N.J. Constitutional Convention: Vol. 4, Page 71
expert decisions. Now, that argument, in its presentation today, will exhibit at least one outstanding deficiency. The Chief Justice and the lawyer members of the Committee will certainly recall Maitland's dictum that the law is a seamless, endless web, and yet there are at least four major branches of judicial business: criminal cases, the broad field of civil litigation, probate administration and miscellaneous jurisdiction.
Almost everyone who will urge retention of the Court of Chancery will be quite willing that all other courts should be merged into one so that there will be this one court for criminal business, all remaining civil business, all probate and all miscellaneous business. And yet, what benefit, what advantage, or what logic can there be in isolating one segment of one branch, namely, equity law, and creating or maintaining an independent body to administer that alone, while all other judicial business is merged into a single court?
There is another feature of the argument in favor of specialization of judges which is particularly interesting to me. It seems the advocates of this point of view prove either too much or too little. Let the Committee consider, for example, that the Court of Chancery, in one form or another, has been in existence over 800 years. A survey was recently made of the latest published volume of Chancery decisions. A full one-third were concerned with controversies over jurisdiction as between the Court of Chancery and the courts of law. The conclusion is that after 800 years, litigants still have to pay in time, money and delayed justice for the piecemeal determination of their causes by the Court of Chancery and the law courts, case by case, in 1947. Just what the correct boundaries of their jurisdictions are is still questioned.
Arguments in favor of specialization also assume that the Court of Chancery deals with specialized subject matter. In the main, the Court of Chancery deals with the same subject matter as law courts - for example, contracts, property, personal and private rights, and the like. The chief difference between the courts concerns the remedy, not the subject matter. If it is damages you want for breach of contract, you start in the law court. If you want an injunction or decree for a specific performance, the Court of Chancery is the place to go. Thus the specialists would not specialize in the substantive phases of a case, but only in knowing just when there ought to be an injunction rather than a verdict for damages.
As a matter of fact, Lord Chancellor Loreburn, visiting in this country some time ago, when asked to comment on how the bar and people in England regarded the merger of their court system, had something to say which bears out this particular point. What he said was: "No one has ever doubted the wisdom of this change, and its practical benefit is simply that a litigant can no longer be tossed
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