Page:Harvard Law Review Volume 9.djvu/558

530 530 HARVARD LAW REVIEW. tied system of procedure under which the accused was entitled to a jury trial. Of such acts equity had never taken jurisdiction. The Constitution adopted provided that the right to a jury trial in both criminal and civil cases should remain as then existing. Can equity subsequently be given statutory power to enjoin the acts, and, without the intervention of a jury, punish as a contempt a violation of its injunction? It is probably true that the constitutional provisions cited do not prevent all statutory enlargement of equitable jurisdiction. The Constitutions are instruments of government, in the construction of which many things must be taken into account. When they were first adopted the States were comparatively young, and the society for which they were framed much less complex than now. Many questions of judicial procedure, and of substantive equitable and legal rights, v*^hlch had not then arisen, have since become of importance, and other like questions will arise in the future. These questions the courts or the legislatures have been, and will be, called upon to settle. We should take quite too narrow a view to hold that in no case can equity take or be given a jurisdiction which the colonial or territorial courts had not asserted. The guaranties of "due process of law" and of ''jury trial" had reference not merely to the incomplete and undeveloped systems of law which the local courts and legislatures had so far found sufficient for their needs, but to the whole body of law and system of procedure which the colonists brought from England, and which ever since have formed the basis of the judicial systems of the States. That at the time of the adoption of a particular constitution the courts or legislature had neglected or refused to extend the jurisdiction of equity to all cases to which it had been extended in England, does not necessarily prevent such extension in the future. Nor need the jurisdiction always be as limited as it may have seemed to be in England at the time of the Revolution. That equity had refused to act in certain cases of the same general class as those with which it commonly dealt, was often largely accidental. Such self-imposed limitations might be removed by a later and more enlightened chancellor, or might be abrogated by statute, without any real change in the nature of the jurisdiction. If the court of its own motion or prompted by statute moulds Its jurisdiction to a developing civilization by taking cognizance of and extending Its protection to new rights analogous to those which it has before protected, it cannot be charged with usurpation of powers. Nor