N.J. Constitutional Convention: Vol. 4, Page 416

Thursday, July 10, 1947 (Morning session)

court and it was not taken, as they did in the ancient Chancery, without the other side present. What used to happen was this. Take a patent case where peculiarly the practice was for the lawyers to write down written interrogatories. They would put a witness on the witness stand who was generally an expert and they would then go off and play golf, and he would lecture to the typewriter. They didn't even have a stenographer, but they would go on pounding away on the keys and he would lecture on the intricacies, or whatever the facts were. Of course, that was an exception, but that was the way that the testimony was taken. Well, it was very oppressive and it was, of course, preposterous.

In President Taft's time there was a turnover and the testimony was taken in both courts alike. But even from the beginning, as you know I've already said, the same court of judges served in both capacities, both as equity judges and as law judges. And beginning with 1913 - we perhaps pressed our powers more than we should but it became very flexible - we would change a case from equity to law or from law to equity pretty much as we thought justice required. Of course, I am a little biased, because when you practice under a system you are apt to think well of that system - as far as I know, there has been no complaint of the fact that we were too free procedurally. And so things went until, I think, 1938, and then after a great deal of time had been spent by the very best brains of the profession, the Supreme Court finally did give us the present federal civil rules.

Well, we haven't had a very long time under those and they have, naturally, as one would have expected, developed some weaknesses here or there. There are some amendments going into effect - I've forgotten when, but within the year. Now, in that all distinctions are ruled out, even procedural distinctions. There is but one action, and the judges give whatever remedy they think the parties are entitled to.

There are people who think that that has had a bad effect - I think more of them think it will have than think it has yet developed - because they say that it will tend to crystalize equity. which has always been free to adapt itself to the conditions of the particular case, and will tend, therefore, to give it the supposed stiffness of a legal system. Well, that may be true. Of course that rests in futuro. Perhaps I ought not to suggest any purely speculative considerations, because I can't prove them, but I will tell you what I think about that, because it does seem to me that the issue here is somewhat misconceived.

It, of course, was true, as probably most of you know, that this distinction between equity and law is all historical. It came very early. I am not much of an historian to tell you, and probably you've heard all of this before and you know it better than I, but

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