advocating a change - and a majority proposing a Division of Chancery and a Division of Law.

There is one other question that I would like to ask you, sir, and that is something which concerns me as a layman. As I understand our present system, you, as Chancellor, although sitting in the top court, are disqualified when it comes to hearing an appeal on a case that comes out of Chancery. Have you any suggestion in that regard? Do you think that is wise, and if you do not, what remedy would you propose?

CHANCELLOR OLIPHANT: Well, I don't know that I would put the Chancellor in the top court.

MR. SMITH: He would be the head of this Chancery Division.

CHANCELLOR OLIPHANT: He has enough to do. Except for the contact that he has by sitting in the Court of Errors and Appeals, and the coordination of the whole system, he has no duties except to preside in the Court of Errors and Appeals and to do his share of the work on the law opinions.

MR. SMITH: But at the present time your position on the top court is an anomoly as it applies to the equity phases.

CHANCELLOR OLIPHANT: Oh, absolutely.

MR. DIXON: I take it you would be satisfied to give the Legislature some authority over the rule-making power of the law courts?

CHANCELLOR OLIPHANT: No, I don't think the Legislature should have the rule-making power.

MR. BROGAN: But you limit the rule-making power to procedure.

CHANCELLOR OLIPHANT: That's right.

MR. SMITH: And you would leave with the Legislature the question of rules of evidence.


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