N.J. Constitutional Convention: Vol. 4, Page 417


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

it goes back to very ancient times when, in order to get access to the court, you had to be able to bring the facts of your case within a very limited number of what they called writs. Their origin goes back to an antiquity I know nothing about, but that's all you could get. If you couldn't get that you were without any relief, although the judges sometimes made those writs, squeezed those writs to fit - blew them up - cases that they hardly were meant to fit. But they really had to, in order to avoid the most obvious miscarriages. They couldn't obviate all miscarriages, by any means, and the Chancellors of the time intervened in cases. Originally, I think, they were very largely of a quasi-ecclesiastical character because, as you know, they called themselves the court of conscience, and they would give relief where it was pressing enough. Under that there arose, for instance, the whole system of trusts, as you undoubtedly heard here - out of this pressure upon the courts not to allow the most obvious injustices to go unremedied.

That went on; they were ecclesiastics, I think, down to, it seems to me, the first part of the 17th Century. I think Lord Bacon was the first who wasn't a cleric, a bishop or some sort of cleric, and from then on they gave some relief. They had no jury. Finally the complaint was quite strong, by the beginning of the 19th Century, that the Chancellors, too, were getting too rigid and were not pliable enough. Well, the law courts under the influence of Lord Mansfield, those of you who are lawyers know, developed a plasticity and flexibility which greatly shocked conservatives of the last quarter of the 18th Century and which gave us things which, I think, must have startled Lord Eldon on the other side of his shadow.

I think those are fairly good illustrations that by calling a man a law judge you don't give him arteriosclerosis and by calling him an equity judge you don't make him one of the discs which people see flying around. I think it depends very largely on the quality of the individual. If you are a person who has that happy balance, which a great judge has, of not attempting to act as a reformer or to substitute your own notions of public policy - I don't mean to suggest that any judges in this country could do such a thing; why, on the other hand, is he so afraid of trying to find out what the real purpose of the law is that he hides in a dictionary - if you've got that kind of a judge, you've got a judge who is fit to serve either in what we call law or what we call equity. They have really been part of the same system always.

Of course, it is true that if you divide your judicature into two parts and confine part of it to one branch of law and another to another branch of law, neither part will have familiarity or as much familiarity as it probably could have with the other. But for the moment, I suppose, we are discussing the question of whether it is beyond the capacity of one judge to be familiar, sufficiently familiar,


Previous Page in Book ********* Table of Contents *********** Next Page in Book