N.J. Constitutional Convention: Vol. 4, Page 449

Thursday, July 24, 1947 (Morning session)

of departing from the legal tribunal and going into equity. I think this criticism has been unduly emphasized. I think it occurs only in isolated instances, and I am impressed by what was said by Mr. Josiah Stryker in his argument for the retention of the Court of Chancery, that the occasional inconvenience of having questions of equity which arise in a law action determined in the Court of Chancery is by no means as important as it is to have such questions determined by a judge who spends his entire time in the consideration and determination of equity cases. In other words, it would be folly, in my opinion, to wreck a system which has so many virtues simply because it may have this one defect.

Before our time is used up, I should like this Committee to hear a younger member of our bar in Monmouth County, Mr. Frederick Lombard, who had the good fortune to be legal assistant to the late Vice-Chancellor Buchanan and then to the present Vice-Chancellor Jayne, and he will be able to tell you in more detail than I how infrequent over the course of a year and a half or two years' experience in dealing with equitable problems, how infrequently did the question of the intervention of equity and the consequent delay arise.

Now, I have said that I feel that this objection is not worthy of weight as against the paramount considerations which ought to actuate us in keeping the Court of Chancery. But at this point may I venture a suggestion, and I say venture because I am frank to say that you gentlemen will determine the possibility and the legality of what I am about to suggest: If there be this criticism of the conflict of law and equity jurisprudence, particularly in questions of title, would it be feasible to provide in the Constitution that questions of title would be determined in the court of equity? There are other instances in which jurisdiction over a given type of action is transferred from one court to another. It was suggested when the Revision of 1944 was proposed that matrimonial causes should be transferred to the law court. I don't say I would approve such a suggestion. I would not. But nevertheless, it apparently could have been done, and so if our Judiciary Article were to provide that the jurisdiction of the Court of Chancery should be as heretofore, with the additional jurisdiction over matters involving title to real property, any criticism of those who say that this confusion arises and delays the course of justice would have to vanish.

Further, I feel that I should try to answer those who say, "Well, why not have a separate Equity Division; why retain an independent and separate Court of Chancery?" My reasons are these - and when I say "my," pardon me; I mean the views of our bar association are these - that the Court of Chancery is particularly, as we know, a court of conscience. It only arose in ancient days in Great Britain because of the inadequacies of the law to reach and

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