N.J. Constitutional Convention: Vol. 4, Page 53
ever, now that you have presented it, I might say for the benefit of the lay members that I do not think any of the lawyers will seek to preserve the distinctions Mr. Hannoch discussed.
I think we might decide on whether it is the sort of provision that should go into the Constitution. Bear in mind that we will recommend some new court structure, whatever it may be, and there will have to be some general provisions with respect to rules of practice and procedure.
I assume this will be contained within our more general problem. Are we going to say that we will leave to the court, or to the Legislature, power to promulgate rules of practice and procedure, etc. I don't consider that at the moment this requires special consideration in the Constitution. However, I think that at a later date we will have an opportunity to get into the technical procedures, and at that time consider whether we want a provision of that type in the Constitution.
COMMITTEE MEMBER: Mr. Chairman, may I ask one question? What provisions are there in the present Constitution that prevent the Legislature from enacting such a law?
MR. HANNOCH: There is nothing in the Constitution at all on the subject. That is the comment that I wanted to make - in this Constitution that you are adopting, you are going to say something to this effect: that the court, whatever the name of the court may be, shall have the same power now exercised by the Supreme Court. You may, by phraseology of that kind, carry into the new court system all the things that are now causing all the difficulty. As matters now stand, the Supreme Court's power over these prerogative writs comes down to it over a period of years - they are inherited from colonial days, carrying over the rights of the courts of England. If you continue in some court the same power that there now exists in the Supreme Court, we are afraid that some of the limitations which now exist will be carried over into them. We are therefore understood to say, specifically, that the Legislature should be given power to do whatever it wants with respect to prerogative writs, and that's the sum and substance.
There is nothing expressly in the Constitution that limits the powers of the Supreme Court at the present time. As I said, there has been carried over into that Constitution all of the rights that existed under the old colonial practice which, in turn, were inherited from England. The court itself could not create the right of appeal if it wanted to. The Chief Justice will undoubtedly talk to you at much greater length than I have because I think that he, himself, recognizes some of these limitations.
VICE-CHAIRMAN: The provisions you have here now have
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