N.J. Constitutional Convention: Vol. 4, Page 508
tens of thousands of references to that court and to its jurisdiction as it now exists, in the some 130-odd bound volumes of the New Jersey Law Reports. Ever since 1798 at least, the Supreme Court of New Jersey has had a rather fixed jurisdiction. Carrying this name over to a new court which, according to this Judiciary Article, will have pretty much the same general jurisdiction, with others added to it, will, I think, result in unnecessary confusion both to the court and lawyers.
While I am talking on that, I would like to digress from my notes for a moment to say there has been a great deal said about the layman not knowing which court his case should be referred to. I submit, gentlemen, there can be no argument that this should be of any real concern of the layman. When he goes to a doctor, is the layman to prescribe the treatment or diagnosis the ailment? The choice of the court is the obligation and the function of the lawyer, and that is the purpose for going to the lawyer. The lawyer knows, or should know, the right court in which to take the case. I think that this argument is not a very sound objection to the present system.
However, there is no sound objection, I think, to reducing the size of the court of last resort, if we are going to say that that seems to be the stylish think to do. But it doesn't necessarily follow that seven men will more often be right than 16 have been in the past. Perhaps, from a purely psychological point of view, it might be very well to reduce the size of the court in order to put a stop once and for all to the uninformed layman's catch phrase that our present Court of Errors and Appeals is the largest of its kind - too large to be a jury and too small to be a mob. Perhaps, if we can amend the present Judicial Article of the 1844 Constitution and reduce the size of this court, this sort of talk will stop and we will be able to get along and pursue the ordinary tenor of our ways. My only suggestion is that perhaps nine members, like the United States Supreme Court, might be better than seven members. But in the long run, since the quality of the court is dependent on its individual members rather than upon their number, I suppose seven is probably just as good as nine.
Now, this paragraph provides that five members shall constitute a quorum. My question is, how many are necessary to a decision? In New York, the constitution specifically provides that the concurrence of four of those five shall be necessary to a decision. Now, under the draft we are discussing it is possible that three, or less than one-half of the total membership of the court, can determine the law of this State. I don't think that is intended, but who can say that it won't happen that way if this language is left unchanged?
With respect to the appointment of temporary judges, the ques-
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