Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1857-09-16
The Powers of the Judioiary-Judges
Pease and Tod.


The decision of Judge fancy in tn.
bred Scott case has awakened inuuir,
into the precedents where Judicial decis
ions have come in conflict with the Law
making power, both in the General Gov
eminent, and single States. None O
the State Constitutions have in set terms
conferred upon the judiciary the powe.
of settling constitutional questions, anC
yet it seems 10 be well settled that il &C
tualy possesses it, at least it is uniyer
sally conceded 10 it. This was not al
ways SD, for within the memory of mer
now living, it has been f%ercely contested
1t may not be known TO many of our
readers hat the only instance in which
the question vas ever brought 10 a form
al decision was in this State, and thC
Judges whose authority was questioned
and who were impeachedby the House o
Representatives, and tried by the Senate
of the State, were citizens of this Coun-
ty, late judges George Tod, and Calvin
Pease.
We extract the following account Of
the transaction from the New York
Times, which says:
A cursory account of it is given in the
preliminary sketch 10 the statutes oil
Ohio, prepared by the present Governor
Chase. But many of the characteristic
facts throwing light upon the proceed,
ings and the parties survive only in Ie'
collection: those who were personally
concerned in the transaction have almost
all passed from the stage. We have
made some inquiry, and can fud only
one person now living who was a prom
inent actor in this strange judicial dra-
ma. This survivor is the present Sec
rotary of State, Gen. Cass, who was one
of the counsel who volunteered their
professional services upon this occasion,
and who made the closing argument in
the case of Judge Tod. This gentleman
was a Judge of the Supreme Court, and
his trial first brought on, and in fact the
battle was fought and The issue settled
in his case. Judge Tod, in making ap-
plication for permission 10 be heard by
counsel, said that "the most respectable
gentlemen Of the bar had rendered their
servises, in order TO assist him in con
Quoting his defence, in which he consid-
cred they had done honor to themselves
and society" The counsel who appear
ed were Jacob Burret, afterwards a
member of the Senate OF the United
States, Arthur st. Clair, sol of Gen. st.
Clair of revolutionary memory, William
Creighton and Henry Brush, subsequent
" members Of Congress. and Lewis Cass,
all well known names in the early histo-
~ of Ohio.
The immediate cause of the attempted
impeachment may be briefly stated An
act had been passed by the Legislature,
giving to Justices of the Peace jurisdic-
lion in all cases of debt TO an amount
not exceeding fifty dollars. The consti-
nationality of this prouision for all sums
exceeding twenty dollars had been con-
tested, and the Court of Common Pleas
for the Third circuit and the Supreme
Court had decided its unconstitutional
ty. This decision occasioned great ex-
citement in the State, and after some
abortive efforts led to the impeachment
Of the obnoxious Judges-Tod of the
Supreme Court, the father OF the pres
ent eminent citizen of Ohio, of thatname
and Pease, the President of the Third
Judicial Circuit, before whom the queS-
ton was first brought.
Without going into unnecessary de-
tail, the point in controversy will be rem
dered sufficiently obvious by quoting
one of the charges against Judge Pease.
1t exposes the pretension of the House
of Representatives in its true colors. 1t
charges that, sitting as President
Judge, he had decided on various c
sions that the Court had full p3wer to
set aside, suspend and declare null and
void the first section Of the act defining
the duties of Justices of the peace Or
in other words the Judge had decided
that section 10 be against the constilu-
ton, and therefore Of no force and eff.
feet. This was the principal involved
and brought to a solemn judicial decis-
ion in these cases. The trial fer i'm
parchment was conducted with a good
deal of warmth, approaching violence
and its progress was watched
with much anxiety by the people of the
State. The judgment was pronounced
on the Goth day Of January, 1909, when
Judge Tod was acquitted by a vote of,
10; not guilty, 8. This numeri
cal majority was not sufficient for con
v%iction, as the constitution of Ohio re-
quired for that purpose the concurrence
of two thirds of the Senate. Judge
Pease was subsequently tried, and was
acquitted by a similar vote on The 9Th OF
February following. 1t is a curious
circumstance shown by the record,
two of the Senators Irwin and
their votes. The for
mer voted guilty in rods case, and the
not guilty. In the case of Pease
they changed positions, Kinney voting
and Irwin not guilty. As the
real question was the same in both
ses, and the facts not disputed, the mo-
live for this course it is difficult to con.
lecture. One vote mere added to the
majority would have established in Ohio
the principle that the Judiciary has no
right Io decide upon the conslitutionality
of a Jaw, thus leaving the Legislature
practically omnipotent.
Since the above. numerous other de-
have established the principle
that the law-making power is not ON
nipoient, and that it must, 10 It's turn,
occasionally yield obedience to the ri
bunals which are specially constituted
guardians of the rights conferred by the
constitution.
Oberlin College.
The Catalogue for 1856 I, presents the
SUNNI 4RY.
Theological Department 81