[
2001-Ohio-56.]
APPENDIX to the State of the Judiciary Address by Chief Justice Thomas J.
Moyer, delivered before a Joint Session of the Ohio General Assembly, March 20,
2001.
http://www.sconet.state.oh.us/Communications_Office/Speeches/200
1/2001soj.asp
RUTHERFORD v. M’FADDON*
(Liberty Hall and Cincinnati Mercury, November 3 and 10, 1807.)
Supreme Court of Ohio, Steubenville, Jefferson County. 1807.
1. Acts of the general assembly are subservient to the constitution of the
state.
2. The courts of the state are bound to support the constitution and laws of
the state and cannot be bound by both the constitution and a conflicting
law.
3. The courts have the authority to determine the constitutionality of an act
of the general assembly.
4. Where an act of the general assembly is repugnant to the constitution that
act is from the beginning void and of no binding effect and the courts have
the duty to declare it no law.
*
This opinion is reprinted from Ervin H. Pollack, Ed., Ohio Unreported Judicial Decisions Prior to
1823 (Allen Smith Company, Indianapolis 1952), at 71 et seq.
The Introduction to Professor Pollack’s book contains an interesting history of the
reporting of opinions in Ohio in the nineteenth century. The Historical Comment to Rutherford is
also worth reading for its description of the circumstances under which Rutherford was decided
and the General Assembly’s response to the judgment. Ohio Unreported Judicial Decisions Prior
to 1823 is available to the public in the library of the Supreme Court of Ohio.
The Reporter’s Office wishes to thank Elizabeth A. Harmon, a John Glenn Institute
intern, for her help in preparing the text for publication.
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5. Where the constitution provides that the right of jury shall be inviolate the
meaning of right is that right existing at the time the constitution was
adopted.
6. The right of trial by jury which existed immediately prior to the
constitution of 1802 required a jury trial in all civil cases of whatever
nature, except simple contracts, and in all such, where the cause of
controversy was of more than twenty dollars value.
7. Section 5 of the act defining the duties of justices of the peace and
constables, in criminal and in civil cases, insofar as it extends the
jurisdiction of justices of the peace in civil cases, to any sum not exceeding
fifty dollars, is repugnant to article 8, section 8 of the constitution of Ohio
and therefore has no binding effect.
OPINION
HUNTINGTON, C.J. The only question here made is, whether so much of
the fifth section of the act, defining the duties of justices of the peace and
constables, in criminal and in civil cases, as extends the jurisdiction of justices of
the peace in civil cases, to any sum not exceeding fifty dollars, be constitutional,
and consequently whether it has any binding force.
Though this is the question put for the court to determine, I shall extend
my enquiries and examine into the right of the court to determine upon the
constitutionality of an act of the legislature. This is a respect due to the legislative
body. It will be satisfactory to the people to know the grounds on which the
decision rests. The right has been questioned, and if the courts do not possess it,
they ought not to enter upon the consideration of the question in the case at bar. It
is not matter of surprise, that doubts of this power in the courts of law, have been
entertained by those who have not had leisure or opportunity to investigate the
subject, or having given it only a hasty and superficial examination: by such
persons it has been represented, that the exercise of this power would operate to
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repeal the laws: that it would be an assumption of legislative authority, and that it
would be judging over the head of the legislature.
Let it be distinctly understood, that the court claims no right of altering,
repealing or setting aside any law whatever: they do not consider themselves
vested with any legislative authority. On the contrary, it is their duty, as well as
their aim, to keep the judicial and legislative functions separate and unmixed. It is
their duty, peculiarly, to expound, construe and declare the law; and in
discharging this duty, they will not be guilty of the solecism, of declaring a law to
be unconstitutional; but when the case occurs, they must, in compliance with their
duty, compare the legislative act with the constitution, and if they find such act
contrary to the constitution, or prohibited by it, as, in such case, the act is, from
the beginning utterly void and of no binding force, it is the duty of the court to
declare it no law.
For the more correct understanding of the principles upon which the
decision of the court is founded, it will be necessary to enquire what is the end
and design of a written constitution.
A constitution is defined to be a compact of the people, declaring what
form of government they choose to live under; distributing the three great and
necessary deposits of delegated authority among the three branches of
government, and defining the limits of each. Our constitution, after specifying the
powers delegated to each branch and prohibiting the exercise of others, has
declared, that “all powers not hereby delegated, remain with the people.” The
object of every constitution is to secure the liberty of the people, by keeping the
legislative, executive and judicial powers separate and distinct from each other,
by restraining each within the limits assigned to it, and by preventing all
encroachments on each other, or on the rights of individuals. And I shall assume
it as an incontested position, that our constitution (allowing it to harmonize with
the constitution and laws of the U. States) is the supreme law of the land, and
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paramount to any legislative act: it follows, that any act in violation of the
constitution, or infringing its provisions must be void, because the legislature,
when they step beyond the bounds assigned them, act without authority, and their
doings are no more than the doings of any other private man. To illustrate the
position, let us suppose the general assembly to pass an act, declaring the
punishment of forgery committed within this state, to be transportation to the
province of Canada. The 17th section of the 8th article of the constitution
declares, “that no person shall be liable to be transported out of this state, for any
offence committed within the state”; suppose further, a man to be regularly
convicted of the crime of forgery, before a court of competent jurisdiction; can the
court sentence him to be transported?—If they are bound by the act, they must do
it—if they are bound by the constitution, they cannot: it is impossible they
should be bound by both, because they are in direct contradiction. The court is
obliged to take an oath to support the constitution—they have taken it: what shall
they do? They must perjure themselves, to support the act. To support the
constitution, they have only to discharge the official duties properly belonging to
them, and assigned them by the constitution itself; they have to decide what is the
law—and in deciding this question, the act or the constitution must give way. The
constitution, it is clear, cannot be adjudged void—and it is equally clear, that the
act which is inconsistent with it, must be no law.
To the legislature belongs the sole power of making laws; to the judiciary,
the sole power of expounding them. So little power is vested in the executive by
our constitution, that no danger can be apprehended to our liberties, while the
other two branches keep within their constitutional limits: Part of the executive
power being committed to the legislature—that of appointing all the high officers
in the government, not elected by the people, it has been supposed, that the
judiciary received their authority, as well as their appointments from the
legislature: and consequently were bound to carry into effect, their acts, whether
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constitutional or otherwise. This mistake, which I apprehend to be the chief
source of the erroneous opinions entertained on this subject, arises from not
considering the judiciary, as a co-ordinate branch of the government deriving its
authority from the constitution. That instrument, it is true, has empowered the
legislature to mark out the jurisdiction, and detail the duties of the several courts;
but this power, by no means implies a right to deprive the judiciary of that
authority which the constitution vests in it, and requires it to exercise.
The people can never be secure under any form of government, where
there is no check among the several departments: in ours, the check upon the
executive and judicial officers, for corruption or misbehaviour in office, is an
impeachment; there is no check that operates on the members of the legislature
out of their own body—and all the check upon the proceedings, that exists in any
other body, arises from the regular exercise of the constitutional powers of the
judiciary; for it must be noticed, that the courts can originate no question
involving the constitutionality of a law, and of course can decide no such
question, unless it comes legally before them for a judicial decision. This I trust,
is a full answer to the objection arising from the danger suggested, that our laws
may be set aside, and the legislative power usurped by our courts, provided they
have a right to determine the constitutionality of a legislative act, besides, the
suggestion presupposes the highest degree of depravity in courts, without the least
possible motive. What inducement, what interest, or advantage could the judges
of a court propose to themselves, from the corrupt exercise of a power, which by
suspending the laws, would have their persons, property and reputation equally
unprotected with those of their fellow-citizens?
It is contended that the court by taking upon themselves to decide this
question, casts some imputation upon the legislature; that the legislature are as
competent to determine the constitutionality of their own acts, as the court, and
that a decision against the constitutionality of an act, implies error in the assembly
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that passed it. No one will contend that the legislature, may not, at times, commit
mistakes from haste or inattention—the records of every session prove this—the
repeal, alteration and amendment of laws, shew the sense of successive
assemblies upon this point; and it would seem as probable that provisions
inconsistent with the constitution, might be inadvertently introduced into a law, as
that errors of any other description should creep in—in either case the judgment
of the court imputes no blame to the legislature:—It frequently happens that two
acts of the legislature are found in direct hostility with each other, yet, neither
expressly repealed; the court is called upon to determine which is the law, as both
cannot stand: both are enacted by the same authority; for aught appearing on the
face of the laws, both are equally binding on the court; yet the court must decide
between them—Is it an imputation on the legislature to make this decision? And
how does it differ, in application to this point, from a case where a law clashes
with the constitution? The most fair and correct position is, that in framing laws,
the legislature ought to take into consideration their bearing upon the constitution,
as well as upon the existing laws; and that their interference with one or the other,
when it happens to take place, should be corrected by the courts in the course of a
regular judicial investigation: a contrary principle might not only set our laws and
our constitution at variance, but produce the most mischievous confusion in the
laws themselves.
If we resort to consequences, to throw further light upon the subject, we
will find that going on the ground the legislature can pass unconstitutional acts—
that they are the sole judges of their constitutionality—and if unconstitutional,
that there is no remedy; then indeed is our constitution a blank paper: there is no
guarantee for a single right to citizens; your executive and your judiciary, it is
true, are bound by the constitution, where it is not made to bend to the laws; but
slavery may be introduced; a religious test may be established; the press may be
fettered or restrained; the trial by jury may be abolished; ex post facto laws may
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be made; standing armies may be raised, and the whole train of evils against
which our constitution meant to provide, may be gradually let in upon us. I speak
not of these consequences as likely to follow at present, or altogether; but with a
view to point out the necessity of guarding the constitution with the most
scrupulous vigilance, and to shew that on the constituted authorities is this duty
more peculiarly incumbent.
I now come to the point in issue, premising that I firmly believe it was not
the intent of the legislature, to infringe the constitution, by extending the
jurisdiction of justices of the peace, and that if they should be convinced any part
of the law in question is unconstitutional, they will correct the error.
For the purpose of ascertaining what was the right of trial by jury when
our constitution was framed, I shall advert to the second article of compact, in the
ordinance of congress, for the government of the territory of the United States,
northwest of the river Ohio, passed the 13th of July, 1787. In this article was
guaranteed to the inhabitants of the territory the benefit of the writ of habeas
corpus, and of the trial by jury; of a proportionate representation of the people in
the legislature, and of judicial proceedings according to the course of the common
law, with many other important rights. This ordinance was the constitution of the
territory, and the six last articles, called the articles of compact, are considered as
still binding on the state. The vague phraseology in which these rights are
declared in the 2d article, leave room to believe that congress intended to vest in
the territorial legislature, a discretion to point out the manner of enjoying the
benefits enumerated—this congress might safely do, so long as they reserve the
power of repealing any territorial law. The territorial legislature accordingly
might regulate the use of the habeas corpus, and the apportionment of
representation according to their own judgment, for there was nothing to guide
them in the ordinance:—It was the same in respect to the trial by jury, the benefit
of which was secured in general terms. We find the territorial legislature from
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time to time limiting and defining the jurisdiction of justices of the peace, in both
civil and criminal cases. It was necessary for them so to do, for it never could
have been completely settled, how far any of these benefits should extend,
without the interposition of the legislature, or perhaps the judgment of a court of
law, where the legislature left them unsettled. The territorial legislature did, in
fact, proceed to exercise their discretion in securing to the people these benefits,
in all such cases as they supposed necessary, and the benefit of the trial by jury
was retained in all cases, where the nature or amount of the controversy was such
as to make it worth the expence [sic] and trouble of a decision through the
medium of a jury. The jurisdiction of justices of the peace, was marked out and
limited; they had no authority to summon a jury, and at the period when our
constitution was framed, they had a right to try certain criminal cases of small
magnitude, and civil cases of mere contract, not under seal, to the amount of
twenty dollars.
The 8th section of the 8th article of the constitution; by which the
constitutionality of the 5th section of the law in question is tested, is concisely and
emphatically expressed “The right of trial by jury shall be inviolate.” To what
right could the framers of our constitution have referred? To a right then existing,
and which every citizen was entitled to; a right known and recognized by the laws
then in force—or an indefinite right, which might hereafter be established, and be
varied or fritted away, as succeeding legislatures and courts may think proper?
Common sense gives the answer; they must have meant none other than a right
then known and established, otherwise this constitutional provision is destitute of
force; for had it been designed, not to bind the legislature, but only to give them
power of allowing that right in such cases as they should think proper, it would
have been idle and superfluous, because the legislature would have possessed the
power without it. If there was a right then existing to which the 8th section of the
article refers, let us enquire what that right was, at the time of the framing [of] the
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constitution. It is conceded on all hands, that the right of trial by jury, to which
every citizen was entitled at that period, extended to all civil and criminal cases,
except such as were expressly committed to the jurisdiction of justices of the
peace, and that their jurisdiction embraced only some small criminal offences, and
cases of contract without seal where the demand did not exceed twenty dollars.
The right of trial by jury, then, in all civil cases of whatever nature, except
simple contracts, and all such, where the cause of controversy was of more than
twenty dollars value, and in all criminal cases except the few committed to the
cognizance of a single magistrate, was the right to which the constitution refers,
and the right which it meant to preserve inviolate. Has the act in question gone so
far as to violate that right? In the 5th section of the act, the jurisdiction of justices
of the peace is extended under the limitations and restrictions therein after
provided, to any sum not exceeding fifty dollars. If these restrictions and
limitations do not save the unconstitutionality of this section, I shall be of opinion
that the clause which extends the magistrates jurisdiction is not law. There is but
one provision that is relied on as affecting the constitutionality of that clause—it
is contended that the right of appeal, by that provision allowed, from the
magistrate’s judgment to the court of common pleas, where a jury is empannelled
[sic], purges the violation of the original right, by giving the party afterwards, a
right to another trial, where he may have the benefit of a jury, if he pleases, and he
may eventually have his cause decided by his peers—this reason is far from
satisfactory. I have no doubt but the legislature may prescribe any reasonable
preliminary steps, to be taken by the parties, before their cause shall come to trial.
It is necessary in many instances that this should be done, to secure to the parties
a remuneration for the trouble and expence which may be occasioned by the
unjust or vexatious prosecution of their causes, whether in the institution, defence
or appeal of them? This however, might be carried to a length which would
amount to a denial of justice. Should bail, for instance, be required by law to such
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an amount, as no common person could procure: in whatever stage of a suit such
bail should be demanded, it would effectually preclude the party from his benefit
of trial by jury, by throwing such embarrassments in the way of enjoying it, as he
could not surmount: it is not to be presumed that the legislature would knowingly
and willingly do this; but I mention it, to shew that the right of trial by jury may
be violated, by other means than by expressly prohibiting it: However vexatious
it may be to compel a party to submit to the delays and expences of a trial before a
magistrate, and to give bond for appeal before he can enjoy the right of trial by
jury, I rely more on the emphatic word trial than upon any embarrassments
thrown in the way of his right by the statute; I rely upon it as shewing
conclusively that the right of appeal, does not in any manner help out the
jurisdiction of the magistrate; whatever restrictions may be imposed on the parties
to a suit before they come on to trial of the merits of their cause, no law, no rule
of court can deprive them of the right of having the merits tried by a jury, in cases
where that right is secured by the constitution—one of those cases I believe to be,
where the demand or matter in dispute exceeds twenty dollars:—were the
language of the constitution “the right of final decision by jury shall be inviolate,”
the case would be different: these are not the words; it is the right of trial, that is
to be inviolate. What is a trial? It is an investigation of the cause of complaint;
the defence and judgment of the court upon the hearing of the whole matter—Is
not this done by the magistrate when he takes cognizance of a cause, hears the
parties, examines the evidence, and pronounces judgment? Does the appeal alter
the nature of the trial, and make that no trial, which would have been a trial had
no appeal taken place? It is not the right of appeal, but the right of trial, which the
constitution guarantees, and in my opinion, it is as much a violation of that right,
to compel the citizen to proceed to trial before a magistrate, without the
intervention of a jury, in cases where the demand exceeds twenty dollars, as it
would be to prohibit him that right in the court of common pleas in similar cases.
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The reasons for my opinion, that the framers of the constitution meant to limit the
bounds of those cases which might be tried without a jury, and not merely to leave
it to the future legislatures to do it, have been given; if those reasons are not
conclusive, then that part of the constitution, which was intended to secure to the
people the right of trial by jury, is no security at all; for if the legislature may
abridge the right within narrower limits than they found it after the constitution
was framed; if they can take it away in cases under fifty dollars, they can take it
away in cases of five thousand dollars—if they can take it away in cases of
trespass—they can take it away when the title of land is in question; and I do not
conceive it to be any answer to this reasoning, to say, that the legislature, being
the immediate representatives of the people, will never so far forget their duty, as
to destroy this important right. The constitution intended to secure it inviolate—
and it is wholly immaterial as respects the right, whether it is violated in a lesser
or greater degree. It cannot be presumed, that the convention meant to leave to
the discretion of the legislature, or to the courts, the limitation or restriction of a
right, which the people possessed, and which is justly appreciated as the great
palladium of their liberties, inasmuch as whenever their rights and privileges are
called in question, they have through the medium of a jury trial, the determination
of that question themselves.
If we resort to arguments of expediency, either to explain a doubtful
clause of the constitution, or to find the true construction of our laws, we shall see
that it is of infinitely more importance, to preserve the trial by jury, the great
bulwark of our liberties, than to guard against the consequences of a judgment
which by setting aside some of the decisions of magistrates, may tend to open
disputes, that have been supposed to be settled. This, though an evil to be
avoided, where it can be done legally, does not strike at the foundation of any of
our rights; it may be an inconvenience to a few individuals, and there the mischief
ends; but it should be kept in mind, that in proportion as you encroach on the trial
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by jury, in the same proportion you take away the rights of the people. You take
the right from the many, and bestow it on the few, and whether you build up the
power of justices of the peace, or of higher courts upon the ruins of the jury, it is
equally a departure from the principles of a republican government, and a step
towards a more aristocratic form.
An objection has been stated which is supposed to run parallel with the
argument in favor of the extent of trial by jury, as claimed by the counsel of the
plaintiff in error. It is said, that if the right of trial by jury is extended to all cases,
where it might have been claimed at the period of our going into a state
government, the chancery jurisdiction of our courts is destroyed, because, sitting
in chancery, they proceed to hear & determine cases without a jury, that could not
have been tried antecedent to that period, without the intervention of a jury. The
three first sections of the third article of the constitution, expressly give the courts
jurisdiction in equity, as well as law. This jurisdiction, from its nature, precludes
the intervention of a jury in strict cases of chancery: but when certain facts come
in issue, even in chancery cases, these facts are ascertained by the verdict of a
jury, in a court of law upon an issue directed out of chancery. It is a sufficient
answer, however, to the objection, to say, that the same instrument which
guarantees the right of trial by jury, also vests in the court the power of trying
such causes as came before them, sitting as a court of chancery, according to the
known rules and established proceedings of such courts.—I have considered this
case as depending upon the construction of our own constitution and laws,
without quoting the authority of other decisions, though well aware, that in the
first point I am supported by the judgment of the supreme court of the U.S.1 and
of every court of the individual states, which has had the question before them, all
of whom have decided that the courts of law possess the power of enquiring into
1. Reporter’s Note: This is an apparent reference to Marbury v. Madison (1803), 5 U.S. (1
Cranch) 137,
2 L.Ed. 60.
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the constitutionality of legislative acts. Notwithstanding the high respect that is
due to such authorities, I should not have hesitated to give a different opinion had
I been convinced the decisions were erroneous.
As to the second point considered, I know of no authorities to direct the
judgment of the court.—If the question was doubtful, I should consider it my duty
to lean towards the side which appeared to favor the rights of the people, by
securing them the most important privileges; and I know of none more important,
than the right of trial by jury. If, by deciding the first question in favor of the
jurisdiction of the court—they are establishing the power of the judiciary; by
deciding the second against the constitutionality of that part of the act which
extends the jurisdiction of justices of the peace, they are abridging the power and
authority of the judiciary, and restoring it to the people.
I am of opinion, that the judgment of the court of common pleas, is
erroneous, and ought to be reversed.
TOD, J. (Concurring). In the consideration of this subject, two principles
present themselves for judicial determination.
lst. Has this court, sitting as a supreme judicial court for the state, the
constitutional right of declaring on the constitutionality of a legislative act?
2d. Is the act, or any part thereof, entitled “An act, defining the duties of
justices of the peace and constables, in criminal and civil cases,” in contravention
to the constitution of this state?
Existing as there does, to some considerable extent, a diversity of opinion
as to the powers of the court to test legislative provisions by the constitution, it
will become necessary, at least it will be received as an apology, that the
consideration of the court be directed to that subject.
Among the various duties which are imposed on any court, that of
guarding and protecting the constitution, is of importance paramount to all others.
It is deemed an instrument so deeply connected with the rights of a free people,
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that all those who are permitted to participate in the honors, powers, duties and
emoluments of any office whether of primary or subordinate consequence, are
required, under the solemnities of an oath, to support it. If it is thought prudent to
test the attachment of ministerial officers to the constitution, by the taking of an
oath to support it, the inference will not be deemed unreasonable, nor forced, that
the highly responsible judicial character is cloathed with power of preventing
encroachments on it.
The judges of this court have individually taken the same oath, and the
further oath to administer justice agreeably to the laws of the land. In this oath we
discover an epitome of the powers and duties of the court. When the law imposes
a duty, it necessarily affords the power of fulfilling that duty. If justice is to be
administered in conformity to law, it must be in compliance with the provisions in
the constitution—since the constitution is the supreme law.
There is no section or paragraph in the constitution which vests
exclusively either in the legislative or judicial branches of government, the power
of protecting it from infraction or violation.
We have but two classes of citizens whose official duties, very
immediately have relation to the constitution—the one is, those who compose our
legislative assembly—the other are judicial courts.
The characteristic duty of the first, is to enact laws—of the second is to
give an exposition of those laws. If the efficacy cannot be given to legislative
acts, without protruding on the limits of that supreme law, they are to be declared
a dead letter. It is unquestionably the duty of the legislature, to act within the
constitution; and the regard which is usually manifested for its inviolability, is
evident and merits our confidence. But the haste with which laws are passed,
precludes the possibility of that deliberate attention to constitutional objections,
which the nicety and importance of the subject makes requisite. A bill is often
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drawn and often urged to a final passage, without comparing its provisions with
the constitution.
From a candid and attentive perusal of the constitution, it will evidently
appear, that the intention of its framers, was to vest the power in question, in the
judicial courts.
In art. 3 sec. 1 of the constitution, it is provided that “the judicial power of
the state, both in matters of law and equity, shall be vested in the supreme court,
&c.” This article must mean something—it would be idle to call it a dead letter.
It is couched in terms positive and mandatory. Its obligation cannot be evaded. It
expressly cloaths [sic] the judiciary with the power of deciding on all “matters of
law and equity.” And it must be contended, that the constitution is now a law, or
the courts are bound to test all matters of law by it.
In the first sec. 8th art. of the constitution, the great objects to be secured
and perpetuated, are in strong terms pointed out, “That all men have certain
natural inherent and unalienable rights, among which are the enjoying and
defending life and liberty, acquiring, possessing and protecting property, and
pursuing and obtaining happiness and safety.” Let this section be anal[y]zed.
Does it, in itself guarantee the enjoyment of those unalienable rights, or does it
simply point to them as rights to be secured by legislative provision? The answer
is too obvious to be mistaken. The people in this, their fundamental law, have
entered into a solemn covenant with every individual citizen, that those inherent
rights shall be protected, even against the encroachments of legislative authority.
If a law was to be passed, inflicting death on a person convicted of larceny—or
that a particular class of citizens should have the exclusive privilege of acquiring
and possessing property, and that all others should be proscribed and doomed to
exile; could not the devoted victims of such legislative tyranny, claim, with a
confidence inspired by the constitution, the interfering power of the judicial
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courts? Could they not entrench themselves within the ramparts raised by the
constitution, and then in safety bid defiance to such attempts?
If an attempt by law, should be made to introduce slavery—to contract or
interfere with the rights of conscience—to compel an attendance on public
worship, or to maintain any ministry—to give preference to any particular mode
of worship—to establish a Religious test as a necessary qualification to office—to
discourage the practice of religion and morality, and diffusion of knowledge —the
establishment of schools and other means of instruction—to close the doors of the
printing presses—to prohibit the indisputable right of speaking, writing or
printing on any subject, or to remove the liability for an abuse of those rights—to
take away the right of trial by jury in criminal cases—to suspend by a general and
unlimited law, the writ of habeas corpus—to imprison for life, the person of a
debtor, whose only portion was absolute penury and want—to give laws a
retrospective operation —to impair the validity of contracts—to work corruption
of blood—or forfeiture of estate—to prohibit assemblages of the people,
peaceably made, to consult their common welfare: In all of these cases, I humbly
conceive, that courts have not only the power, but it is their indispensible duty, on
application according to the due and ordinary course of law, to cause “right and
justice to be administered without denial or delay.”
In the exercise of this power we are protected by the 7th sec. of the 8th
article of the constitution. “That all courts shall be open and every person for an
injury done him, in his lands, goods, person or reputation, shall have remedy by
the due course of law, and right and justice administered without denial or delay.”
It has been said and will probably be again said, that the legislature has the
sole right of determining on all constitutional questions—and that a mere passing
of a law decides its [constitutionality—Editor].
This extraordinary position shall share some attention. I have endeavored
to shew that legislative acts are subordinate to, and must be tested by,
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constitutional provisions. This is advanced as a general principle in all
governments, in which there are written constitutions. If a written constitution is
the supreme law, which is a warranted conclusion, all other laws which are
directly or constructively in opposition to it, can have no binding efficacy—they
are as though they were not. If legislative acts are to all intents obligatory on the
court—the constitution is a subordinate instrument—liable to be annulled, altered
and amended by legislative supremacy. Their acts would not only be equal, but
superior to that charter, which has the sanction of “We the people do ordain and
establish.”
From my view of this branch of the subject I hold myself as strongly
bound to test all legislative acts by the constitution, as I do to administer justice
without partiality.
We come now to the consideration of the second question:—Is that part of
the act entitled “An act, defining the duties of justices of the peace and constables,
in criminal & civil cases,” which gives jurisdiction to justices of the peace in civil
cases, to the amount of fifty dollars, excepting in cases of voluntary confession,
contrary to the spirit and evident meaning of the constitution of this state?
I shall in the first place, take into consideration that part of our
constitution, which expressly provides, “that the right of trial by jury shall be
inviolate.”
It is to be remarked, that this right is guaranteed by that power which
confessedly is the supreme power, the people. It is not a privilege secured by a
legislature, which may be withdrawn when legislative pleasure shall will it. It is
elevated above legislative reach, and in its nature so superior and supreme, as not
to be touched, so as in the smallest degree to [not be—Ed.] impaired. By direct
attacks it is not to be destroyed; neither by construction is it to be fritted away. If
violated by the enacting power, either intentionally or unintentionally, the judicial
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power should interpose and save it: If wantonly infringed by the courts, the allchastising power of impeaching, will remove from it the danger of overthrow.
Did the framers of the constitution have allusion to a right which then
existed, and which then was enjoyed; or to a right undefined and uncertain, which
then had no real and efficient existence; which might or might not, by a posterior
legislature, be created and defined, or until that was done, must stand as a
monument of the classic correctness and consummate wisdom of its authors?
The language itself is forcibly impressive, and incontrovertibly imports the
idea of an existing right; and the framers must have had in view an amendment to
the constitution of the United States as well as a law in operation at the time our
state constitution was adopted. It is a simple proposition, and carries a conviction
to the mind which no evasion can obviate. Even the possibility of a doubt, it
would seem is precluded. “The right” “ex vi termini,” has for its object
something which actually is, whether precisely known or not. To use such
language in relation to a right which has no existence, but which possibly may be
generated by future legislatures, would be the height of absurdity.
Suppose the language had been “the right of trial by jury is taken away.”
It would not be necessary for the legislature to define that right before the
deprivation would attach. It must appear evident that the right existed at the
adoption of the constitution; and the full enjoyment of that right claims the
unqualified protection of the constitution. Having such a sanction and guarantee,
it must be a complete and perfect right; and so long as the constitution remains
unaltered, it will admit of no addition, diminution, modification or qualification
whatever.
It remains for us to ascertain what the right of trial by jury was, when the
constitution took effect. The framers of that instrument, from the use of such
unequivocal language, must have had in view some principle, usage or law which
related to the trial by jury. It most conclusively results, that the constitution of the
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United States, or the then existing laws of this country, or both, were considered
when providing for the safety of that right. Let us resort to which we will, either
is of such authority as to give a satisfactory definition of the right.
Among the amendments to the constitution of the United States, we find
the trial by jury secured in all cases where the sum in demand exceeds, 20 dollars.
It is a matter of little consequence, in my view of the subject whether that clause
of the constitution of the United States is obligatory on the respective state courts
or not. It is a high species of evidence, that the intervention of a jury in all cases
where the amount in controversy exceeds twenty dollars, is, in its effect, salutary
and safe—and that it is in consonance with spirit of a wise and just republic. And
it would not be a far-fetched inference to say that the conventioners viewed the
amendment in the constitution of the United States, as binding on them as framers
of a constitution, so far at least, that the right therein defined should by the people
be solemnly declared inviolate. Since this court must declare the extent of the
right, it cannot be deemed arrogance of power or mal-feasance in office, to
consider that part of the constitution of the United States, as meriting
consideration.
Should this be deemed inconclusive, we will call to our assistance the law
of the territory, giving jurisdiction to justices of the peace, which was continued
in force by the constitution of Ohio.
The act alluded to, restricted the jurisdiction of justices in all civil cases to
twenty dollars. It therefore followed of course, that in all cases where the demand
exceeded that sum, the trial by jury was secured. For a number of years it had
been enjoyed; and that enjoyment remained uninterrupted, till the act under the
constitution of this state, which extended justices jurisdiction to thirty-five dollars
was passed.
When an individual or a body of men, express themselves by words, they
are to be understood generally in their usual acceptation. Were a legislature or the
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people to speak of the right of free suffrage, without using any qualifying
expressions, they must have reference to a right as then enjoyed and understood.
If this were not the rule as applied to written constitutions, their provisions would
lose the quality of an unerring rule, and yield to the authority of legislative
omnipotence.
Since the right of trial by jury, in almost all cases, where the sum in
demand exceeded twenty dollars, was secured to suitors, at the time the
constitution was adopted, and that too by a long established law, which law must
have been considered by the convention, for it made express provision for its
continuing in force—it is not a monstrous inference, that the constitution intended
to guarantee that right, as it was then enjoyed.
It is said, however, that the act in question does not take away the right of
trial by jury, nor any way impair it, as it allows appeals in all cases from the
adjudication of justices of the peace, to the common pleas.
This position requires consideration, since it involves in it the safety and
efficiency of the constitution itself.
From what has been urged already, it will appear that the constitution is a
rule, prescribed by the exclusive sovereign power in the state—the people. It
imposes obligation on all, and extends protection to all. On the inviolability of it
depends the existence of our government. Every attack on it is one step towards a
revolution. There is but one way in which it can be assailed rightfully, and that is
by the very power which ordained it.
If the right in question is a constitutional right, it is a perfect one—and is
protected by the constitution. No legislative aid is necessary; and every
legislative act on the subject is useless—therefore nugatory.
Whenever a cause is to be tried, where the demand exceeds twenty
dollars—it, in the first place, is to be tried by a jury. If either party to a suit
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claims a jury trial, he is entitled to it before that court in which the cause is to be
first heard on the merits.
The act in question, by securing to either party the right of appeal, does
not expunge from it all constitutional objection. The artifice resorted to, for
removing constitutional objections, is a secret attack—slow in its progress, but
sure. The more secret—the more dangerous—the more direct and open—the
more easy and triumphantly to be combatted.
A constitutional right is a right not to be shackled or limited by legislative
interference.
As the right was understood, at the framing of the constitution, in cases
where the demand exceeded twenty dollars—the suit must be instituted before the
court of common pleas where the trial by jury was in full exercise. Such was the
right of trial by jury then. What is that right under the existing act, defining the
duties of justices of the peace, &c.
If it is at all restricted, it is not kept inviolate. Under the last mentioned
act, justices of the peace decide to the amount of fifty dollars, without the
intervention of a jury, from whose decision an appeal will lie. The evils and
inconveniences which result to the party who wishes a jury trial, and for the
attainment of his wishes must appeal, are many and great.
1st. A decision on the merits, even by a single justice, will have its
influence at a subsequent trial, whether right or wrong.
2d. The condition of the bond to prosecute the appeal with effect, subjects
the sureties absolutely to the payment of the condemnation money.
In case a suit is commenced in the common pleas, the bail to the action
may surrender the principal and thereby exonerate themselves. The consequence
of which difference is, that many suitors may procur[e] bail to the action, who
cannot, on account of poverty, obtain sureties to prosecute his appeal.
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This is evidently restraining and shackling the right of trial by jury—and if
admitted to this extent, it may be carried to any extent, until that boasted right
shall be wholly abrogated.
There is another point of light, in which this subject may be viewed, and to
me, it is in itself conclusive.
“The judicial power of this state, both as to matters of law and equity,
shall be vested in a supreme court, &c.”
It requires no great depth of political science to discern that there is a wide
distinction between legislative power and judicial power. They are co-ordinate
branches of our government, which are distinct and separate in their natures—
independent and unblended in their operations.
A great and paramount object of the constitution is to prescribe to the
legislative and judiciary powers, the precise sphere in which each is to act, that
there may be no clashing interference or occurrency of authority.
“To declare what the law was and is, is a judicial power—but what it shall
be, is legislative.” Cranch, 2 vol. p. 277. Ogden vs. Blackledge.—
This principle in our constitution is founded in the wisest policy, as it
raises an insuperable barrier against encroachments of one branch on the rights
and powers of another.
The constitution has expressly declared “That no judge of any court of law
or equity, secretary of state, attorney general, lister, clerk of any courts of record,
sheriff or collector, member of either house of congress, or persons holding any
office under the authority of the United States, or any lucrative office under the
authority of this state (provided that no appointments in the militia, or justices of
the peace, shall not be considered lucrative offices) shall be eligible as a candidate
for, or have a seat in the general assembly.”—See Ohio constitution, art. 1. sec.
26.
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Why not permit judges of courts of law and equity, to have a seat in the
general assembly? The reason is equally found as obvious, that those whose duty
is to expound laws shall in no wise have a direct agency in the passing of laws. A
consolidation of such power would lead inevitably to oppression. The grand
bulwark of political security would be razed to the ground.
Let us compare this section of our constitution with the legislative act in
question.
The language of the constitution is, that “no judge of any court of law or
equity, shall have a seat in the legislature.” The rational construction to be given
that section, taking it together, is, that justices of the peace, are not judges of a
court of law or equity, in the legal meaning of the expression, but simply are
“triers of small causes,” whose powers as such, are constitutionally incapable of
extent.
Whether the respective branches of the general assembly, in deciding on
the qualifications of returned members, have given a correct construction to this
section of the constitution, by admitting justices of the peace to have seats in the
legislature as members, is a question which they have a constitutional right to
decide.
Conceding the point, that justices of the peace may hold seats in the
general assembly, it follows, that the extent of their jurisdiction is impliedly
limited by the constitution. If the jurisdiction of justices of the peace, may be
extended from time to time, they must cease to act simply as “triers of small
cases,” but assume the highly important and responsible character of judges of the
courts of law and equity. The moment that in fact they become such, they cannot
have seats in the general assembly. If in view of the constitution they are judges
of courts of law and equity, they can have no voice in the exercise of legislative
discretion.
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If justices of the peace may hold seats in the general assembly, and when
thus cloathed with legislative authority, may be instrumental in enlarging to an
indefinite extent, their judicial powers—there is no constitutional impediment to a
judge of the supreme court or common pleas, from acting in the double capacity
of law-giver and law-expositor.
To make our constitution speak such language—would be a libel on the
character of our rights, and a reproach to its framers.
Whether a justice of the peace, is a judge of a court of law or equity, or a
judge of law and equity is not on this occasion, necessary to be adjudicated—but
certain it is, that to declare the act in question law, certain constitutional rights
would be infringed.
The judgment of the common pleas court in this case was erroneous, and it
is my opinion that it be reversed.
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