USA > Wisconsin > A political history of Wisconsin > Part 9
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Pennsylvania when that was a slave State, and he manumitted those when it was very unpopular to do so. His uncle in Balti- more set his slaves at liberty also, having become convinced that . to hold them in bondage was a crime against human nature. So it is only reasonable to suppose that Judge Miller's sympathies were not in favor of slavery. He often said that he did not believe any Northern man could sanction that wicked institution. He imprisoned Booth because it was his plain duty to do so, and to execute an obnoxious and inhuman law of Congress, a law which the Supreme Court of the United States had declared to be con- stitutional. He had not sworn to support the "higher iaw." He must enforce the law as he found it, or resign. President Grant once said that the quickest way to get an obnoxious law repealed was to enforce it. It is not forgotten how the mob that broke in the jail door and rescued Glover, stopped in front of Judge Miller's residence and gave him three groans, and applied insult- ing epithets to him. It has often been said that Booth's pardon. which was issued just before President Buchanan left the presi- dential office, was due to the kindly offices of James R. Doolittle. . then United States Senator from Wisconsin. That is a mistake. No doubt Judge Doolittle gladly did what he could to get Booth set at liberty, but his pardon was procured by quite another influ- ence. It was due to the good offices of Judge Miller himself. He was a Pennsylvanian by birth and knew President Buchanan per- sonally and well. He wrote Buchanan without solicitation from any quarter that it would be a graceful ending of "this unfortunate affair" if the President wouldl issue to Booth immediately an unconditional pardon, on his retirement from the office of chief magistrate. Buchanan immediately replied. thanking Judge Mil- ler for the suggestion, and assuring him that he would act upon it. It is reasonable to suppose that the judge who sentenced Booth to prison would have more influence with the President in procuring a pardon than any other person. This fact has never . before been in print, though it has long been known to a few. of Judge Miller's intimate friends. It was an act of kindness towards his bitterest enemy, who had reviled him in season and out. in almost every issue of his paper for months, and had prejudiced the public mind against him.
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Mr. B. K. Miller, son of the late A. G. Miller, has in his pos- session two letters written by his father in relation to the Booth case. One is a letter addressed to President Buchanan, dated April 20, 1860. recommending the remission of Booth's fine and costs, and the other is addressed to Hon. J. S. Black, the Attorney- General, asking for Bootli's release from imprisonment. The first letter is as follows:
"Milwaukee, April 20, 1860.
"Sir: Mr. Upham. the district attorney, has shown me a peti- tion for the release of Sherman M. Booth from custody, which he has been requested to forward to Your Excellency. The petition is signed by several of our most respectable citizens, principally of the opposition in politics to the administration. Mr. Upham will for- ward the petition in pursuance of their request.
"The prisoner applied to the Supreme Court of the State for a writ of habeas corpus very soon after his imprisonment, which the court, by a divided court. refused. Chief Justice Dixon, although of the opposition in politics, refused the writ. Since then he has · been reelected by a small majority over the Republican nominee -- the Democrats running no candidate of their own. The position he took in the matter was the reason of his rejection by the Repub- lican convention, and was the issue on which he is elected by a majority not exceeding 500. Since then the prisoner applied for and obtained from a State Court Commissioner a writ of habeas corpus, to which the marshal made return refusing to surrender the prisoner, and the writ and proceedings were dismissed.
"The term of imprisonment expired on the 23d of March. which, including the seven days he was in the county jail before his discharge, make thirty days, or one month. On that day he commenced suits against the marshal and myself for false impris- onment and for the penalty prescribed by the law for a rearrest after a discharge by order of the Supreme Court. That penalty is $1,250. The grounds alleged for the false imprisonment are that I, as judge, made an order for a rearrest and the marshal made the arrest under an unconstitutional law, and for this reason I had no jurisdiction. We have filed our answer to the com- dainis according to the State practice. We have no apprehen-
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sions of an unfavorable result, for even if the State courts should adhere to their position against the law, the Supreme Court of the United States would reverse the judgments.
"I do not think it proper in me to oppose the release of the prisoner on account of these suits, as I have not the least appre- hension of a result prejudicial to either the marshal or myself. When Booth was first imprisoned under the sentence, he brought suits against myself and the district attorney, which, on being brought to trial, were discontinued. Strictly, he is not entitled to executive clemency while the suits are pending. But I think a pardon of the fine and costs would be approved by the people. His imprisonment in a room of the custom house is attended with daily expenses, as a guard has to be constantly on duty, and it is also inconvenient, as the room occupied is the jury room, which is needed for that purpose.
"I will take this occasion to inform you that in this business the marshal has discharged a faithful duty.
"I have the honor to be very respectfully, your obedient servant,
"A. G. MILLER.
"To His Excellency, James Buchanan, Washington."
The letter to the Attorney-General, J. S. Black, is as follows: "Milwaukee, May 2, 1860.
"Dear Sir: The enclosed certificates of the discontinuance of the suits of Sherman M. Booth against the marshal and myself were handed in this morning, and I have concluded to forward them for the consideration of the President in the application for Booth's release from imprisonment. He has been imprisoned a month since his term of imprisonment expired, and I respectfully request that he be released.
"Very respectfully, your obedient servant, "A. G. MILLER. "Hon. J. S. Black, Atty .- Gen. U. S., Washington."
Booth's sentence was imprisonment for one month, and to pay a fine of $1,000 and costs of prosecution, amounting in all to $1,250. As Booth had served out his term of imprisonment. he had no need of a pardon, and none was ever granted him, but he was held in durance until he paid the penalty. When President Buchanan
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remitted the fine and costs, as he did on the 2d of March, 1861, two days before his official term expired. Booth went forth a free man. In nearly all accounts of this noted trial the statement is made that Booth was pardoned by the President, but the above letter from Judge Miller to Attorney-General Black explains that Booth had already served out his term of imprisonment and had been hekt one month longer because he could not pay the fine and costs assessed against him. amounting to $1.250.
A large number of men in the North during the war, of which Judge Miller was the type, was crowded into a position of seem- ing disloyalty to the government by a train of circumstances that they could not prevent. They were not pro-slavery men at heart, but slavery had been sanctionedl by what they regarded as the wisest of all compacts, the Constitution of the United States, which they had been taught to venerate, as they had been taught to ven- erate and uphold the national flag. There was the Supreme Court of the United States declaring the Fugitive Slave Law constitu- tional; that the negro slave had no rights wliich a white man was bound to respect, and they remembered the illustrious names of Jay, Ellsworth, Marshall and Story. They had heard it proclaimed from orthodox pulpits in their earlier days, that slavery was a divine institution, and that it could be defended from Holy Writ. Were they to despise the Constitution that was framed by Wash- ington, Franklin, Madison and Hamilton? or refuse to obey the laws of Congress, sanctioned by the highest judicial tribunal? Some of them were inconsistent. "This is a government of law," shouted the strict constructionist, "and the government itself must obey the law." Others wanted the rebellion put down constitu- tionally, when the Constitution never contemplated such a civil war and had made no provision for suppressing it. There was the negro that the two sections were at war about: was he to be considered a person or a chattel? or was he both? Was he to be allowed to fight on either side. the prize being his own liberty? .No; this was a white man's war, and the negro must not stay the fratricidal hand of his master although he saw the incendiary apply- ing the torch to the Temple of Liberty! The Democratic party in the South was in armed rebellion against the government to a
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man, and that was bad for the Democrats of the North. Presi- dent Buchanan's cabinet was a nest of disloyal men, plotting for the overthrow of the Union; bad again for all who had voted for him. Many Northern Democrats were called disloyal who were not. Thousands of them did not approve of the war; they hon- estly thought that it might have been avoided, and hoped against hope for a peaceable settlement of the difficulty. They believed that if Stephen A. Douglas had been elected President in place of Abraham Lincoln, there would not have been an appeal to arms on the part of the South. Bat when the fight began they obeyed the laws, sent their sons to the front. paid their taxes, helped to fill quotas, hired substitutes and did everything that was required of them, except to vote the Republican ticket. This they per- sistently refused to do, and for so refusing-which was their inalien- able right-they were abused, lampooned, misrepresented, nick- named and caricatured. Some few of them, like Vallandigham and men of his class, deserved all the discipline they received, but not so a great majority of the Democratic party north of Mason and Dixon's line. And what is singular about this matter is that these men are the last to be forgiven. The brave men on both sides who met in deadly conflict on the field of battle have long ago clasped hands in friendly agreement to forget the past, and now, when the Blue and the Gray fellowship each other around the campfire, and the graves of Union and Confederate soldiers are alike decorated with flowers, it would be well if the mantle of charity could be extended to those whose worst offense during the war was in exercising their constitutional right to cast their ballots in protest against the policy of the party in power. It is high time that a proclamation of universal amnesty was issued, and a reversal of that unkind judgment, which was rendered in the excitement of Civil war, when passion and prejudice were at white luat, was entered in the court of public opinion. .
Booth's misfortune-if it can be called a misfortune for an ambitious man to become forever identified with the history of a great State-afforded Byron Paine an opportunity to come to the front. and paved the way . for his promotion to a high and honorable position among his fellow men, in and out of the legal
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profession. Paine was at that time a young man but recently admitted to the bar, where he had not made much of a reputation. His early education had been scant; he had "little Latin and less Greek," but he had great natural abilities, an innate sense of jus- tice, immense moral stamina and a tender conscience, to the die- tates of which he was always loyal. He had been brought up to abhor slavery, and it was his State rights argument, which was wrong in theory, but which suited the anti-slavery sentiment of the times, that opened the way for his elevation to a seat on the Supreme bench. Booth at that time owned a widely circulated and influential newspaper which was. ever after devoted to Paine's advancement. When it was decided by the Republican managers that it would not be good politics to renominate Judge A. D. Smith for reelection to the Supreme Court, after his decision in the Booth case declaring the Fugitive Slave Act unconstitutional, Paine became the logical candidate of the extremists, who were then in the saddle, as illogical as it may now seem, as Smith's decision was based upon Paine's argument, and the one was no worse than the other.
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The people of the State suffered a severe loss in the death of Judge Paine. Had he lived he had a brilliant future before him in the line of his profession. When he died there were many elo- quent tributes paid to his memory by his associates at the bar. none more appreciative, truthful and cordial than that spoken by his life-long antagonist at the forum, the late Chief Justice Ryan, who said:
"When I first met Judge Paine at the bar he was still a very young man: but he had already given unmistakable evidence of the power that was in him. The first opportunity I had of form- ing an estimate of his high ability was in the famous case under the Fugitive Slave Act, in 1854 and 1855. He was employed by the defendant. I for the United States. We both brought to the case, not only ordinary professional zeal, but all the prejudices of our lives. He was a frank and manly Abolitionist. I was' as decidedly what was called pro-slavery. We were both thoroughly in earnest. The case was attended with great popular excitement; it was one of many muttered sounds of troubled elements. fore-
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boding the great storm which has since passed over the country. He died undoubtedly believing that the results had justified his views. I shall probably die believing that they have justified mine. I thought him a fanatic: he undoubtedly thought me one. Pos- sibly we both were. But in all that antagonism and excitement I could not fail to see, I could not fail to do justice to the integrity of his motives, or the ability of his conduct. I then conceived an estimate of the beauty of his character, and of his great professional ability, which has never since changed, and which will probably be among the last and dearest memories of my professional life."
Judge Paine died at Madison January 13. 1871. There is a good picture of him in the Supreme Court room and a better one in the possession of his brother-in-law, Mr. C. C. Paine, of Milwau- kee.
Notwithstanding the seriousness of having our Supreme Court nullify an act of Congress, and defy the authority of the Supreme Court of the United States. together with mobs breaking down jails and rescuing runaway slaves, the humorous side of passing events was not allowed to pass unnoticed. In writing the famous opinion of the court in the "celebrated case" of Clark vs. Faring- ton, which gave a knockout blow to the railroad farm mortgagors. Judge Paine went out of his way and lugged in a highly eulogistic paragraph on the immense benefit which the railroads conferred upon the public, saying among other good things, that "there is probably not a man, woman or child whose interest or comfort has not been in some degree subserved by them. They bring to our doors the productions of the earth. They enable us to anticipate and protract the seasons. They enable the inhabitants of each cline to enjoy the pleasures and luxuries of all!" Meeting Hon. I. C. Sloan, himself a fine lawyer, a few days after the decision was pub- lished, he asked me if I had read Byron Paine's "early vegetable argument in favor of railroads?"
In his letter to President Buchanan. Judge Miller's reference to the refusal of our Supreme Court to grant Booth a writ of habeas corpus, as had been its habit. needs a word of explanation. The suit was then over six years old, and two new judges had taken their seats upon the Supreme bench. Judge Whiton had
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died in 1859 and Luther S. Dixon had been appointed Chief Jus- tice by Governor Randall. Judge A. D. Smith, who wrote the famous decision in the Booth case, had been set aside by the Republican managers, and Byr a Paine nominated and elected in his stead, as an associate justice of the Supreme Court. Judge Dixon held that the Fugitive Slave Act was constitutional. and that it ought to be obeyed until it was repealed; consequently, as Paine could not sit in the case -- having been of counsel for Boo !! - and Dixon being opposed to Judge Cole's State rights view of the matter, the application failed as the court was divided. There was another factor in the case that led to the refusal of the Repub- lican convention to endorse Judge Dixon, and which came near defeating him at the polls. A large number of Wisconsin farmers in various parts of the State had mortgaged their farms tor stock in aid of the building of railroads, and the most of the railroad companies becoming bankrupt, the holders of the securities were urging payment. The Supreme Court had held unanimously- Judge Paine writing the decision-that the mortgages were good and must be paid. Judge A. Scott Sloan, who was nominated and almost elected over Judge Dixon, agreed with the State rights decision of Judge Smith, and had expressed an opinion that the railroad farm mortgages should be declared null and void on account of fraud. Thus he antagonized Judge Dixon on two of the most interesting and important questions then before the peo- ple of the State.
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CHAPTER X.
ORGANIZATION OF THE REPUBLICAN PARTY.
The passage of the Fugitive Slave Law, the decision in the Dred Scott case. and the other numerous aggressive acts of the slaveholders, then in dominant and domineering power in Con- gress, had fully aroused the people of the North. The ignomini- ous defeat of Gen. Winfield Scott, the Whig candidate for the presidency, and the election of Franklin Pierce, who has been described as "a Northern man with Southern principles," had seemed to open the way for the formation of a new party having for its cardinal principle the non-extension of slavery. It took some time to convince many of the old Whigs that the party of Adams, Clay and Webster was really dead and buried, and that there never would be a friendly hand stretched forth to roll the stone away from its sepulcher. In Wisconsin there was a bitter quarrel inside of the Democratic party between the old stagers headed by Senator Dodge, Judge Dunn and Moses M. Strong. and the younger and more progressive element, led by Harrison C. Hobart, Nelson Dewey, Fred Horn and others. God's mill was grinding slowly. The Dodge faction was totally routed in the convention that nominated Barstow over. J. C. Fairchild. and the old regime received its death blow then and there. Barstow's first term gave much dissatisfaction to many influential Democrats, and paved the way for his defeat in his second race with Bashford.
Meantime, the Republican party was forming in men's minds. One of the first, if not the very first man, to move in the matter was A. E. Bovay, of Ripon. He had been a Whig all his life, but in the defeat of General Scott in 1852 he saw with prophetic eye the utter extinction of his party. Horace Greeley was then editing The New York Tribune with its 100,000 subscribers, and it was regarded as the leading Whig organ in the United States. Bovay
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wrote Greeley often, with whom he was on terms of intimacy, urg- ing him to face the inevitable, to acknowledge the death and burial of the old Whig party, and to give his powerful aid and influence in organizing a new party which should combine all the elements of all parties that were hostile to the extension of slavery into new territory. Greeley hesitated for a long time, but Bovay worked on. He also was the man who first suggested that the new party be called "Republican." Mr. Bovay has full credit given him in Henry Wilson's "Rise and Fall of the Slave Power in America," in the following extract:
"One of the earliest, if not the earliest, of the movements that contemplated definite action and the formation of a new party, was made at Ripon, Fond du Lac county, Wisconsin, in the early months of 1854, in consequence of a very thorough canvass, con- ference and comparison of views inaugurated by A. E. Bovay, a prominent member of the Whig party, among the Whigs, Free Soilers and Democrats of that town. A call was issued for a pub- lic meeting to consider the grave issues which were assuming an aspect of such alarming importance. The meeting was held on the last day of February, in the Congregational church. It was largely attended by persons of both sexes from the town and sur- rounding country. It was a meeting solely for the discussion of principles and comparison of views. The burden and drift of the speeches were the hopeless subserviency of the national parties to the behests of the slaveholders, the necessity of abandoning them, and the proposed policy of constructing a party from the materials thus set at liberty, with such as could be persuaded to leave the Democratic party for a similar purpose. A resolution was adopted that if the Nebraska bill. then pending, should pass, they would throw old party organizations to tlie winds and organize a new party on the sole issue of the non-extension of slavery. A second meeting was held on the 20th of March for the purpose of organ- ization and for the adoption of such preliminary measures as the inauguration of the new party required. By a formal vote of the Town committees the Whig and Free Soil parties were dissolved, and a committee of five, consisting of three Whigs, one Free Soiler and one Democrat, was chosen."
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"The work done on that evening," says Mr. Bovay, "was fully accepted by the Whig and Free Soil parties of all this section immediately, and very soon-that is to say, in a few months-by these parties throughout the State. A State Convention was held in July, by which the organization of the party was perfected for the State, a majority of the delegation was secured for next Con- gress, and a Free Soiler, Charles Durkee, was elected to the Senate of the United States."
Mr. Bovay gave the following reasons for calling the new party Republican: "First, political parties should have significant names, and this name is significant of the thing which we wish to symbolize-Respublica-the common weal. It is suggestive of equality. Secondly, it was used by the party of Jefferson in its best and purest days, when it was really the friend, and not the enemy of the human race, and has left a hallowed memory behind it. But lastly-and in point of expediency-it is the cherished name with our foreign population of every nationality."
The honor of writing and printing the call that brought together the great mass meeting which met in Madison July 13th, 1854. at which the Republican party was organized, belongs to Sherman M. Booth, then the editor of The Free Democrat, published in Milwaukee. What Mr. Booth says about that call, is here quoted:
"At the close of 1853. the liberty- loving portions of the okl par- ties began to talk of the slave power. The Free Democrat encour- aged this disposition in every possible way. Ohio, as the sum- mer drew nigh, proposed a State Convention of all anti-slavery men of that State, at Columbus on the 13th of July, 1854. the anniversary of the passage of the Ordinance of 1787. consecrating the territory of the Northwest to freedom. The Milwaukee Sen- tinel thought it was a good idea. The Madison Journal blew hot and cold, dilated on the virtues of the Whig party and thought it best not to be in a hurry. As time wore on the expressions of the press were more favorable, and The Journal was for union if -- yes-on the whole-yes. I tried to get both The Sentinel and The Journal to lead the union movement, but they declined. Mean- time I was urged by letters and personal interviews, by members of all parties, to wait no longer, but set the ball rolling. And, on
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the 9th of June, 18544, I wrote and published the following call in The Free Democrat:
"PEOPLE'S MASS STATE CONVENTION. "At Madison, Thursday, July 13.
"All men opposed to the repeal of the Missouri compromise. the extension of slavery, and the rule of the slave power, are invited to meet at Madison, Thursday, July 13, to take such measures . as may be deemed necessary to prevent the future encroachments of the slave power, to repeal all compromises in favor of slavery, and to establish the principle of freedom as the rule of the State and National governments. The time has come for the union of all free men for the sake of freedom. There is but one alternative. We must unite and be free, or divide and be enslaved by the prætorian bands of the slaveholders and their Nebraska allies.
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