tled 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, which 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

should a statute authorizing or directing such an enlargement of jurisdiction be held invalid. It was the system of equity as a whole, considered broadly with a view to its main fundamental principles, and with all its possibilities of legitimate development and growth in accordance with those principles, which was a part of the "law of the land" contemplated by the Constitutions.

But it by no means follows that equity can, with or without a statute, extend its jurisdiction without limit. Chancery is a civil, not a criminal court; a court for the protection of civil rights of property, using the term broadly, not for the prevention of assaults to the person, or for the enforcement of the police regulations of the State. These distinctions have always been fundamental. The chancellor cannot constitutionally enjoin the commission of a crime as such, without reference to its effect upon property rights, as a judge at circuit cannot constitutionally try a prisoner for murder without a jury. And statutes authorizing either would be equally invalid.

In Massachusetts itself, in ordinary civil proceedings, it is settled that the court in exercising an equitable jurisdiction given it by statute must preserve the right to a jury trial as to all issues previously so triable by the course of the common law. Thus in a statutory creditor's suit brought before judgment recovered at law, the defendant was held entitled to the verdict of a jury upon the issue of his indebtedness to the plaintiff. Field, J., says: -

"It is plain that the question whether the Raymonds are indebted to the plaintiff for goods sold and delivered is a controversy concerning property, which, when the Constitution was adopted, had been always tried by a jury in Massachusetts since the Province Charter, had been usually so tried before that charter, and had been so tried in England; that it is not a case in which a trial otherwise than by jury had theretofore been used and practised, or a case in its essential features unknown to the jurisprudence of the Province and the State at that time. The remedy which the plaintiff seeks is substantially the common law remedy. He seeks to establish his debt against the Raymonds, and to have it paid out of their property, which he alleges they have conveyed to Salmon by a conveyance which is fraudulent and void as to him. The rights sought to be determined and enforced are essentially legal, as distinguished from equitable rights. The statute has changed the mode of procedure, but it would be trifling with the Constitution to hold that, by changing the forms of procedure, the substantial rights declared by it can be taken away. In all controversies which are within the purview of that article of the Declaration of Rights, the 'method of procedure' of a trial by

jury must be held sacred, whatever the other forms of procedure may be." 1

The same principle was stated with reference to statutory extensions of the jurisdiction of courts of admiralty in United States v. One Hundred and Thirty Barrels of Whiskey,2 as follows:

"And it is too clear to admit of doubt that, if these are cases at common law, they are within this clause of the Constitution, and the parties are entitled to a trial by jury. It is equally clear that Congress has no power under the Constitution to deprive a suitor of this right, by declaring that a case not properly within the jurisdiction of the admiralty shall be treated and dealt with according to the known principles of courts of admiralty."

The same principle was by implication at least approved in United States v. Debs. Judge Woods, in sustaining the validity of the fourth section of the Anti Trust Act of 1890,5 authorizing injunctions against violations of the act, held that the case was one of equitable character, and that within the proper subjects of equitable cognizance, as established when the Constitution was adopted, it was competent for Congress to vest the court with the equitable power granted. And the Supreme Court in sustaining the jurisdiction of the court preferred to rest its decision on the ground that apart from the statute equity could at the suit of the government enjoin an interference with the highways of interstate commerce. As has already been suggested upon the facts of a particular

1 Powers v. Raymond, 137 Mass. 483, 485. See also North Pennsylvania Coal Co. v. Snowden, 42 Pa. St. 488; Haines's Appeal, 73 Pa. St. 169, 171.

2 1 Bond, 587, 588.

8 Compare City of Janesville v. Carpenter, 77 Wis. 288, where a statute prohibiting the driving of piles or building of pier, etc. in a certain river provided that “ the doing of any such act should [shall] be enjoined at the suit of any resident taxpayer without proof that any injury or danger has been or will be caused by such act.” No question of rights to navigation being involved, the court held the statute unconstitutional, and refused to enjoin such erections by the owner of the soil. They say, at p. 299: “The legislature would have saved time and expense if it had issued the injunction in the case for which the act was made. This is the first time that any legislature of any enlightened country ever attempted to create an action without any cause of action, to authorize a complaint to be made to a court where there is nothing to complain of; to compel the courts to enjoin the lawful use and enjoyment of our own property 'without proof that any injury or danger has been or will be caused by reason of such act'; ... or to adjudicate and decide the case, and then order and compel the court to execute its judgment by issuing an injunction."

64 Fed. R. 724, 753. 6 In re Debs, 158 U. S. 564.

526 U. S. Stat. 209.

case, a liquor nuisance might work such an injury to either public or private property rights that it could be enjoined without statutory authority. And if the court refused to act because of the slight nature of the injury, it might perhaps constitutionally be authorized and directed to do so if some injury in fact existed. But there need be no injury at all, and the liquor nuisance statutes neither require nor contemplate proof of any such injury, actual or threatened. They are obviously not aimed at the protection of property, but at the prevention of crime, and by a method which, it seems, cannot constitutionally be employed.

The decisions sustaining the acts seem to have failed to draw the distinction between a use of property causing an injury to property which can be enjoined, and a use which is merely illegal, but so far as civil remedies are concerned works no injury and can afford no cause of action of a civil nature. They seem also not to discriminate between the public nuisance of the criminal law, which may consist of the doing of any illegal act which the statute declares to be a nuisance, and the public nuisance to property of which alone equity has taken or can take jurisdiction.

Arthur C. Rounds.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

HON. CHARLES DOE, Chief Justice of the Supreme Court of New Hampshire, who died suddenly on March 9, 1896, was a valued contributor to this REVIEW, being the author of "A New View of the Dartmouth College Case," 6 HARVARD LAW REVIEW, 161-181 and 213-222; and "Lease of Railroad by Majority of Stockholders with Assent of Legislature," 8 HARVARD LAW REVIEW, 295-316 and 396-414.

His official tenure was almost unique. Appointed to the Supreme Bench in 1859 at the early age of twenty-nine, he continued there, with the exception of two years (1874-1876), until his death at the age of sixty-five; thus passing more than half his life in the discharge of judical duties. Judge Doe's reported decisions have given him a deservedly high reputation outside the limits of New Hampshire, and some of them have seldom been surpassed. But his extraordinary ability was fully known only to those who came in personal contact with him as practitioners or associates. The rapidity with which his mind worked was simply marvellous, vividly recalling the discriptions given of the late Master of the Rolls, Sir George Jessel. The moment a case was stated, he could generally discern at once the vital issue; and was usually able, as soon as the case was submitted, immediately to express an opinion in short, crisp sentences, which not only completely disposed of the matter in hand, but caused everybody to wonder how there could ever have been any doubt about the result. In keenness of analysis and in the faculty of terse and vigorous expression he combined qualities of the highest order, which are not often found united in one person. A few of his written opinions may be open to the objection of over-elaboration. But there was never any obscurity or prolixity in his oral utterances, and a large proportion of his reported decisions are models of condensation and clearness.

In a humorous sketch read by a bright young lawyer before a Bar Association, Doe, C. J., is represented as rendering a certain decision and giving as the sole reason "that the law has hitherto always been under