N.J. Constitutional Convention: Vol. 4, Page 729


North Harpswell, Maine 

July 29, 1947
 To the Committee on the Judiciary Constitutional Convention New Brunswick, N. J. Attention: Mrs. Gene W. Miller, Secretary


I wish that it were possible for me to appear at the public hearing tomorrow, but unfortunately I cannot. I am therefore taking advantage of your request for comment in writing.

First of all, may I compliment your Committee on the many splendid features of your tentative draft of the Judicial Article. The suggestions that I am about to make are the result of ten years' service as chairman of the Judicial Council and of two years' work as a member of the Constitution Revision Commission.

  • 1. The rule-making power by Section II, paragraph 3, is made subject to legislative control by the words "subject to law." The trend throughout the United States has been to confide the rule-making power to the highest court and to hold that court responsible for results. I therefore suggest the deletion of the phrase "subject to law."  
  • 2. While Section III, paragraph 2, is a long step forward in the right direction, I cannot but regret the failure to incorporate probate and criminal jurisdiction in the General Court.  
  • 3. Section III, paragraph 3, does not place any limitation, either minimum or maximum, on the number of judges who shall sit together in a part of the Appellate Division. I respectfully suggest that we should follow the federal practice of appeals before three judges, neither more nor less.  
  • 4. By Section IV, paragraph 1, clause (a), questions of constitutionality must go through the Appellate Division. This would be quite satisfactory if time limits were placed upon handing down opinions in the proposed appellate courts, but there is none. Is not a prompt decision on questions of constitutionality important enough to provide for direct appeal to the Supreme Court? It may be objected that to by-pass the Appellate Division will lead to the assertion of constitutional questions frivolously but every lawyer realizes that the court knows how to take care of frivolous appeals.  
  • 5. By Section IV, paragraph 4, the jurisdiction to review criminal indictments by certiorari seems to have been abolished. This would be a great misfortune to the private citizen, as has been demon-     

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