the constitution, the conflict ought to be avoided, because there is a possibility in such a case of the constitution being on the side of the legislature.

If this act therefore involves principles as evidently unconstitutional as the case I have stated, I shall say so, and at the same time feel perfectly tranquil under the clamour or the consequences which may result from such a decision. If on the other hand, the 4th section of this act, or the parts of it which have been particularly alluded to, can be placed in alliance with the constitution; or if it becomes a matter of difficult solution whether that section is or is not reconcilable with the constitution, I shall then feel much gratification in escaping from a combat with legislative authority. This section of the act declares" that neither of the aforesaid courts shall issue out any civil process or try any civil case, except for the trial of the right of property, real and personal," &c. This act expires on the 25th of December next. Mr. Berrien says, that this section of the act is unconstitutional, because it inhibits a citizen from taking advantage of the trial by jury under the usual and regular administration of justice, and because it interferes with the sittings of the superior court, which are directed by the constitution to be held twice every year in each county.

Mr. Noel says, that this section of the act, or the whole of the act is unconstitutional, because it impairs the obligation of

contracts.

The first objection may, I think, be answered very laconically. The trial by jury is not taken away by a bare postponement of the trial of cases in which the interposition of a jury may be required. The positive and unqualified deprivation of a right, is surely different from the temporary delay of the enjoyment of that right. A denial of a right, legally speaking, is an unlimited prohibition of its enjoyment. If the right is not annihilated it exists. Now in the case under discussion, there is no express inhibition of the trial by jury, and therefore agreeably to the positions I have before suggested, if the denial of the right of trial by jury is not the clear and explicit VOL. II. N

language of the act, the judicial department will not resort to finespun deductions to find out the violation of that, or any other constitutional franchise. As a conclusion to this objection, I am then of opinion, that so far from taking away the right of the trial by jury, this act acknowledges the unimpaired existence of that right, and only affects the trial of the cases for a definite period.

The second objection may have its weight in the opinion of the learned gentleman who urged it, but with me it has none.

The constitution merely declares, that "the superior and inferior courts shall sit in each county twice in every year, at such stated times as the legislature shall appoint." 1st sect. 3d art. This act does not interfere with the sittings of the superior court in each county every year. If the legislature had declared that the superior court should not sit at all for the term of one year, or that its sittings should be held only once in each county for the term of a year, under such a prohibition the act would be pronounced unconstitutional: but how can the idea of the business which is properly cognizable in the superior court, be identified with the sittings of that court? To me there appears as wide a difference between the sitting of the court (which the constitution must mean an opening of the court) as there is between the action of trover, and the daily adjourning proclamation of the sheriff. The constitution is silent as to the manner in which the business of the court shall be managed and conducted, the process that shall be issued, the service of that process, or the periods at which cases shall be tried. All this is left to legislative wisdom; and however much I may doubt and deny the policy, the necessity, or the justice, in interfering with or prescribing distant periods for the trial of actions, under any combination of circumstances, yet I am compelled by official duty to say, that the discretionary exercise of this power is not meddled with by the constitution, and that it is therefore a portion of that residuum of authority retained by the people, and may be exercised by the legislature.

Again: It is said this act impairs the obligation of con

tracts.

The tenth section of the first article of the federal constitution declares, that no state shall pass a law impairing the obligation of contracts. What is meant by the terms "impairing the obligation of contracts?" Any measure, I should suppose, which lessens the value of contracts, that gives them a diminished dignity, takes from them any of the properties of contracts, or which devests them of that priority of lien, obligation, or recovery, which they would otherwise possess. This impairing of contracts must mean their partial rescindment by legis lative authority. This act therefore, as it does not innovate upon the obligation of contracts, either by a partial rescindment, by destroying any of the properties of contracts, or by diverting the usual operation of the lien, cannot be said to impair the obligation of contracts. The usual periods at which contracts were heretofore enforced by action are protracted: the facilities of recovery have been suspended. But does this impair the obligation of contracts? Certainly not. Their obligation remains entire, and a bond or covenant is as valuable, and on the score of obligation, is as operative now, as before the passing of the act.

Under these impressions of the objections I have thus noticed, I am therefore of opinion (bottoming my opinion upon those specific objections) that this act is constitutional.

2dly, The second ground of the motion now demands investigation; and the question it involves is, whether under our system of laws, an EQUITY CASE can be denominated a CIVIL

CASE.

There can be but this division of cases: 1st, Criminal; 2d, Civil.

Criminal cases are those which involve a wrong, or injury done to the republic, for the punishment of which the offender is prosecuted in the name of the whole people.

Civil cases are those which involve disputes or contests between man and man, and which can only terminate in the adjustment of the rights of plaintiffs and defendants.

It is said however that a critical examination and collation of our statutes establish another class of cases, to wit, equity cases, as contradistinguished to criminal and civil cases. I have taken infinite pains to trace in our laws the lines of distinction between an equity and a civil case; but without adopting implicitly the inferences of the gentleman who contends for this distinction, I can see nothing in the plain letter of the law. which creates it.

The argument I think stands fairly thus. The constitution gives to the superior court, exclusive and final jurisdiction in all criminal cases, and in cases respecting the titles to land: article 3. section 1.

Here then is one distinction between criminal cases and that class of civil cases relating to real property. The inferior courts shall have cognizance, "of all other civil cases:" same art. 1 sect. Here then is another distinction between criminal cases, and "all other civil cases," cognizable in the inferior courts: and ex concessu of counsel there is nothing in the constitution which excludes the inferior courts from sustaining a jurisdiction over equity suits, under the sweeping clause of all "other civil cases." But the third section of the judicial act of 1799, is I think conclusive as to the scope and latitude which should be allowed to the terms "civil cases." It declares that the said superior and inferior courts, shall have full power and authority to hear and determine all causes, both civil and criminal of which they shall severally have jurisdiction. Now the term "civil," must evidently mean all cases (whatever technical appellation they may assume, in the shape of an action, or chancery bill) which cannot be legally denominated criminal cases. The 53d section of the judicial act of 1799, confers a chancery jurisdiction upon the superior courts. Therefore equity proceedings must be denominated civil cases, agreeably to the mode of classification adopted in the 3d section of the judicial act; and I may add that the terms "all other civil cases" used in the 1st section of the 3d article of the constitution appear to authorize a similar conclusion, for the constitution speaks of only two classes of cases, crimi

nal and civil cases; and it will not I presume be contended that the judicial department can take cognizance of cases which do not fall under one or the other of those classes; the conclusion is then irresistible, that if an equity case is not a civil case, the court has no authority to try it..

This is the dilemma we are are reduced to by establishing, or rather attempting to establish a distinction between an equity and a civil case. Upon the second ground of the motion, I am therefore of opinion that an equity case is a civil· case, and that this bill cannot be tried under the prohibitory provisions of the act of assembly, it not being a case relating to the right of real and personal property.

Motion overruled.

Georgia-Chatham County.

The State v. Asselin. Habeas Corpus. 1808.

CHARLTON, Judge.

THE prisoner has been arrested and committed, by virtue

of the following warrant:

"State of Georgia-Chatham County.

"To any lawful Constable of said County.

"You are hereby commanded to take the body of Charles Asselin, and bring him before me or any justice of the peace of said county, to answer to a charge exhibited against him by Lewis Mallet, for enveigling and feloniously carrying off the following named negroes, which the deponent was legally possessed of, to wit: Sophia and her son, a child; Benjamin, Delphine and her son; Muttpuin, Dubin, Antonia; in all eight negroes, and one horse, and bring him and the said negroes and horse, if found, before me or any other justice of the peace of said county, and this shall be your warrant. Given under my hand and seal, the 27th day of July, 1808.

"JOHN, POOLER, J. P.”