N.J. Constitutional Convention: Vol. 4, Page 68

Wednesday, June 25, 1947 (Morning session)

considered as the whole court. By the 15th Century England had a High Court of Chancery presided over by the Chancellor who had, in addition, the other functions I spoke of.

Incidentally, you may wish to know the paradox in this historical development. It was the King's Chancellor, who was in charge of issuing the very writs under which the law courts functioned. It has always been an historical question why, particularly after the act of Parliament in 1285 which directed the King's Chancellor to liberalize the writs of action, the Chancellor failed to do so, and thereby brought about the very situation which gave rise to the separate court over which he presided.

There is one other feature of this development, and it is the controversy which developed between these two rival court structures, namely the Court of Chancery on the one hand and the courts of law on the other. The contest became very bitter and, occasionally, bloody as well. However, in 1614, in the reign of King James I, the decision in the famous controversy between Chancellor Ellsmere and Chief Justice Coke was finally decided in favor of the Chancellor and, specifically, the Chancellor's right to enjoin law courts was settled by a royal ordinance.

Now, just about the time this conflict was being resolved in England, the American colonies had their start. As you will recall, of the ultimate 13 American colonies, only five had independent courts of chancery, and New Jersey was not one of the five. The Governor was Chancellor ex-officio, and that same duality of function was carried into the first State Constitution of 1776. An independent Court of Chancery, in the person of the Chancellor, was created in New Jersey for the first time by our Constitution of 1844. That is important because it is commonplace to assume that the independent Court of Chancerry in New Jersey has a very ancient history. In point of fact, it dates back just a little more than a century.

Just about the time the 1844 Constitution was being adopted, New York was arranging to hold its own Constitutional Convention of 1846. While New Jersey was creating an independent Court of Chancery, New York, which had had an independent Court of Chancery right along, proceeded to abolish it and merged all its courts into the type of court Mr. Jacobs discussed.

Now, here were two contemporary models for the other states and territories to consider, and the fact is that New Jersey's model was not followed, and New York's was. It became the standard for the judicial structure of other states and territories until at the present time there are only three of our 48 states which, like New Jersey, have an independent Court of Chancery.

About the time we were holding our Constitutional Conventions in New Jersey and New York, in the 19th Century, a movement for

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