USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Five > Part 9
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Such a life made these judges thinkers. If riding alone, each had ample time and temptation to beguile the tedium of slow travel by putting to himself legal cases, questions and problems, and solving them upon principle. If in company of other judges, or lawyers, each would try to test or puzzle his companions, or to find entertainment, or profit, in discussing legal diffi- culties in which he, or his clients, were interested.
Out of this life those who were blessed with legal ability and judicial minds grew to be great judges,
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during many years upon the bench caused right and justice to prevail within their jurisdictions, and left be- hind them, among lawyers and people, high reputations for ability and integrity.
Space permits only mention of one of these. On February 10, 1810, when thirty-five legislative votes reelected Francis Dunlevy, president judge of the First, or Cincinnati Circuit, of the Common Pleas, John McLean had thirty-three votes. On February 17, 1816, McLean was chosen, by the Legislature, one of four Supreme judges, and sat upon our Ohio State Bench until 1822. Then President Monroe asked him to be the commissioner of the general land office. In 1823 the same President made him Postmaster-General, in which office President John Quincy Adams continued him until 1829. Then President Jackson nominated him a justice of the United States Supreme Court. His great service there for thirty-two years was ended by his death in 1861. He was one of those to whom I have referred as almost self-made lawyers and judges.
He was born in Morris county, New Jersey, on the IIth day of March, 1785. In 1789 his father, a poor man with a large family, removed to the West, stopping first in Morgantown, Virginia, thence going to Nicholas- ville, Kentucky, and finally, in 1799, settled on a farm in Warren county, Ohio. John worked on the farm until sixteen years old, then received private instruc- tion in the classics for two years, and, at eighteen, went to Cincinnati to study law. Meanwhile he supported himself by writing in the county clerk's office. In 1807 he was admitted to the bar and began practice at Leb- anon, Warren county. From 1813 to 1816 he repre-
JOHN McLEAN
Born in Morris county, New Jersey, March II, 1785; at the age of ten removed with his parents to Warren county, Ohio; admitted to the bar, 1807, and began prac- tice in Lebanon; member of Congress from the Cincinnati district, 1813-16; Judge of the Ohio Supreme Court, 1816- 22; Commissioner of the General Land Office of the United States, 1822; Postmaster-General under Presidents Mon- roe and John Quincy Adams, 1823-29; Justice of the United States Supreme Court, 1829-61; died in Cincinnati, April 4, 1861.
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THE RISE AND PROGRESS
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Mclean thirty-three votes. On February 17. 1816. McLean was chosen, by the Legislature, one of four Supreme judges, and sat upon our Ohio State Bench until 1822. Then President Monroe asked him to be the commissioner of the general land office. In 1823 the same President made him Postmaster-General in which office President John Quincy Adams continue him until 1820. Then President Jackson nominated him a justice of the United States Supreme Court His great service there for thirty-two years was ended by his death in 1861. He was one of those to whom I have referred as almost self-made lawyers and judges.
He was born in Morris county, New Jersey, on the IIth day of March, 1785. In 1789 his father, a poor man with a large family, removed to the West, stoppin first in Morgantown, Virginia, thence going to Nichola ville, Kentucky, and finally, in 1799, settled on a farm in Warren county, Ohio. John worked on the farm until sixteen years old, then received private instruc- tion in the classics for two years, and, at eighteen, went to Cincinnati to study Isw. Meanwhile he supported himself by writing in the county clerk's office. In 1807 he was admitted to the bar and began practice at Leb- anon, Warren county From 1813 to 1816 he repre-
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sented the Cincinnati district in Congress. In the latter year, at the age of thirty-one, he took his seat on the Supreme Bench of Ohio.
My study of the courts of those days was embar- rassed by the fact that Ohio made no provision for publishing reports of cases decided in her courts until about 1824. The first official volume-First Ham- mond (Ohio) Reports,-published in 1824, begins with a case decided on the circuit in August, 1821, and con- tains only six cases decided prior to December term, 1823. Benjamin Tappan, who was then president judge of the then Fifth Circuit from 1816 to 1823, after- ward published a small volume now known and referred to in our Ohio Digests as "Tappan's Report."
However, public records and a few references by one or two Ohio writers of history, show how, in its earliest years, the judiciary of Ohio maintained its constitu- tional position as a department of the State Government and thereby preserved the Constitution itself from being converted into a cipher.
At the session begun in December, 1805, the Legisla- ture passed an act relating to justices of the peace. Its fifth section so far extended their jurisdiction that no party to a suit in which more than twenty and not more than fifty dollars was in dispute could obtain a trial by jury. The twenty-ninth section provided that if any plaintiff suing on original writ in the Com- mon Pleas did not recover more than fifty dollars, he must pay his own costs. In 1807, Calvin Pease, sitting as president judge in the Common Pleas in Belmont and also in Jefferson, held said provisions of said sections unconstitutional and declared them null and
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THE RISE AND PROGRESS
void, because Section 8, Article 8, Ohio Constitution read, "The right of trial by jury shall be inviolate." In the Supreme Court, to which one or more of said cases had been duly carried, the voices of Samuel Huntington and George Tod, judges, affirmed the rul- ings made by Judge Pease. When the General Assem- bly met at Chillicothe in December, 1807, the then acting Governor (Thomas Kirker, the Speaker of the Senate) in his message related said decisions and recom- mended that the Legislature make suitable provision for the trial of actions in which the issues concerned values between twenty and more than fifty dollars. The House at once referred the matter to a special com- mittee. On January 4, 1808, it passed a resolution re- ported by said committee, reading thus:
"Resolved, That the judges of the State are not authorized by the Constitution to set aside an act of the Legislature by declaring the same unconstitutional and void."
The vote was ayes 18, noes 12. Although the com- mittee continued to consult, no further action was had at that session. On December 23, 1808, the House adopted resolutions impeaching Judge Pease by a vote of 35 to II; and on the next day similar ones impeach- ing Judge Tod by 34 to 9. Judge Huntington, in October, 1808, had been elected Governor, and had resigned his judgeship in order to enter upon his new office; so no resolution against him was presented.
The House directed Thomas Morris, Joseph Sharpe, James Pritchard, Samuel Marrett and Othniel Looker to act as managers of the prosecution during the trial before the Senate. Judge Pease at once filed answer
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admitting his decisions, averring that they were fully supported by constitutional law, and that it was his official duty to decide and adjudge as he had done, and pleading "not guilty." Judge Tod did the like. The Senate sat as a court of impeachment from within the last week in December until the end of the first week in February, 1809, but not continuously, nor for a whole day at a time, and then acquitted both judges.
The question involved was new to lawyers and people. Before 1630, in England, Lord Chief Justice Coke had said: "When an act of Parliament is against com- mon reason, or repugnant, or impossible to be per- formed, the common law controls it and adjudges said act to be void"; and about 1690 Lord Chief Justice Holt, quoting this, added, "Lord Coke said not an extravagant but a reasonable saying." These utterances had remained buried in old, seldom examined books. Few men living and acting in English America between 1775 and 1808 had any knowledge of them. Happily Judge Pease was among those few. The general impression was that an act of Parliament or of a Legislature overrode the courts and could only be neutralized by amendment, repeal or revolution. The Supreme Court of the United States, prior to 1807, had decided cases in each of which the constitutionality of a statute of the United States or of the State of Con- necticut had been questioned, but had adjudged said statutes constitutional. At February term, 1808, in the case of the United States vs. Judge Peters, 5 Cranch's Reports, pages 115 to 141, Chief Justice Marshall, the entire court concurring, adjudged an act passed by the Legislature of Pennsylvania in April, 1803, uncon-
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THE RISE AND PROGRESS
stitutional and void. The case is of interest in consider- ing the Ohio impeachment cases of 1808-9. In January, 1803, Richard Peters, United States district judge for Pennsylvania, in a suit fully within the juris- diction of his court, had made a decree distributing the proceeds of a judicial sale of the cargo of the ship "Active." In 1803 the Legislature of Pennsylvania passed an act declaring the decree so made by the United States Court invalid, and directing the Attorney- General of the State to require payment of said sale moneys into the State Treasury, and in case of refusal to sue for them in a State Court. Said act also "author- ized and required the Governor of Pennsylvania to pro- tect the just rights of the State, in respect of the premises by any further means and measures that he may deem necessary for the purpose, and also to protect the persons and properties of the defendants, Elizabeth Sargeant and Esther Waters, for any process whatever issued out of any Federal Court in consequence of their obedience to the requisition, so as aforesaid directed to be made to them by the Attorney-General of this commonwealth." The moneys ordered dis- tributed by Judge Peters's decree were in custody of said two ladies as executrixes of their father, David Rittenhouse. The persons entitled, under the decree, to the moneys, applied to Judge Peters to issue the proper process to enforce payment according to his decree. This he declined to do. Then they applied to and obtained from the Supreme Court of the United States a mandamus to compel the judge to issue the process. Judge Peters, in his answer to the writ, said: "From prudential more than other motives, I
RUFUS KING
Born in Chillicothe, Ohio, May 30, 1817; graduated from Harvard University and in 1841 admitted to the bar; practiced in Cincinnati, where he was a preeminent citizen, actively identified with the interests of education and cul- ture; declined appointment by Governor Brough, 1864, as Judge of the Ohio Supreme Court; succeeded Morrison R. Waite as president of the third Constitutional Conven- tion, 1874; died in Cincinnati, March 23, 1891.
THE RISE AND PROGRE
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deemed it best to avoid embroiling the government of the United States and that of Pennsylvania (if the latter government should choose to do so), on a ques- tion which has rested on my single opinion, so far as it is touched by my decree; and under the influence of this sentiment I have withheld the process required. I entertained a hope that a Legislature succeeding that by which the act before mentioned was passed, would, under a more temperate view of the subject, have repealed it, and enabled and directed the executive of the state, or some other authority, to put this case in legal train of investigation; so that the final judg- ment and decree of the superior tribunal of the United States might have been in a proper course obtained."
The timidity of Judge Peters had delayed for five years the enforcement of a valid judicial decree. As the opinion of the Supreme Court of the nation was not delivered until after January, 1808, the Ohio judges acted in 1806 and 1807 without its aid. In August, 1806, in an infant State, amid the yet thinly settled woodlands of eastern Ohio, Calvin Pease, holding Common Pleas Court at St. Clairsville and at Steuben- ville, far from libraries, thought out the question. In 1807 Huntington and Tod affirmed his judgment. Not- withstanding excitement, the House consulted for almost one year before reporting articles of impeach- ment, although three-fourths of the body thought the judges guilty. The Senate gave more than one month to hearing and consideration. Itself a member of the legislative body, it in effect decided that the judicial power could annul a statute because it contravened the Constitution.
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The leaders in the attempt to impeach Judges Tod and Pease were among the ablest of the Ohioans of that time. One of the managers, Thomas Morris, was subsequently elected a Supreme Judge, later a United States Senator. Thomas Worthington, an earnest supporter of the charges, served for years as United States Senator, and later as Governor of the State. Dur- ing 1807-8-9-10, the excitement in political quarters was intense. The impeaching resolutions were voted for by more than three-fourths of the House. The acquittal did not for more than a year destroy this intense feeling. Although the supporters of impeach- ment did not elect as large a majority in the House of 1809-10 as they held in that of 1808-9, they were able in January, 1810, to pass what was known as "The Sweeping Resolution." This vacated the offices of all the then judges of the Supreme Court, all president judges of the Common Pleas circuits, and all the associate-judges of Common Pleas in every county. It also vacated the offices of Secretary of State, Auditor of State, and Treasurer of State. Another act provided for the election of new justices of the peace in every township.
This exercise of legislative power evidently "relieved the pressure." How did the people treat the accused judges? In October, 1808, the people elected Judge Huntington Governor of the State; in October, 1810, Trumbull county sent Judge Tod to the State Senate; in February, 1810, the Legislature gave twenty-eight votes for Judge Tod for president judge of Common Pleas, and in 1816 and 1823 elected and reelected him to that office, in which he served for fourteen years;
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OF AN AMERICAN STATE
in 1812 Trumbull county sent Judge Pease to the State Senate; and the State Legislature in 1815 and 1822 elected and reelected him a judge of the Supreme Court, where he served for fourteen years.
Ohio should always be proud of the conduct of her sons in this controversy. But she should award the laurel for that battle to her judiciary. They preserved the State Constitution. Unless the courts can make null a legislative act not authorized by the Constitution, that Constitution would be valueless, because its pro- visions could not be enforced against the will of a bare majority in each house of the Legislature. Brief sketches of the three judges who so served the State, will be of interest.
Calvin Pease was born in Suffield, Connecticut, September 9, 1776; studied law with Gideon Granger (who was Postmaster-General from 1801 to 1814), and married his preceptor's sister; was admitted to the Connecticut bar in 1798, and to our Territorial bar at Marietta in October, 1800, where and when George Tod and Samuel Huntington were also admitted. On April 10, 1803, the Legislature elected him president judge of Common Pleas for the Third Circuit. He served until March 4, 1810, when he resigned. As already stated, he sat as a Supreme Judge of Ohio from 1816 to 1830, maintaining and deserving high reputation for ability, integrity and knowledge of legal principles. In person he was tall and well-made; in temperament, cheerful and agreeable. Tradition tells that he was noted also for his wit.
George Tod was born in Suffield, Connecticut, Decem- ber II, 1773; graduated at Yale in 1795; studied law
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THE RISE AND PROGRESS
at Judge Reeve's famous school in Litchfield, Connecti- cut, and became a member of the bar of that State. He came to Ohio, and was, as already stated, admitted to the bar at Marietta in October, 1800, and at once became prosecuting attorney of Trumbull county. He served as State Senator from Trumbull county in 1804-5; and as Supreme Judge from 1806 to 1810; again as State Senator in 1810-II. Was major and later colonel of the 19th Ohio Militia regiment in 1812- 13-14, and served with credit at Fort Meigs and at Sackett's Harbor; sat as president judge of Common Pleas in the Third Circuit from 1815 to 1829. He died October II, 1841. He was the father of David Tod, the war Governor of Ohio, who was elected by 55,223 majority in October, 1861, and effectively supported President Lincoln during his entire term.
Samuel Huntington was born in Norwich, Connecti- cut, in 1765; graduated at Yale in 1795; practiced law at Norwich; was sent by owners of Western Reserve lands to examine their property; decided to live in Ohio; was admitted to the bar at Marietta in 1800; repre- sented Trumbull county in the Constitutional Conven- tion of 1802; represented the same county in the State Senate, 1803-4; was elected Supreme Judge April 2, 1803, and served until the fall of 1808, when he resigned in order to qualify as Governor of the State, in which high position he served two years. He died in February, 1817, at Painesville, Ohio. His family was old and of high repute in eastern Connecticut. He was worthy of his parentage, and deserved and faithfully discharged the trusts awarded him by clients, by his fellow-legisla- tors, and by the people.
RUSH RICHARD SLOANE
Born in Sandusky, Ohio, September 18, 1828; educated in private schools and in the old Methodist Seminary at Norwalk; admitted to the bar upon completing his twenty- first year; twice elected Probate Judge of Erie County, resigning that office in 1861 ; served, by appointment from President Lincoln, as general agent at large of the Post Office Department, with headquarters in Chicago; a zeal- ous and active opponent of slavery; public spirited citizen of Sandusky, and identified with many enterprises and activities for promoting its welfare; died December 24, 1908.
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Magazine of Western History
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OF AN AMERICAN STATE
For almost half a century, from April, 1803, to February, 1852, beside each lawyer president judge of Common Pleas in each county, sat two or three "asso- ciate-judges"-laymen,-elected by the Legislature for terms of seven years. This office had been adopted from Pennsylvania. These associate-judges formed a necessary part of the court at all times, and alone- as a general thing-transacted all business pertaining to an Orphans' or Probate Court. Each of them had a right to vote upon every decision-each of their votes being equal to that of the lawyer president judge.
In 1847 the president judge of the Muskingum Cir- cuit was disabled by sickness for a full year. He wished to resign, but the bar insisted that he should continue in office. So for that year the associate-judges held all the terms. As there was only one lawyer judge in each circuit, no substitute for Judge Richard Stillwell could be obtained. The associates also sat alone in cases in which the president judge had been of counsel or was otherwise interested.
At the last term in Muskingum, under the old Con- stitution, in January, 1852, a question arose that resulted in an overruling of the opinion of the president judge by his associates. Numerous indictments under the liquor law of 1851 had been presented by the Grand Jury. The prosecuting attorney, who for many sub- sequent years was a distinguished lawyer, and served a full term as judge, had omitted a certain negative averment. Judge Corrington W. Searle, deciding a motion to quash one of the indictments, and following what had become a custom when such a question had been submitted, announced an opinion sustaining the
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THE RISE AND PROGRESS
motion as the judgment of the court without consulting either of his associates; and, the noon hour having arrived, ordered a recess. The question involved had been much discussed, not only in court but among the people, and temperance men were anxious that the prosecutions should be sustained. When court opened, in the afternoon, Judge Horatio J. Cox gave an opinion against the motion to quash. Judge Wilkin Reed then did the like. Judge Searle then said, "The Court being divided in opinion, the motion is overruled." Hearing this, Judge Jacob P. Springer added, "I agree with the associate-judges." Judge Searle docketed the decision, and soon after declared the court adjourned sine die; and the old court, with the old Constitution, was dead. The question involved survived. Judge Richard Stillwell, during his first term under the new Constitution, decided as the associates had done, but the Supreme Court, three judges concurring, agreed with Judge Searle and reversed Judge Stillwell.
The list of associate-judges contains the names of many men well known for their experience, good sense, good judgment and integrity. For forty-nine years they administered the laws regulating the administra- tion of estates, partition of lands, etc., sensibly and justly.
The decisions of Judges Pease, Tod and Huntington, as already stated, made our State Constitution safe from injury at the will of bare legislative majorities. The unfortunate blunder made by the refusal of the Consti- tutional Convention to vest in the Governor a qualified veto power, compelled the courts to determine countless questionings about legislative action. The number
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