N.J. Constitutional Convention: Vol. 4, Page 684


LETTER OF JUDGE GUY L. FAKE
(Copy of letter sent to President Robert C. Clothier by Augustus C. Studer, Jr., Esq., June 16, 1947, and referred to the Committee on the Judiciary.)

vice-chancellors felt they were in a position to hold the federal judges and their officers in contempt. We, on the other side, were equally as certain that we were empowered to hold them in contempt. The situation thus presented was serious not only because of the conflict of jurisdiction it raised but also because titles to property were left in great jeopardy.

As long as I live I shall remember with gratitude the fine spirit of moderation and tolerance which was manifested by each of the vice-chancellors. To them, as to us, the importance of the impasse and the duty of maintaining the dignity and the jurisdiction of our respective courts were impelling. This resulted in numerous conferences with the vice-chancellors and the settting up of an open forum to receive the views of members of the bar. Vice-Chancellor Backes wrote me in longhand an exhaustive scholarly letter on the subject at did several others of the vice-chancellors. There never was any doubt in my mind but that the vice-chancellors were right in principle and I so held. The difficulty was I was called upon to give full effect to a statute, the Bankruptcy Act, which had been so construed as to result in a contrary conclusion to that of the vice-chancellors. By mutual effort and forebearance and in the absence of any acrimony whatever, we finally had the issue so framed as to go to the United States Supreme Court and we each stayed our hands to await results. The Supreme Court decision sustained the position I had taken but that is not my point. What I want to emphasize is this: So well reasoned were the written opinions of the vice-chancellors that shortly thereafter the Congress of the United States amended the Bankruptcy Act to conform with their views and Chancery evolved with a victory. This, in my opinion, would never have happened in the absence of thought which was free to germinate in the minds of men who were experts in equity and the end result is perfect.

Some years ago it was my good fortune to be associated with some of the leading members of the Canadian Bar. Visiting Montreal on one occasion, Hon. C. H. Cahan, E. C., late Secretary of State for Canada, pointed out to me, in his law office, a complete set of our New Jersey Equity Reports. He told me that not only in Canada but throughout the entire British Empire, the New Jersey Equity Reports were considered of invaluable service in considering modern problems in equity. I can see him now as he stood before the stack and said, "You in New Jersey have certainly perfected yourselves in equity far beyond any of the rest of us."

The question of the continuance of our Court of Chancery as a separate entity in our judicial system is, it seems to me, of greater importance than any of the other questions to be considered in our proposed constitutional revision. I say this because the dynamics underlying the urge to destroy this court and wipe out the dignity


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