delivered the opinion of the court.

The Circuit Court of Clay County, at the September term, 1880, met, organized, and adjourned sine die, without the transaction of any business, the presiding judge being moved to this course upon the petition of the members of the bar-and many prominent citizens from different portions of the county, who represented that, owing to the incessant and protracted rains, which had prevailed for many days, there existed great backwardness in gathering the crops, and that the public interests would be promoted by an omission to hold the court. The relator, who was at the time confined in jail under an indictment for murder, by his counsel objected to the adjournment, *361and demanded to be put upon his trial. The adjournment was had despite his objections. He thereupon sued out this writ of habeas corpus, demanding to be set at liberty. The chancellor refused to discharge him, but admitted him to bail under proof as to the circumstances of the killing which, ordinarily, would not have entitled him to it. Declining to give the required bond, the relator brings the case here and demands from us to be set at liberty.

The Constitution of the State requires that a Circuit Court shall be held in each county at least twice in each year, a provision intended for the benefit of all litigants, but especially for those deprived of their liberty under criminal accusations.

The judge who declines to carry out this constitutional requirement, when persons in prison are demanding its benefits, assumes a very grave responsibility, and one which should never be assumed save under such extraordinary circumstances of pestilence or other wide-spread and controlling public necessity as render it manifestly proper to subordinate private right to the public welfare. A judge has no right, upon such an issue, to consult the desires or interests of particular classes of the community, so long as there remains one prisoner in custody who demands to be tried, nor even to subordinate the rights of the imprisoned to the mere wishes of the entire community. There must be some grave public necessity to warrant the prolongation in confinement of those who' demand that speedy trial which the Constitution guarantees to the humblest citizen.

That the learned judge in this instance did not, in declining to hold the court, consult his own ease and wishes, but acted in obedience to his conscientious convictions of what the public interests demanded, we entertain no question. Whether the reasons accepted by him were sufficient to warrant the action taken, is not material to the present inquiry; for, whether sufficient or insufficient, the relator has, we think, in being admitted to bail, received every advantage that he was entitled to demand. It cannot be that an error of judgment on such *362a question upon the part of the judge amounts to a general jail-delivery, and entitles all the criminals in confinement to be set at liberty. Such a docti’ine would enable an unscrupulous judge practically to usurp the pardoning power, and give the same effect to the omissions of an indolent one. The utmost effect of a refusal on the part of a judge to afford a prisoner a trial when demanded at the time appointed by law, when no legal reason exists for a continuance of the case, must be very greatly to strengthen an application on his part for bail; and this benefit the relator has received.

The English Habeas Corpus Act, which did not contemplate the absolute discharge of persons availing themselves of it, but was primarily intended only to insure an opportunity to give bail, contained a provision that in cases of treason and felony, which were not by law bailable, the accused should be discharged if not indicted at the first term or tried at the second term after arrest, unless it was made to appear that the crown witnesses could not be produced. Hurd on Habeas Corpus, marg. p. 97.

Though our statute contains no such provision, the practice here is to discharge at the first term if no indictment be found and no showing made for a longer detention. Whether we would discharge at the second term, after indictment found, where the State had twice failed, without any legal showing, to bring the prisoner to trial, has not been settled by adjudication, and we will not decide until the case is presented to us.

The order of the chancellor is affirmed.