N.J. Constitutional Convention: Vol. 4, Page 418
with both if he administered both. Well, it's very hard, as I have already said, for a person who has been so long as I have in one system to judge of that, and if I tell you that it does not seem to me that there are difficulties there, you must take that for what astronomers call my "personal equation." And I may be wrong, but I can only give you the testimony that I have. I don't even think that under this extremely loose procedure that has now come in force under the federal rules there is any danger of that confusion, for the reason I have tried to say - if there is any danger that equity will lose its adaptability (I like that word a little better than flexibility, but they mean the same thing), I think both will.
The Chancellor, after I came in, suggested that he had heard that an objection had been made that our system deprived people of the right of trial by jury. It may be that it has resulted in fewer jury trials; I think that is possible. Of course, it is true that a person not aware of the rules and who has not claimed his jury will lose his jury. That has been known under the federal system and is the penalty of a mistake by the lawyer if he doesn't know his law. But that is his own fault. There is nothing that deprives him of it. It is rather curious that I happened to have brought here an opinion of my own court. I wasn't in it. It is very recent on that very question and shows, I think, that the criticism is not quite fair that under the federal rules you are in danger of losing your jury. I won't read it to you. Judge Frank wrote it. It was a patent case where the plaintiff wanted an injunction, and those of you who are lawyers know that he had at that time no right to a jury trial. And why was he going to get an injunction? Well, it was a case in which the Judge Advocate-General during the war sent word to the Attorney-General asking him to make representation that it would be prejudicial to the public interest to have the case tried during the war. So they didn't try it until after the war. By the time they got to it the patent had expired, so you couldn't get any injunction. All you could get then was damages. Well, the plaintiff hadn't claimed his jury, and the reason he hadn't claimed his jury was that he wasn't entitled to it. But after he found he had lost his right to an injunction, he wanted a jury trial. He claimed it and the court held that he was entitled to it, that he had not lost his right to a jury trial because at the time when the question first came up he did not have - well he didn't have a right to it.
I only instance that because I felt perhaps sensitive when I heard the Chancellor say that we might be insensitive to right of trial by jury. That, of course, must remain as a distinction between equity and law, and the reason why it must remain, as you well know, is because the Constitution requires it. We can't avoid it. Why should you not have a jury when the remedy you ask is an injunction? God only knows, there is nothing but an historical reason.
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