N.J. Constitutional Convention: Vol. 4, Page 431


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

I would hope that that would give to the members of our General Court not only the unique experience that comes to a trial judge, but also the very important and entirely different type of experience that comes to a man who is called upon, in the absence of witnesses, to review a record and to make the kind of decisions that are required to be made when causes are brought from a trial court to an appellate court on appeal.

With respect to form, I cannot stress too strongly that, in my judgment, the Supreme Court should be given substantial rule-making authority. To the extent that we ascribe certain virtues to our federal court system, they may, perhaps, be found in the rule-making authority of the United States Supreme Court. I am constrained to believe that if, in the past, the members of our highest court had had greater rule-making authority and had not been burdened by the many duties that have, I am told, been described to this Committee and therefore need not now be again described, justice would have been dispensed perhaps not better but certainly more quickly.

Whether a man should be permanently assigned or temporarily assigned to hear a specific type of cause should, in the final analysis, it seems to me, be left to the judgment of the responsible head of our judicial system. He will very quickly learn to know his court - not only the several capabilities of the men with whom he serves on the top court, but, as a result of his review of appeals he will quickly come to know the varying talents of the trial judges. And he and his associates, better than anyone else, or any other group, will be in a position to determine whether a man or a woman, or men or women, should be permanently assigned to a particular division or whether they should be temporarily assigned for an experimental period.

I cannot speak of form without speaking of the need for flexibility. During the 13th and 14th Centuries, as you so well know after your current course in constitutional law, there developed a recognition that the King's Court was either not in a position or unwilling to dispense complete justice. The law courts of that day found themselves in a straightjacket, perhaps of their own making. Rules and laws, or the lack of the same, prevented them from doing complete justice, and it was for that reason, among others, that the Court of Chancery developed. Originally, the Court of Chancery was nothing more or less than the King's conscience, as you know. May I submit to you that over a period of many years, Courts of Chancery have tended to follow pretty much the same tradition that the King's Court followed prior to the inception and, in some cases, subsequent to the inception of the Court of Chancery. Their rules were formalized. They were constrained in many instances to follow precedent.


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