N.J. Constitutional Convention: Vol. 4, Page 544
Anyone else other than Mr. Davis?
MR. DAVIS: I may say now that the speakers who have intervened between my first round and second round have said a great many things that I will be able to skip, and thus shorten my contemplated time before you.
Section III, paragraph 3, is where we left off. This language practically amounts to a merger of the Court of Chancery with the law court, a system which, as other speakers have pointed out, while it works doesn't work well by reason of the fact that in the course of the amalgamation the equity jurisprudence in its true sense is stifled and its growth restricted and strangled. That has been the experience in the other states, and that's the reason why they so frequently must refer to New Jersey citations in support of an equitable principle - because we have been able continually to develop, whereas they have grown stagnant in many instances. That stagnation of equity jurisprudence, incidentally, unquestionably does work a great damage to the whole system of justice.
Section III, paragraph 4: You have here language which provides that each division of the General Court may exercise the powers and functions of the other when the ends of justice so require. It seems to me that some clarification is necessary, because "the ends of justice" may become a phrase which is as flexible and as subject to criticism as the old phrase, "Equity is as long as the Chancellor's foot." In England, ever since the Supreme Court of Judicature Act in 1873 and the numerous amendments to that act, the British have tried to reach what I believe to be an unattainable ideal of merging law and equity. The British courts and lawyers and public, incidentally, are today still having a great deal of trouble in trying to find out what the comparable language in the Supreme Court of Judicature Act and its various amendments really means. They are still litigating the question. This language, too, I suggest, may conflict with other provisions in the Constitution with reference to the right of trial by jury.
One more word on the specialization of equity judges. Of course, it is true that equity judges are not born. They are made, and that is true also of law judges, and the fact that we have had the specialization both on the law side and on the equity side is the reason why our decisions, both law and equity, are looked up to with great respect by other jurisdictions. We have specialists on the law side as well as the equity side. This provision which would merge the two would undoubtedly hurt both systems, for the reasons stated by some of the previous speakers.
Section IV, paragraph 1: As I said before, the appellate jurisdiction of the highest court, the court of last resort, ought to be set out with great particularity so that there be no question or possibility of question arising as to when matters may be appealed and
Previous Page in Book ********* Table of Contents *********** Next Page in Book