N.J. Constitutional Convention: Vol. 4, Page 532


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, July 30, 1947 (Afternoon session)

making conscientious decisions, he should have the sole say.

The Chancellor, particularly, insisted that this Court of Chancery was a court of conscience and that we should not meddle with its conscientious functions. May I say, because I don't think the point has been answered, that all that is pure nonsense? The phraseology is drawn from the Middle Ages. It's a disfigured remainder of what was said about the court in the 14th and 15th Centuries when it was, in fact, a Court of Chancery and a court of conscience. That is, the conscientious dictates of the Chancellor determined the decisions, rather than any settled body of principle or custom. I wonder what the advocates of a retained and isolated Court of Chancery, who insist that we must preserve the principle of specialization, would say if asked how they justify specialization in terms of conscience? Manifestly, one's conscience is not a matter of specialization. The whole thing falls to pieces on analysis. If the Court of Chancery were a court of conscience, then each succeeding Chancellor would decide matters before him as his conscience told him to and we would have no body of equity jurisprudence whatsoever, because jurisprudence is a science fixed by rules and principles.

A publicist of the 17th Century, John Selden, I think, illustrated it very aptly in a few words. As I recall it, what he said was this: "Equity is a roguish thing. For law we have a measure, but in equity the only measure is the conscience of him who is Chancellor, and as that conscience is large or narrow, so is equity. It's all as if we called the measure a Chancellor's foot." Now, that's not modern equity. Modern equity began with the introduction to the Court of Chancery of a well-known institution, the court stenographer. Under Lord Nottingham, in the latter part of the 17th Century, Chancery had its first court reporter. After that, under a series of able Chancellors, they developed the foundation of our modern equity which is administered here in New Jersey by our Court of Chancery, - a jurisprudence based on principle and precedent recorded in these reported opinions of the Chancellors. Oh, that's a far cry from the medieval conception of a Chancellor sitting as the conscience of the court and administering what he conceives to be the conscientious necessities of the case brought before him.

I go back into the historic background actually to show the absurdity of the claim, and I close with a practical illustration, because it doesn't require very much imagination, after all, to discover that a court of conscience isn't a practical thing. The title has a certain invidious application to the Vice-Chancellors and Advisory Masters. Apparently they are not supposed to have consciences, but only the Chancellor. I would recall now, and I think it is well to repeat them to this body, the words in which that grand old man of the bar, Bob McCarter, replied to our most brilliant advocate, Merritt Lane. Mr. Lane was arguing before our State Bar the very


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