N.J. Constitutional Convention: Vol. 4, Page 589


MEMORANDUM OF G. W. C. McCARTER, Esq.


REVISED JUDICIAL ARTICLE NEW JERSEY CONSTITUTION AS PROPOSED IN 1944 BY STATE BAR ASSOCIATION COMMITTEE


SECTION IV The Supreme Court

(9) The numbers of 30 and 20 are more or less arbitrary. The Chancellor, Vice-Chancellors, Chief Justice, Justices of the Supreme Court, specially appointed Judges of the Court of Errors, who now are counsellors-at-law of ten years' standing, and Circuit Court Judges, when all places are filled, total 31. It is not contemplated to freeze any Common Pleas judges into the Supreme Court. When the new court gets going the Legislature may, if it appears desirable, provide for the appointment of more Supreme Court Justices, and a reduction in the number of Common Pleas judges in counties having more than one.

(10) We would not seriously object to inserting in the first line of paragraph 2, right after "Court" the words "shall have general jurisdiction throughout the State in all cases, and." Certainly the words vesting the jurisdiction of the constituent courts should be in. Their jurisdiction has become well established and known to the law. To take a complete fresh start would invite litigation. Why take the chance? Surely the words in paragraph 2 as written leaves no jurisdiction whatsoever out. No jurisdictional gap exists. So why add the words above quoted?

(11) Paragraphs 3, 4, 7 and 8 of Section IV present different phases of the same problem which will be all dealt with together in this note.

The problem is to establish a unified court which can do full justice in any one cause and at the same time to provide that certain classes of cases shall be assigned to specialists. The problem is to divide litigation between the divisions on sensible functional grounds based on convenience rather than history, and yet to make sure that each Justice of the Supreme Court before whom a case comes has jurisdiction and power to decide the whole controversy. The problem is substantially the same as that which confronted the draftsmen of the English Judicature Acts. They succeeded so well that their language has been used as guide. By paragraph 3 the Supreme Court is divided into a Chancery Division and a Law Division. Note the words: "For the more convenient dispatch of business." They are taken from the English act, and show the purpose of the paragraph to be convenience rather than jurisdictional. Paragraph 4 says that the Chancery Division "shall exercise" the jurisdiction of the Court of Chancery and of the Prerogative Court, and the Law Division all the remaining jurisdiction of the new Supreme Court. It contains, however, the words, "subject to the provisions hereof." The language is not that the Chancery Division shall "have only" or "be vested with" the jurisdiction of present Chancery and the Prerogative Court, and the Law Division the rest. It is that "shall, subject to the provisions hereof, exercise" the jurisdiction. Prima facie a case which would now go to


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