charge was decided by the court, by a vote of sixteen to eight, to be insufficient and inadequate to sustain an impeachment.

This, however, did not end the conflict; the question of removing the judges assumed another form. The Constitution fixed the judicial term of office as seven years. That period had elapsed since the first session of the General Assembly and the theory was advanced that a new and general election of judges should be held. In this way those judges who had been elected to fill vacancies could only fill out the residue of the original term of seven years, and not a whole term. This gave the Legislature the opportunity to fill the judicial offices with new men of their own liking.

The opponents of this doctrine claimed that it was opposed to the Constitution, and that it was violent and revolutionary. They contended that every judge elected to fill a vacancy was elected for seven years and entitled to serve that period unless constitutionally removed. To support this construction reference was made to the law regulating commissions, by which it was shown that it was the practice to commission newly elected judges for a full term.

On January 18, 1810, the General Assembly passed a resolution adopting the construction first recited here, and extending the principle to the Secretary of State, Treasurer of State and Auditor of State. The resolution in effect declared all the judicial offices vacant, and the Legislature proceeded to elect Judges of the Supreme Court, the State executive officers, and judges of the court of common pleas. Thus, by a single resolution, the General Assembly swept

out of office every judicial and executive officer of the State; at the same session legislation was passed vacating the office of every justice of the peace, and providing for the election of their successors.

Such was the effect of the "Sweeping Resolutions,” as they were called in the political parlance of the time, that the whole State was thrown into confusion. Some of the judges thought the construction of the Constitution wrong, and refused to acknowledge the change. Others who held unexpired commissions and had been again elected, refused to accept their new commissions, and claimed their seats under the old ones. The administration of justice was delayed; respect for the law was lessened; and the whole effect of the political intrigues against the judiciary was bad.

The most serious, at the same time the most scandalous of these proceedings was the attempt to intimidate the judiciary by impeachment. Even at this late day one wonders how partisanship could be so lawless as to select such a weapon. The question plainly stated was this: the Federal Constitution guaranteed trial by jury in suits involving over twenty dollars; the Ohio Legislature said there should be no jury unless the amount involved over fifty dollars. The court decided the legislative act unconstitutional and void. This was not an intricate nor complicated legal situation; the duty of the court was plain.

The right and power of the judiciary to declare void legislation repugnant to the Constitution was established by the United States Supreme Court in 1803, five years before these impeachment proceedings. Chief Justice Marshall in Marbury vs. Madison,

(1 Cranch, 137) in a learned and masterly decision established by his inexorable logic and profound reasoning the power of the courts on this question. In his decision he said: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

"So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must decide which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.'

Applying this principle to concrete examples he made it so plain that even laymen could see the irresistible force of his reasoning. He gave the following examples: "It is declared that 'no tax or duty shall be laid on articles exported from any State.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?

"The Constitution declares 'that no bill of attainder or ex post facto law shall be passed.'

"If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve?

"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'

"Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

"From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature."

Alexander Hamilton in the Federalist, No. 78, had this principle in mind when he wrote thus: "The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words, the Constitution ought to be preferred to the statutes, the intention of the people to the intention of their agents.

In passing from this subject it may be remarked that the principle that courts have authority to pass upon the validity of legislation, had been asserted in at least five States before the adoption of the Federal Constitution, viz.: in New Jersey in 1780; in Virginia, in 1782; in New York in 1784; in Rhode Island in 1786; and in North Carolina in 1787.

The motive that actuated the Ohio Legislature to impeach the judges was of course resultant from the spirit of democracy that was prevalent at that period.

It was simply the recurrence of the dominant note of Jefferson's doctrine of popular powers included in the doctrine of States' rights. The Legislature represented the people, and the people were supreme. To limit their passions, prejudices or partisanship, as was the purpose of the Constitution, infuriated the popular body, and they transcended their power in their punishment.

The State election of 1807 resulted in what is one of the most interesting situations of the period. Nathaniel Massie and Return J. Meigs, Jr., were rival candidates for the Governorship. The election was contested before the Legislature; it is the only instance of such a contest in the history of the State and deserves more than passing mention. Nathaniel Massie as the past record shows was a man of great importance in the founding of Ohio. He was one of the first pioneers, and had done much for statehood. He was prominent politically and had in Southern Ohio a strong following; an ardent supporter of the Democratic-Republican party he was easily a man of gubernatorial rank. He belonged to the Virginia contingent