The Jacksonian Conservatism of Rufus P. Ranney. David M. Gold
Yet the majority report proposed that an unnecessary supreme court sit atop the judicial hierarchy. The court would have little to do and would have no jurisdiction that could not be better exercised at the district level. It would have a chief justice elected by the voters of the whole state and associates conscious of having “com[e] up from the districts”—a sort of grand pooh-bah presiding over a bunch of provincials. It would have an even number of justices who, if evenly divided, would in essence be confessing to the parties “that the court is powerless to decide between them—that the law is struck with a paralysis.” It would be a purely “paper court,” excluded from “participation in the every day business of judicial duty” and separated from daily familiarity and practical application of legal rules. The majority report, Ranney declared, envisioned an “august” court surrounded by a “luminous” bar sitting in the capital, “[i]ts dazzling appearance . . . such, that no county court lawyer could ever look upon it and live.” But the greatest judges, from Lord Mansfield to Chief Justice Taney, had been “stirrup judges,” riding the circuit and catching the spirit as well as the letter of the law (1:605–7).
Ranney had little use for the district appellate courts proposed by the majority. Outside of Hamilton County they would sit in only two places in each of eight large, multicounty districts, forcing attorneys and parties to travel great distances and making even the filing and copying of papers a burden. Moreover, appeals would be “as liberal as before,” and every equity case would be the subject of an appeal, which Ranney regarded as a major flaw in the majority’s system. “Who does not see,” asked Ranney, “that in all this you will experience great delay, to say nothing of the increased expense in bringing the cause to hearing.” Under the proposed system the appellate court would meet twice a year, “but to get the benefits of it without waiting a whole year, you may have to go to a remote part of the district, and you will of course have a greater delay, than if the cause was settled in the county in which it originated.” Under his own scheme, Ranney continued, appeals would be decided “on the spot, in the same county where the suit first commenced, by the two judges of the supreme court—the same number that now decide finally; all the difference is, they now decide on appeal, they will then decide in the first instance” (1:608–9).
Ranney also attacked the county courts proposed by the majority. They had insufficient jurisdiction to gain the respect of the community. Their judges’ compensation was fee-based, which could only induce them to corruption and an encouragement of litigation (1:609–10).
In defense of his proposed substitute plan Ranney declared it to be “simple and plain, and easily understood.” It provided for good courts in the first instance, rather than relying on good appellate courts to correct errors. It provided for no “unnecessary judges” and brought the courts to the bar, the parties, and the people. And, he contended, it was cheaper than the majority’s system, an assertion that Kennon rejected (1:610–11).
In response to Ranney’s attack members of the judiciary committee noted that nothing in the majority report prevented the legislature from requiring the district courts to meet in every county. They pointed out that the matter of whether a district court should be required to meet in every county in the district had been the most contentious issue in committee and claimed that Ranney was the only member who had refused to go along with the compromise embodied in the majority report (1:612–14, 617).
After further sharp debate the committee of the whole rejected Ranney’s amendment by a vote of 42–35 (1:621–22, 626). That was on June 28, 1850. On July 9 the convention, fearful of the cholera epidemic then sweeping the state, adjourned until December, when it reconvened in Cincinnati. Not until January 21, 1851, did the convention again take up in earnest the judiciary committee’s report.
Once again Ranney offered an amendment that provoked heated argument. This time Ranney sought to compel the supreme court to meet at least once annually in each of nine districts. His aims, as before, were to expedite justice, reduce costs, and bring the courts closer to the people. No one else from the judiciary committee spoke in favor of the amendment, and only Humphreville voted for it. The amendment went down to defeat 50–45. But Ranney vowed to keep offering amendments to have the supreme court sit in different places throughout the state—five, and if that failed, four, and if that failed, three. And he promised to demand the yeas and nays each time so that the voters could see who supported “centralization” and who favored “the equalization of the benefits of the judicial system.” Ranney kept his promise, at least to the extent of demanding that the supreme court sit in four different places, but the convention soundly defeated his proposal (2:368, 365, 376, 685–86).9
After Ranney lost his first bid to create a traveling supreme court, another delegate offered an amendment to require the district courts to meet every year in every county. In the course of another bitter debate, Ranney accused the Whigs of concocting a judicial system so objectionable that even the Whig papers opposed it. The Whigs knew that the constitution produced by the convention would be “likely to cut up monopoly and exclusive privilege.” If they could get the Whig papers to stir up popular animosity toward the proposed judicial system, they could send the whole constitution down to defeat. When the time came to vote, Ranney finally triumphed (2:368, 376, 383–86). The victory, however, was short-lived; the convention adopted a Whig modification allowing the General Assembly to authorize at least three annual sessions in at least three places in any district where annual sessions in each county would be “inexpedient.” Ranney of course voted against the amendment, but it passed by two votes and ultimately found its way into the constitution (2:388).
Despite his objections to the judicial article of the new constitution, Ranney announced during the convention’s second session that he would vote for the constitution because he expected it would allow for easy amendment. Ranney chaired the committee on future amendments, was “the father of the [committee’s] report,” and was the only member of the committee to take part in the debate over the amending process (2:432, 427–36, 446).
The committee report retained, with slight modification, the provision of the 1802 constitution that authorized the electors to call a constitutional convention upon the recommendation of two-thirds of the members of each legislative chamber. Moreover, it required that the question of calling a convention be placed on the ballot every twenty years. The report’s great innovation, though, was to allow either house of the General Assembly to initiate constitutional amendments. Under Section 1 of the report a proposed amendment would have to receive a three-fifths majority in each house and be published in a newspaper of every county having a paper once a week for six months before the next general election. The amendment would then appear on the ballot and become law if a majority of electors voting at the election approved it (2:339).
The report proved contentious. One delegate thought that Section 1 would turn the General Assembly into a “perpetual constitutional convention.” The possibility of a convention being called every twenty years agitated conservatives even more than the prospect of legislative meddling with the constitution. Ranney, however, pointed out that the provision had “its origin in the theory that there should be some power in the people themselves, to originate amendments to the Constitution.” Future generations would inherit the constitution then being drawn up. “Is it not justice then to declare that when we deliver it into their hands, they shall have the privilege to say, whether or not, they will be bound by it?” (2:428–30).
As usual when Ranney took part in debate, the discussion turned sharp and personal. Ranney accused Simeon Nash of being congenitally opposed to every form of progress. Nash, he declared, “would have made a first rate member of Parliament for the times of James the First. For, being admonished that he should not meddle with matters of State, he would be a very obedient man.” As it happened Ranney could have curbed his acerbic inclinations without harm to his cause; the committee of the whole made only one small change to Ranney’s report, and the convention adopted all three sections with little opposition (2:430–31, 446).
After approving the report the convention referred it to the committee on revision, enrollment, and arrangement. That committee, also chaired by Ranney, was responsible for cleaning up the language of the reports of standing committees as adopted by the convention and locating the provisions logically within the final document. Although