Page:The Green Bag (1889–1914), Volume 07.pdf/132

A Sketch of the Supreme Court of Ohio. by carefully drawn lines, but are co-ordinate department's of the government. This was the result of the wisdom of the forefathers, fraught with lessons learned from hardships endured in mother countries. This distinc tion did not exist in other governments, where much confusion prevailed between the various departments. It was therefore nat ural that the same misconception should to

a certain extent per vade the minds of early settlers, and we find that even in the early history of Ohio there were those who clung to the idea that the legislative was the supreme branch, but fortunately were in the minority. The principle of the su premacy of legislative acts found an early grave in the history of Ohio, when it was undertaken to im peach that sturdy, eminent, youthful President Judge of the Third Circuit, Calvin Pease, because he saw fit to assert his judicial indepen dence by pronounc JOHN C ing portions of the act of 1805, defining the duties of Justices of the Peace, unconstitutional. This was indeed a bold stand to take at a time when the question of the power of judges to take such action was not by any means a settled one, not having been expressly con ferred by the Constitution. Judge Pease did not have the benefit of the learning of those masters of constitutional law, Marshall, Kent, and Story, but could only look to that un settled state in other countries. No other country could be looked to for light upon

the question, as none had a similar Constitu tion. That acts of Parliament were beyond attack was well understood. Lord Coke had declared that the power and jurisdiction of Parliament was absolute and not ' considered within bounds, and Blackstone maintained the same doctrine." Imagine, then, Judge Pease standing alone in a western unsettled state, looking far into the future, fully com prehending the dan gers to the American Constitution in failing to uphold the princi ple that it was the judicial duty to de termine whether or not acts were within constitutional limita tions! His was a strong mind indeed. He probably fully realized that many of the people of his day were imbibed with the principle of inviola bility of legislative acts. The attempted im peachment of Judge Pease and his asso ciates on the bench for this act demon strating indepen dence of thought and SY.MMES. superiority of the power of the judiciary is one of the most notable recorded acts affecting the Ohio judiciary. And the close call which Judge Pease had in his trial shows how completely the idea of supremacy of legislative power invaded the minds of men at that time. Put his acquittal even by a small margin marked one of the most important epochs of principle in the history of the state. It is reasonable, however, to suppose that Judge Pease and his associates were aware 'Chase's Blackstone, 15 n.