On the evening of June 15, 1874, Edward Ryan of Milwaukee went to bed a tired and discouraged man, musing upon a lifetime of hard fights and frequent defeats. Ryan's career had begun promisingly in the 1830s, but his loyalty to the Democratic party had kept him from achieving political success in Wisconsin, and his temper had kept him from achieving the professional and financial success that his talents had promised. His opposition to the Lincoln administration during the Civil War had decimated his legal practice and had forced him close to poverty. Rumor had it that Gov. William Taylor might appoint Ryan to fill the Wisconsin Supreme Court position recently vacated by Chief Justice Luther S. Dixon, but Ryan had heard nothing from the governor and suspected he was out of the running. He was 64 years old; his health was poor; his wife had left him two years before. The remainder of his life offered little to look forward to.
At six the next morning, Ryan was awakened by a loud knocking. He opened the door, saw a stranger, and angrily asked: "What do you want?" Taken aback, the stranger replied: "I bring you your commission as chief justice of the state, with compliments of Governor Taylor, and I congratulate you." Thus began the final six years of Ryan's life, during which he would leave a permanent imprint on Wisconsin law.1
Early Years (1810-1850): The Anti-Bank Crusade and the Wisconsin Constitution
Edward Ryan's approach to life and the law reflected a unique combination of populist and elitist sentiments. Three main factors shaped Ryan's outlook: his family origins, his classical and political training, and his own personality. Ryan was born in 1810 in County Meath, Ireland, to a middle-class family that at one time had known wealth and power but had declined during the generation preceding Ryan's. He received a classical education at Clongowes Wood, an elite private school near Dublin, which gave him a love of books and intellectual argument he retained all his life. He also developed a disdain for popular entertainment and an intolerance of human frailty.2 The latter traits may have arisen from his insecurity about his place in the Anglo-Irish class structure - an insecurity aggravated by his inherent disposition, in the words of his biographer, "to hate evil more than to love good."3 However, these weaknesses were offset by Ryan's sharp intelligence and honesty and a thirst for hard work.4
In 1830 Ryan emigrated to New York, where he acquired the final core component of his identity: a loyalty to the values of Jacksonian democracy. Through family connections and his own talents, Ryan rose quickly: in particular, he became an associate of William Leggett, the editor of the New York Evening Post, who was a leader in Jacksonian intellectual circles.5 Ryan acquired from Leggett and other mentors a thoroughgoing Jacksonian distrust of centralized government, a distrust of banks and other large corporations, and a firm belief that the ideal society was one of small communities dominated by independent farmers and small shopkeepers with governmental power placed in the hands of the people rather than a gentlemanly elite. For the rest of his life Ryan steadfastly adhered to these values.6
In 1836 Ryan concluded that better professional opportunities lay in the West, and he moved to Chicago, which was then a small hamlet. Ryan had only mixed success in Chicago: his discomfort with the more unsavory aspects of politicking and the fact that his sympathy with Chicago's working people was more intellectual than heartfelt were obstacles to success. In 1842 he moved to Racine. When Wisconsin called a constitutional convention in 1846 in contemplation of statehood, Ryan won election as a delegate.7 The 1846 convention brought him to statewide notice, but it also gave him a reputation for controversy that would endure.
The 1846 convention was dominated by "Barnburner" Democrats eager to enshrine Jacksonian reform principles in the state constitution. In the end, they failed because they moved too far ahead of popular opinion. Four days after the convention opened, Ryan submitted an article that would have effectively abolished all banking in Wisconsin and would have phased out paper money in favor of specie. Ryan presented the article to the convention as a needed antidote to the Wisconsin Marine & Fire Insurance Co., which had operated as Wisconsin's leading bank and whose notes served as currency during the territorial period. Ryan argued vehemently that the Marine was too powerful, that it and other banks posed a threat to democracy and a stable economy, and that they had to be stopped.8 Ryan's colleagues initially approved the article, but on reconsideration, many of them concluded the article was too "inflamed and revolutionary." For better or worse, Wisconsin's economy was becoming more urban and industrialized, and banks might be necessary in the future. The article narrowly survived a reconsideration vote, but several prominent delegates repudiated the draft constitution because of the article. The voters agreed, and the 1846 constitution was defeated at the polls.9 In 1848 a new convention (in which Ryan did not participate) created a constitution that left banking laws up to the legislature; this time, the constitution passed.10
The Civil War Era (1850-1874): Temporary Federalist, Peace Democrat
Ryan spent the first years after statehood developing his legal practice. He quickly gained recognition as one of the foremost lawyers in Wisconsin, but he also gained a reputation for being hot-tempered and difficult to deal with. Ryan's strengths and weaknesses came to the fore in 1853 when he acted as prosecutor in the impeachment trial of Circuit Judge Levi Hubbell before the Wisconsin state senate. The charges against Hubbell involved acts such as talking with litigants outside his court and giving advice to lawyers in cases pending before him; though such acts are clearly unethical under modern standards, they reflected court practices that were all too common in the 1850s. Ryan spared no oratorical effort to paint Hubbell in dark colors, informing the legislature that if it acquitted Hubbell, it should erect a new statue of Justice in the capitol: "A jaded, decayed, broken, unclean, diseased wanton, blinking from behind the distorted bandages put upon her eyes to dupe the scruples of mankind."11 Neither man triumphed. Hubbell was acquitted, but Ryan's attacks ruined his career; Ryan's intensity won him respect but little affection. Nevertheless, after Ryan's crusade "Wisconsin judges paused before they acted, and the crudities of frontier morality gradually disappeared from the courtroom."12
Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting Nothing to Providence: A History of Wisconsin's Legal System (1999) and has taught as an adjunct professor at Marquette University Law School.
Ryan enhanced his reputation for probity when he represented Coles Bashford, the Republican candidate, in a successful challenge to incumbent governor William Barstow's apparent victory in the 1855 gubernatorial election. Even though Barstow was a fellow Democrat, Ryan believed Barstow's narrow margin of victory came from fraudulent ballots and that upholding integrity in government was more important than partisan loyalty. The supreme court agreed and unseated Barstow.13
As the Republican party rose to power in Wisconsin and the nation moved toward civil war, Ryan was relegated to the political minority. In 1850 Congress enacted a Fugitive Slave Act that required northern states to assist in capturing runaway slaves and returning them to their owners.14 Wisconsinites deeply detested the Act, and in 1854 supreme court justice Abram Smith plunged Wisconsin into a confrontation with the federal government when he held in In re Booth that the Fugitive Slave Act was unconstitutional.15 Smith criticized the Act on political as well as legal grounds. He denounced the Act as a "wicked and cruel enactment"16 and struck it down based on a novel states' rights theory: he reasoned that even though the U.S. Supreme Court had indicated in previous decisions that fugitive slave laws were constitutional, Wisconsin as a sovereign state was not obligated to follow those decisions.17 Wisconsin was the only state that declared the Act unconstitutional.
Federal authorities retained Ryan as special counsel to appeal Smith's decision to the full Wisconsin Supreme Court. Ryan's Democratic affiliation and his love of law as an instrument of order far outweighed any sympathy he might have had for Smith's criticism of the central government, and he made an eloquent argument urging Smith and his colleagues to consider the long-term consequences of Smith's states' rights doctrine. "If the compromises of the Constitution be thus practically nullified," Ryan argued, "the Constitution cannot be sustained ... And the system which, with all its inherited evils and all its own sins, is still the political hope of all mankind, may be led step by step into dissension, disruption and civil warfare, [by] those who, trusting nothing to concession, nothing to time, nothing to Providence, would destroy everything imperfect, in a world in which nothing is perfect."18 Ryan lost: the full court approved Smith's decision by a 2-1 vote. A majority of Wisconsinites sided with the court, which continued to defy the U.S. Supreme Court even after it reversed the Wisconsin court's decision in 1859.19 The Wisconsin Supreme Court continued to maintain for many years thereafter that it owed no deference to the federal high Court.20
Both Ryan and his political opponents shifted their view of the federal government after Abraham Lincoln was elected president in 1860. A host of civil liberties dilemmas arose out of Lincoln's prosecution of the war, most notably a concern over his suspension of habeas corpus in order to quell antiwar activities in the North and widespread opposition to the military draft instituted in 1862, which culminated in severe riots in Port Washington and several other eastern Wisconsin cities.21 During the war, Ryan reasserted his Jacksonian distrust of central authority: he became the leader of the "peace" or "Copperhead" faction of the Democratic party in Wisconsin, which opposed emancipation and any expansion of federal powers in order to prosecute the war. Ryan challenged both Lincoln's suspension of habeas corpus and the draft in the Wisconsin Supreme Court. In In re Griner (1863), the court rejected Ryan's argument that only Congress, not Lincoln, could create conscription; but in a companion case, In re Kemp (1863), the court held Congress could not delegate suspension of habeas corpus to Lincoln.22 Fortunately for the president, Congress quickly ratified his suspension of habeas corpus and in In re Oliver (1864), the court held that Congress's action mooted its decision in Kemp.23
Ryan's opposition to Lincoln and an intemperate speech he made to the Democratic state convention in 1863, criticizing the president as "a mere doll, worked by springs" in the hands of those who were "growing rich on the misfortunes of the nation," made him anathema to many Wisconsinites. As a result, his legal practice declined after the war and he spent an increasing amount of his time fending off creditors.24 His reputation for honesty continued unblemished, however, and in 1870 he was elected Milwaukee city attorney as part of a municipal reform movement. Ryan was defeated for reelection in 1873, and it appeared he would resume his descent into oblivion.25 But providentially, a new reform movement arose just as he left office. The movement was fueled mainly by Wisconsin voters' resentment of high railroad freight rates and their sense that the Republican party unduly favored railroads over agrarian interests. In late 1873 the movement elected William Taylor governor and gained control of the legislature.26
The new legislature promptly enacted a law known as the Potter Law - Wisconsin's first major regulatory law - that fixed maximum railroad rates and created a commission to enforce them. The state's major railroads challenged the Potter Law as an unconstitutional taking of property. Shortly before their case was to be heard in the supreme court, Chief Justice Dixon resigned unexpectedly. After some hesitation, Gov. Taylor concluded that Ryan's honesty and his Jacksonian prejudice against concentrated power meant he would be "all right" on the Potter Law issue and that he was the best candidate to replace Dixon.27 Taylor may have been influenced by an 1873 speech Ryan gave at the U.W. Law School in which he warned of the threat posed by "vast combinations of unexampled capital" and asked: "Which shall rule - wealth or man?" Robert LaFollette, who was a university student at the time, later cited Ryan's speech as an important influence on his career and helped make it famous.28
Last Years: Making Many Marks on Wisconsin Law (1874-80)
Three months after joining the court, Chief Justice Ryan wrote the court's decision upholding the Potter Law.29 The railroads, relying on the U.S. Supreme Court's decision in the Dartmouth College case 50 years before,30 argued that the corporate charters they had received from the legislature constituted binding contracts and that any subsequent regulatory measure would impair those contracts. Ryan rejected the argument on the ground that Wisconsin, unlike the states whose laws were at issue in Dartmouth College, had a reserved powers clause in its constitution that gave the legislature full power to revoke or modify corporate charters.31 Characteristically, Ryan did not stop there: he criticized the reasoning of Dartmouth College and warned that in the future, it would be increasingly necessary for the legislature and the courts to guard against misuse of the great power corporations were acquiring as a result of the new industrial age. Ryan noted that the railroads had attacked the Potter Law as "an act of communism," and his reply was blistering. "[T]hese wild terms," said Ryan, "are as applicable to a statute limiting the rates of toll on railroads, as the term murder is to the surgeon's wholesome use of the knife, to save life, not to take it. Such objections do not rise to the dignity of argument. They belong to that order of grumbling against legal duty and legal liability, which would rail the seal from off the bond."32
The Potter Law case is perhaps the most important case ever decided by the court. Ryan's opinion was so forceful that it established beyond all doubt that the legislature had broad power to regulate corporations. Indeed, in later years opponents of regulation invoked Ryan's opinion as an argument against further reform: they argued that Wisconsin could afford to move slowly because the Potter Law case guaranteed that reform could be enacted in the future if it was ever really needed. During the Progressive era (1900-1915) the Wisconsin Supreme Court, unlike many federal courts and other state courts, refused for the most part to use the Dartmouth College contract impairment doctrine or expansive notions of "substantive due process" to check reform. In so doing, the court was influenced heavily by the Potter Law case.33
Ryan made several other important contributions to Wisconsin law during his six years on the court. The state constitution required that taxation be "uniform," but the first legislature after statehood created a deeply flawed system that generated wide disparities in local taxation and penalized communities that tried to value their property fairly.34 Under Ryan, the court waded into the controversy and produced some improvement. In Schettler v. City of Fort Howard (1877) Ryan, speaking for the court, held that all property must be assessed at 100 percent of value. Ryan recognized that Schettler would require wrenching changes for many localities but warned that "it appears to me better that the state ... should suffer inconvenience, than that our whole system of taxation should ... be a fraud upon the constitution."35
Somewhat surprisingly, despite his defense of federalism in the Booth case, Ryan as chief justice carried on the court's policy of scrutinizing federal statutes for encroachment on state rights. The court had continued to defend state rights in the 1860s and early 1870s, mostly in the context of challenges to federal removal statutes.36 In State ex rel. Drake v. Doyle (1876), Ryan upheld a state law requiring revocation of the license of any corporation that removed a case brought against it in Wisconsin. Ryan reasoned that Wisconsin had a paramount right to prescribe the terms and conditions under which companies could do business in the state and that in the Doyle case, such right trumped Congress's otherwise paramount right to enact removal laws.37
A case for which history has judged Ryan less kindly is In re Goodell (1875).38 For most of the 19th century, the prevailing social view was that women were more virtuous than men but were also more sheltered from the realities of commerce and should remain so. Ryan was a firm supporter of this view, and throughout his life he criticized women who tried to break its boundaries. After the Civil War, a few pioneering women practiced law in local courts; Lavinia Goodell of Janes-ville was one of them. When Goodell applied for admission to the supreme court bar, Ryan denied her application: he lectured that the "callings of women, inconsistent with [the] duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it."39 The legislature did not agree. It promptly enacted a statute allowing women to practice law, and in 1879 Goodell renewed her application and was admitted to the supreme court bar over Ryan's dissent.40 The most that can be said in Ryan's defense is that his view of women was within the mainstream for his times (although at the conservative end of the mainstream) and that while he had trouble getting along with many types of people during his life, he was not a misogynist. Temper and loneliness, as well as constant financial problems, plagued Ryan throughout his judicial career until his death in October 1880.41
Edward Ryan was a ubiquitous presence in Wisconsin law and politics during the first 35 years of the state's history. One cannot fully understand that history unless one understands Ryan. The most important key to Ryan is his deep belief in the Jacksonian vision of a decentralized agrarian society in which any concentration of power could only be an evil. Ryan believed the rule of law was the strongest protection against such evils and against all other injuries that might result from human frailty; as a result, he became a true acolyte of the law. These beliefs drove his actions in the 1846 constitutional convention; in the Hubbell and Bashford-Barstow controversies; in the fight over Abraham Lincoln's war measures; and in the Potter Law case and most of his other work while on the supreme court. Ryan's support of the federal government during the Booth controversy was not inconsistent with his Jacksonian beliefs: he believed the central issue there was respect for the rule of law and that federal fugitive slave laws were not a bid for power at the expense of the states.
Many of Ryan's views failed to stand the test of time. Banks and corporations became an integral part of the Wisconsin economic landscape, and federal power increased steadily during and after the Civil War despite his best efforts against both trends. But Jacksonism has left a permanent imprint on Wisconsin law, most notably in the area of corporate regulation, and Ryan contributed greatly to making that imprint.
1 For an excellent overview of Ryan's life and political and legal career, see Alfons J. Beitzinger, Edward G. Ryan: Lion of the Law (Madison, 1960). The delivery of Ryan's commission is described at Beitzinger, supra, at 110.
2 Beitzinger, supra note 1, at 1-3; John B. Winslow, The Story of a Great Court, 311-17 (Chicago, 1912).
3 Beitzinger, supra note 1, at 36.
4 See id. at 95-97, 170-71; Winslow, supra note 2, at 311-17.
5 Beitzinger, supra note 1, at 3-5.
6 Id. For an overview of the rise of Jacksonian democracy and the values it incorporated, see Arthur Schlesinger Jr., The Age of Jackson (Boston, 1945), and Rush Welter, The Mind of America 1820-1860 (New York, 1975).
7 Beitzinger, supra note 1, at 5-15.
8 Id. at 15-17; Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System, 55-57 (Madison, 1999); Journal of the 1846 Constitutional Convention, Oct. 9, 1846, reprinted in Milo M. Quaife, ed., The Convention of 1846, 70-71 (Madison, 1919).
9 Ranney, supra note 8, at 60-61.
10 Beitzinger, supra note 1, at 17-20, 22-25; Ranney, supra note 8, at 60-61, 67-68; Ray A. Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. Rev. 648 (1949) and 1952 Wis. L. Rev. 23 (1952).
11 Id. at 38 quoting T.C. Leland, ed., Trial and Impeachment of Judge Hubbell, 779-80 (Madison, 1853).
12 Id. at 39; Winslow, supra note 2, at 314. For a general description of Hubbell's trial and its significance, see Ellen Langill, Levi Hubbell and the Wisconsin Judiciary: A Dilemma in Legal Ethics and Non-Partisan Judicial Elections, 81 Marq. L. Rev. 985 (1998).
13 State ex rel. Bashford v. Barstow, 4 Wis. 567 (1856). The Bashford case has enduring importance because it confirmed that the Wisconsin Supreme Court has the final power to declare what the law is in Wisconsin. See 4 Wis. at 659-62, 748. For a good general description of the 1855 election contest and its resolution, see Winslow, supra note 2, at 97-107; E. Bruce Thompson, Matthew Hale Carpenter: Webster of the West, 41-45 (Madison, 1954).
14 9 U.S. Stats. at Large 462 (1850); see James M. McPherson, Battle Cry of Freedom: The Civil War Era, 78-87 (New York, 1988).
15 3 Wis. 1 (1854).
16 Id. at 21.
17 Id. at 24-25; see Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842); Jones v. Van Zandt, 5 How. (46 U.S.) 215 (1847). Smith initially declared the Act unconstitutional sitting alone, hearing a motion for a writ of habeas corpus. Two months later the entire court affirmed his decision by a 2-1 vote. 3 Wis. 54 (1854).
18 Ranney, supra note 8, at 102 (quoting Madison Daily Argus and Democrat, June 30, 1854).
19 3 Wis. at 54 (full court decision); Ableman v. Booth, 21 How. (62 U.S.) 514 (1859); Ableman v. Booth, 11 Wis. 501 (1859) (refusing to file U.S. Supreme Court's decision).
20 See Moseley v. Chamberlain, 18 Wis. 700 (1861) (holding a diversity removal statute unconstitutional; 2-1 decision); Knorr v. Home Ins. Co. of New York, 25 Wis. 143 (1869) (refusing to strike down removal statute benefitting foreign corporate defendants; 2-1 decision); Whiton v. Chicago & Northwestern R. Co., 25 Wis. 424 (1870), reversed, 13 Wall. (80 U.S.) 269 (1872) (striking down statute allowing removal by foreign plaintiffs; 2-1 decision). See generally Ranney, supra note 8, at 113-19.
21 The Port Washington riot is vividly described in Druecker v. Salomon, 21 Wis. 621, 623-24 (1867). For a good general overview of the legal dilemmas raised by Lincoln's war measures and their resolution, see James G. Randall, Constitutional Problems Under Lincoln (1951).
22 16 Wis. 423 (1863); 16 Wis. 359 (1863).
23 17 Wis. 681 (1864).
24 Beitzinger, supra note 1, at 75-99.
25 Id. at 100-06.
26 For a history of the reform movement and anti-railroad sentiment in Wisconsin, see George H. Miller, Railroads and the Granger Laws, 151-60 (Madison, 1971). For an overview of the legal treatment of railroads prior to 1873, see Robert S. Hunt, Law and Locomotives (Madison, 1958) and Ranney, supra note 8, at 123-34.
27 Wis. Laws 1874, c. 273; Beitzinger, supra note 1, at 108-11.
28 Beitzinger, supra note 1, at 105.
29Attorney General v. Chicago & Northwestern R. Co., 35 Wis. 425 (1874).
30 4 Wheat. (17 U.S.) 518 (1819).
31 35 Wis. at 574; Wis. Const. (1848), Art. XI, § 1.
32 35 Wis. at 580.
33 Ranney, supra note 8, at 154-55. For an explanation of the substantive due process doctrine, see Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins and Development, 525-26 (4th ed. 1970).
34 The system provided for elected assessors who were often susceptible to local pressures to keep assessments low, and it required assessors to accept a property owner's valuation of his property if the owner submitted an affidavit. Rev. Stats. 1849, ch. 15; see John O. Stark, "A History of the Property Tax System and Property Tax Relief in Wisconsin," 1991-92 Wisconsin Blue Book 103, 105.
35 43 Wis. 48, 51 (1877); see Beitzinger, supra note 1, at 142-45; see also Marsh v. Clark County, 42 Wis. 502, 516-18 (1877) (a pre-Schettler case in which Ryan put the state on notice that lax assessment practices would not be tolerated); Laws 1878, ch. 334 (modifying the property tax system in response to Schettler); Plumer v. Marathon County, 46 Wis. 163, 5 N.W. 416 (1879) (striking down the 1878 law); Laws 1879, ch. 255 (enacted in response to Plumer); Flanders v. Town of Merrimack, 48 Wis. 567, 4 N.W. 741 (1879) (upholding 1879 law).
36 See cases cited at note 20, supra.
37 Laws 1872, ch. 64; 40 Wis. 175 (1876), aff'd, 4 Otto (94 U.S.) 535 (1876), subsequently overruled sub silentio by Terral v. Burke Construction Co., 257 U.S. 529 (1921).
38 39 Wis. 232 (1875).
39 39 Wis. at 245.
40 In re Goodell, 48 Wis. 693, 81 N.W. 551 (1879).
41 Beitzinger, supra note 1, at 166-70.