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b. Dec. 11, 1773
d. April 11, 1841
5th Justice of the Supreme Court of Ohio
Term
May 13, 1806
to Feb. 10, 1810

GEORGE TOD

George Tod survived being impeached by one vote for finding that a statute enacted by the Ohio General Assembly was unconstitutional in 1807. This was the first case brought before the Supreme Court of Ohio to challenge the authority of the Ohio General Assembly.

He was born Dec. 11, 1773, in Suffield, Conn. to David and Rachel Kent Tod. He graduated from Yale University in 1795 with a bachelor’s degree. Yale also awarded Tod a master’s degree in 1798. Teaching school at New Haven, he also studied law at the Litchfield Law School, which was the first law school in the United States. He was admitted to the bar in Connecticut in 1797.

Tod visited Youngstown in 1800 and decided to settle his family in the Northwest Territory. He applied for admission to the bar, which was granted at the Northwest Territory General Court session held in Marietta in October 1800, and he returned to New Haven in 1801, to move his family to Youngstown.

On July 10, 1800, Northwest Territory Gov. Arthur St. Clair issued a proclamation that established Trumbull County with the town of Warren as the county seat. Tod was appointed prosecuting attorney on Aug. 25, 1800 by the judges of the newly established Trumbull County Court of Common Pleas. Supreme Court of Ohio Justices Samuel Huntington and William Sprigg reappointed Tod to be prosecuting attorney on June 7, 1803. Tod was elected clerk of Youngstown Township in April 1802 and was re-elected in 1803 and 1804. After Ohio became a state on March 1, 1803, Tod was elected in 1804 to the Ohio Senate to represent Trumbull County. He served from 1804 to 1806.

Gov. Edward Tiffin appointed Tod to the Supreme Court on May 13, 1806 to replace Justice Sprigg. Under the 1802 Ohio Constitution, Supreme Court Justices and judges of the courts of common pleas were elected by the Ohio House of Representatives and the Ohio Senate in joint session. Tod served until the Ohio General Assembly next met in December 1806. He was elected for a seven-year term on Jan. 1, 1807.

Tod helped establish the principle of judicial review granting the courts the right to review laws passed by the Ohio General Assembly to determine if they conflicted with the U.S. Constitution and the Ohio Constitution. The Ohio General Assembly enacted a statute in 1805 titled, An act defining the duties of justices of the peace and constables in criminal and civil cases. Justices Huntington and Tod ruled that section five of this statute was unconstitutional in Rutherford v. McFaddon (1807, unreported). A similar conclusion was found by Third Judicial Circuit Judge Calvin Pease in E. Wadsworth v. Solomon Braynard, Trumbull County Court of Common Pleas (1808). Members of the Ohio House were so incensed by the rulings that they brought impeachment charges against Tod and Pease on Dec. 24, 1808. Huntington was elected governor in October 1808, so the Ohio House did not pursue charges against him. They believed that the Court did not have the right to render a statute passed by the General Assembly unconstitutional. The Ohio Constitution charged the Ohio Senate with the responsibility of determining the judgment on Tod and Pease, who were tried separately.

On Jan. 9, 1809, Tod gave his defense in front of the assembled senators at the Statehouse in Chillicothe. He argued that the Ohio Constitution is the supreme law of the Ohio, subordinate only to the U.S. Constitution and the Acts of Congress. If the General Assembly’s acts were binding on the courts without review, the Constitution at times would be subordinate to the legislature when they passed laws that violated the Constitution. The General Assembly must be subordinate to the Ohio Constitution. He said, “If an act is passed, forbidden by the constitution, it is absolutely void.”  He pleaded with the senators for judicial independence:

“That if this article of impeachment can be sustained, the tenure of the judicial office, will hereafter depend on the will of the house of representatives and the senate, to be declared on impeachment, ungoverned by any established principles, and resting in their sovereign will, governed by their arbitrary discretion.”

The vote for impeachment was on Jan. 20, 1809; 15 senators voted to convict Tod and him remove him from office, while nine senators voted against conviction. Thus, he escaped being removed from office by one vote, as the votes of two-thirds of the senators were required for conviction. Pease also was acquitted.

Members of the General Assembly fired one more salvo in their attack on the Supreme Court and thus, on Tod and Pease. Until this point, Supreme Court Justices and common pleas judges held their offices seven years from the date that they were appointed by the General Assembly. Tod expected to serve until 1813 since he had been appointed in 1806. The legislature passed a resolution called the Sweeping Resolutions, stating that the current officeholders could not serve beyond the original seven-year term held by their predecessors, thus, vacating all judgeships in 1810. This allowed the Ohio General Assembly to appoint Supreme Court Justices and the common pleas judges who were more willing to follow the wishes of the legislature.

With little hope of being elected to another term on the Supreme Court, Tod finished his term on Feb. 10, 1810 and returned to Youngstown. Both he and fellow Justice Sprigg considered the Sweeping Resolutions to be unconstitutional. Correspondence between them indicates they considered riding the circuit in defiance of the newly appointed Justices and that they also drafted a protest they considered printing and distributing. In the end, they bowed to the will of the legislature.

In October 1810, Tod was elected to serve as Trumbull County’s representative in the Ohio Senate. He served in the legislative session of 1810 to 1811. Tod introduced a bill to repeal the Sweeping Resolutions. It passed the Senate by one vote and was tied in the Ohio House, where the tie was not broken. The Resolutions were finally repealed by the General Assembly in the legislative session of 1811-1812.

On May 7, 1804, Tod was elected a captain for the Second Regiment of the Fourth Division of Trumbull County. As hostilities heated between the United States and Great Britain, Congress passed a law in February 1812, increasing the size of the U.S. Army and calling for county militia to join. The 19th Regiment of Infantry was raised in Ohio and Kentucky, commanded by Col. John Miller and Tod was commissioned as a major in the Army on March 12, 1812, serving with this regiment. Tod was promoted to lieutenant colonel on March 13, 1814. He won praise for his coolness and courage in the Siege of Fort Meigs from April 19 to May 9, 1813, and the Battle of Sackett’s Harbor on May 19, 1813. Tod was given command of Fort Malden after it was evacuated by the British by Gen. William Henry Harrison on Sept. 27, 1813.

After the end of the War of 1812, Tod returned to Youngstown, where he resumed his law practice. Tod was elected by the General Assembly to be president judge of the Third Judicial Circuit for a seven-year term on Feb. 14, 1816, a territory consisting of Ashtabula, Cuyahoga, Geauga, Huron, Medina, Portage, Richland, Wayne and Trumbull counties. In 1824, Wayne and Richland counties were removed and Lorain County, which was formed from part of Huron County, was included. Justice Rufus P. Spaulding recalled riding with Tod in March 1823 from Warren to Cleveland, where Tod conducted Court. He reminisced in a speech to the Early Settlers Association of Cleveland in 1880:

“We made the journey on horse-back, and were nearly two days in accomplishing it. I recollect the judge, instead of an overcoat, wore an Indian blanket drawn over his head by means of a hole cut in the center. We came to attend court, and put up at the house of Mr. Merwin, where we met quite a number of lawyers from adjacent counties. At this time the village of Warren, where I lived, was considered altogether ahead of Cleveland in importance, indeed there was very little of Cleveland at that day…The presiding judge was the Hon. George Tod, a well read lawyer and a most courteous gentlemen, the father of our late patriotic governor, David Tod. His kindness of heart was proverbial, and sometimes lawyers would presume on it.”

Tod was re-elected by the General Assembly on Jan. 11, 1823, to serve another seven-year term as president judge of the Third Judicial Circuit. Finishing his term on Feb. 24, 1830, he re-established his law practice in Youngstown, where he practiced law until his death in 1841. Tod was elected prosecuting attorney of Trumbull County in 1833 and served until 1835.

In October 1797, Tod and Sallie Isaacs were married in New Haven, Conn. Born Jan. 12, 1778, Sally was the daughter of Ralph and Mary Isaacs. They had five children. On April 11, 1841, Tod died at his farm Brier Hill. He was buried in Oak Hill Cemetery in Youngstown. Sallie died Sept. 29, 1847 at Brier Hill and she was buried with her husband.