USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 14
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His speech was long, profound, and full of many evidences of deep study and earnest thought. It is regretted that only a few isolated quo- tations, as evidence of his method of thought and speech, can be given in this connection. In opening he said :*
*The argument was made before Judge A. D. Smith, a justice of the supreme court, May 29 and 30, 1854. Charles K. Watkins appeared with Mr. Paine for the relator, and J. R. Sharpstein, United States district attorney, for the marshal. It is said that Mr. Paine's services were rendered without compensation, and that at the time his professional income was small.
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In arising to commence the investigation of this case, I do so with those feelings of strong embarrassment which must naturally result from knowing that I undertake to deal with a question more important than any that could be presented to a judicial tribunal. It is a question in which, according to my judgment, are involved, not the liberties of Mr. Booth alone, but the liberties of the whole people. I am also not un- aware that it might involve a conflict between the judicial powers of the state and federal government. Because the validity of a law of the United States will be called in question here. A law in relation to a subject that has lowered like a dark and gloomy cloud above our political horizon, from which have blown those winds that have tossed the public mind and heart in wild commotion, as the ocean is tossed by the storms of heaven. A law in relation to a subject that stood like a stumbling block in the way of the formation of our government, a subject that has cursed us in the past, curses us in the present, and looms up as our evil genius in the future, waiting to attend us to destruction. I need not add that we are to call in question the validity of a law in relation to American slavery. And, sir, we shall question its validity, for the reason that Congress, in passing it, transcended its constitu- tional power and encroached upon a right that belongs solely to the states. And this is another reason that makes the question pregnant with importance. For under our system, composed of many independ- ent sovereignties, joined in one whole under a general government which has certain delegated powers, any question involving a conflict between the powers of the whole and of each sovereign part, must be of vital interest. It should be approached with solemnity, with anxious care, with moderation and forbearance. But, sir, in my judgment it should be approached unshrinkingly. I am not one of those who believe that the possibilities of such conflicts should be avoided by servile sub- mission from the states. I am not one of those who believe that a state should forbear to assert its rights, for fear that it may be questioned elsewhere. I do not belong to that school, of late increasing among us, which seems to teach that the states are to look up to the department of federal government with all the submissive deference with which a serf is to listen to the commands of his master. On the contrary, I belong to the other, and as I believe, that true school, which has best studied the theory of our institutions, and which holds that the true interests and harmony and perpetuity of this Union are to be best promoted and
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preserved by confining the general government strictly to the exercise of those powers delegated to it by the constitution, and steadfastly re- sisting all encroachments upon the rights of the states. We plant our- selves upon the doctrine of the sovereignty of the states, over all mat- ters except those which they have delegated to the general government power to control.
We stand, therefore, here to-day upon the doctrine of state rights, though we do not attempt to deny that it is a doctrine surrounded by difficulties-difficulties on both sides. As to how these difficulties are to be avoided, different men give different answers. Those whose minds incline them toward consolidation will answer that they are to be avoided by absolute submission on the part of the states. Those, on the other hand, who look with jealousy upon the federal power, will say that they are to be avoided by each carefully and scrupulously abstaining from encroachment upon the rights of others. They might say, with Judge Story, that "the part of true wisdom would seem to be to leave in every prac- ticable direction, a wide if not an unmeasured distance between the actual exercise of the sovereignty of each." Or they might, perhaps, rather answer as one of the great political parties of the country which has adopted the doctrines of the Virginia and Kentucky resolutions which I have read, has answered, and say that they are to be avoided by a strict construction of the constitution by all the agents and depart- ments of the general government, and that it "is inexpedient and dan- gerous for Congress to exercise doubtful constitutional powers." And now, sir, I come to the application of the doctrines I have contended for to this case.
The relator, Sherman M. Booth, was complained of under the seventh section of the late act of Congress, commonly called the fugitive slave law, for aiding in the escape of one Joshua Glover, from the cus- tody of Deputy Marshal Cotton, Glover having been arrested as a fugi- tive from labor. He was examined and held to bail. He was after- wards surrendered, and sued out this writ to be released from imprison- ment, chiefly for the alleged reason that the act of Congress is uncon- stitutional and void. In appearing here, we feel that we have crossed the threshold of our last refuge. We believe that the state courts may protect us if they will. That by a wise and firm interposition of their powers in behalf of the liberties of the people, they may present a
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barrier between those liberties and that spirit of oppression that is abroad in the land. That they may perform for us the kind office of the guard- ian shaft, that, reared above our dwellings, points fearlessly to the clouds, and receives upon itself, unscathed, the rattling thunders, that otherwise had dashed us to pieces! And our hope in this respect is justi- fied in a degree, by the fact that we stand here at all this day, and that the United States officers are here to give account to this court concern- ing our imprisonment. Because it has lately been declared here, by those officers, that they would not condescend to render such account at all, and that whenever they seized upon a citizen it was little better than an impertinent interference on the part of the state tribunals to inquire of them, "Why do we so?" These doctrines fell upon the public mind like strange and unheard of signs in heaven, filling it with horror and alarm. And it is doubtless to the prompt and decided manifesta- tion of that horror and alarm by the people, and to the resistance of our state judiciary, that we are indebted for the fact that the United States officers have receded from their position, and have appeared here to render a reason to this court why they imprison us. And we believe that the power of the court does not stop here, but that if satisfied that the reason is insufficient, it may discharge from custody the citizen whose liberty has been unjustly invaded, and thus afford a peaceful and bloodless remedy for the dangers that impend over us. But if we fail here, we can go no farther. Here is our "butt and very sea-mark of our utmost sail!" If the people are driven unprotected from their state courts, the cloud that will settle down upon them can be lifted only by the dread ordeal of revolution, when, falling back upon their reserved rights, amid scenes of violence and blood, they alter or abolish those governments that have failed to answer the great ends for which all governments are established. Since, therefore, the state is so great, we beseech this court, as we believe it has every inclination to do, to listen with attention to the reasons we may present, and with patience to- wards the imperfect and perhaps tedious manner in which we may present them, in order that, if possible, the last hope of liberty and the people may not fail.
I shall urge the unconstitutionality of the fugitive slave act upon three grounds:
First, that Congress had no power to legislate upon the subject-at all. Second, admitting such a power, the act is unconstitutional in pro-
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viding that any person claimed as a fugitive may be reduced to a state of slavery without a trial by jury.
Third, that it is unconstitutional because it vests the judicial power of the United States in court commissioners contrary to the provisions of the constitution.
There are doubtless other good grounds of objection to this act, but I shall confine what I have to say to these three, believing that if we fail upon these, there would be no hope of succeeding upon any.
In support of these propositions Mr. Paine proceeded with an array of facts, authorities and legal deductions apparently unanswerable. In speaking of the rights of the general government and the states he said:
Thus has it been with the federal and state governments. In setting in motion the vast machinery of the new system, each endeavoring to accomplish those objects which pressed most forcibly upon its attention, they have frequently encroached upon the rights and prerogatives of each other. The encroachments have in some instances been rectified, but in others they have been acquiesced in, and the boundary lines be- tween the two systems have been made crooked. The subject we are to consider here belongs to the latter class. And I fear this encroach- ment has been acquiesced in more readily than it would otherwise have been because it was imagined that it concerned only the rights of a class of people who were poor, persecuted, despised and outcast among us. But the time has now come when it concerns the liberties of us all, white as well as black, that these boundary lines should be re-examined, and the respective rights of the federal and state powers in this matter should be placed on their true basis. For the people are overshadowed with clouds of prosecutions, swarming with pains and penalties as numerous as the locusts which swarmed over Egypt; and it has become of vital interest to them to know whether the power for these things is really found in the constitution, or be nothing better than a bare- faced usurpation.
In conclusion he made use of language that, uttered years before the war of the slaveholders, seems in the light of after events to have been almost prophetic:
We are accustomed to look upon our country as having already at- tained a very great degree of power and importance. This is in a sense
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true. But we have only to travel forward for a century or two, at the sober pace of reason, unassisted by the wings of imagination, in order to behold it bestriding this continent like a Colossus-possessing a power compared with which that it now possesses would be like the pigmy compared with the giant. Emergencies will doubtless arise in the course of its national existence that will call into being vast armies and navies. And if the general government is under the control of the slave power, these armies and navies will be under its control. And who can doubt that that power is capable of conceiving the full purpose of annihilating liberty through all these states, and extending over them its own horrible institutions? Who can doubt that after conceiving this purpose it will carry it into execution by the iron arm of military power? It will do this, not with the avowed purpose of overthrowing the consti- tution, but pretending that it sanctions their sacrilegious design. ..
But let us hope that this destiny may not await us! That among the inscrutable ways of Providence, some one may be opened by which this cup will pass from our lips. Let us maintain to the last some hope that liberty may not be entirely destroyed-that the cause of hu- manity may not entirely fail. And though the clouds are gathering faster and blacker above us, we are not altogether without reason for such hope! For a number of years past there has been another re- action going on in this country against the influence of the slave power. And though the tide has ebbed and flowed-though in the actual con- flicts that power has retained possession of the battlefield, yet the reac- tion against it has steadily increased and accumulated strength until the present day. The freemen of the north who have long reposed in con- scious strength, with a generous forbearance towards the wrongs and in- sults of their deadly foe, have at last become aroused by provocations that could not be borne. They are marshaling their hosts for the com- ing conflict between the two great antagonistical elements, liberty and slavery, that is to settle which shall finally fall before the other. The trampling of the gathering hosts is already heard-the murmuring of the rising storm is wafted upon every gale. The north is snapping asunder the bands that have bound it in subjection to the slave power, as Samson broke the withs of tow! The last link that binds it is the judicial sanction that power has received! Let that be broken and the people are free! Can it not be broken? Can this great want of the pub- lic heart not be satisfied? Can we not have one decision in all this land
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that shall vindicate liberty and law? I could almost believe that the angels in heaven would bend forward over its battlements in eagerness to hear such a decision! That unborn generations would anticipate their time of life and listen from the great womb of futurity to the announce- ment of such a decision.
But whether these things would be so or not, this I know, that it would be received by all the friends of humanity and law throughout this land with such a thrill of heartfelt joy as was never felt by a people before. Their hearts would be filled with new hopes-hopes that this would be but the beginning of a more glorious end; hopes that there is to be a return to the true principles and wise policy of our fathers; that the constitution as it stands is to be vindicated and maintained; that courts are to be places where liberty is favored and human rights protected, and not where judges are to exercise their ingenuity to evade and overturn the great safeguards of the constitution and trample on the liberties of the people! Their hearts would be filled with new and glorious hopes, that this temple of liberty, which our fathers builded, is to be purified; that the traffickers in the blood and bones of immortal men shall be driven from its sacred precincts; and that with a broad continent for its broad foundation, and the blue heaven that bends above us for its arch, it shall be inherited by one great band of brothers, with no spot where the darkness of bondage shall remain, but that all over, from ocean to ocean, and from the eternal ice mountains of the north to the burning zone, it shall be illuminated by the light of liberty, as the celestial city is lighted by the glory of God.
The court, upon the conclusion of the arguments, agreed to Mr. Paine's construction of the law, and ordered the release of Mr. Booth; and, although he was afterwards convicted under the rulings of the supreme court of the United States, which held an opposite view, the masterly character of the young lawyer's defense was none the less ad- mired and its wonderful strength admitted. Quoting the voice and ver- dict of contemporary public opinion, we are told that "he gave untiring labor, earnest zeal, and magnificent ability to the advocacy of his views, and made an argument which could not be answered upon reason, although it might be choked by weight of authority. It delighted his friends, it carried with him the court, it captivated the popular mind.
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It secured judgment for his cause, and for himself the respect of his pro- fession, and the lasting favor of the people, among whom it was ex- tensively read. And although his opinions were very distasteful to many, they made him no enemies. His sincerity, his moderation, his fairness and evident devotion to truth disarmed opposition of personal bitterness. He obtained the confidence of his political antagonists, as well as the enthusiastic admiration of his supporters. He made no effort to secure personal advantage from his triumph, but retired to the quiet practice of his profession unaffected by the praises heaped upon him. He seemed not to know how much he had done for himself."
In this connection, and as giving support and endorsement of the highest character to what has gone before, I cannot refrain from quoting the comments upon his conduct of this case, made by Judge E. G. Ryan, when the resolutions in honor of Judge Paine's memory were presented to the supreme court in January, 1871: "When I first met Judge Paine at the bar he was still a young man, but he had already given unmistak- able evidence of the power that was within him. The first opportunity I had of forming an estimate of his high ability was in the famous case under the fugitive slave act in 1854 and 1855. He was employed for the defendant, I for the United States. Weboth 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 unutterable sounds of troubled elements, foreboding 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 probably thought me one; possibly 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 to 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 mem- ories of my professional life. The printed brief which he submitted to
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this court in that case was the ablest argument I ever met against the constitutionality of the fugitive slave act. It is a professional loss that it is not printed at length in the report of the case. It established, in my mind, his great learning and resources as a cultivated lawyer. And yet I remember well the modesty of his demeanor, accompanying such high ability in so young a man. I recall, too, his singularly able manage- ment of the defense, on the trial of the indictment in the federal court. He disputed every inch of ground with signal address, and with all the hearty ability of a man who believed that he was in the right. I shall never forget his closing argument. It has been my lot, during a long professional life, to encounter many able advocates, but I never listened to an argument before a jury more perfect for the case than that was. No man, not thoroughly able, and not thoroughly in earnest, could have made it. The court adjourned just as it was finished, and I remember well the noisy congratulations that were offered to the modest young advocate. He merited far more discriminating praise. It established his reputation as an orator and advocate of a very high order."*
The reputation thus generously described had placed the young lawyer so near the front rank of his profession that when Charles E. Jenkins resigned the office of county judge of Milwaukee county, in 1856, Governor Bashford appointed Mr. Paine to the vacancy. The term expired in 1857, and on the day before the election of judge he was nominated for the place by a convention hastily assembled, and to the surprise of many, and especially of himself, was elected by three thou- sand majority over the regular democratic nominee; and that, too, in a county that usually gave a democratic majority of over four thousand. So faithfully and intelligently were the duties of this office fulfilled that in 1859, when only thirty-two years of age, he was made a member of the supreme court of Wisconsin -- a position that, with one interval of patriotic devotion to his country in another field, he held until his death.
*Charles Sumner, the great champion of the anti-slavery cause, wrote Mr. Paine pronouncing his argument admirable. "You touch the question to the quick," said he. "For a long time I have seen it as you do. I congratulate you, my dear sir, upon your magnificent effort, which does honor not only to your state but to the country. That argument will live in the history of this controversy."
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Judge Paine remained upon the bench in the discharge of his duties until the call for more troops issued by the President in July, 1864, when he put into effect a long deferred desire, which had been kept from execution heretofore only because of his wish to aid his country by all means within his power in the station he then held. He resigned his judgeship and enlisted in the Union army, receiving, on August 10th, the appointment of lieutenant-colonel of the forty-third Wisconsin regiment, which had been organized pursuant to the above call. The regiment left the state on October Ioth, with orders to proceed to Nashville, Tennessee. Before its departure from its Wisconsin camp Judge Paine received from his associates of the Milwaukee and Madison bars a token of the love and appreciation in which he was held in the shape of an elegant sword. In a letter accompanying it, written by Hon. Winfield Smith, attorney-general of Wisconsin, in behalf of the donors, these appreciative words were used: "In behalf of the gentle- men whose names are communicated to you, I beg that you will accept, in token of our personal regard for yourself, of our interest in your welfare, of our hearty wishes for your future success and happiness, and, not least, of our approbation of the cause upon which you have entered, the emblems of your new profession which we present with this note." The response was conveyed in a letter full of patriotism and fraternal farewell to the friends who had thus remembered him. In con -. clusion he said: "Looking upon the contest in this light, I have watched it with a feeling so intense that it has often unfitted me for the proper discharge of the duties of the position I have just relinquished. And when the last call was made by the President, the aspect of affairs seemed to me so doubtful and full of gloom that I could not but feel it my duty to follow where so many noble men had gone before me, and help to fill up those ranks upon which our fate now depends.
"But so far as the testimonial with which you have presented me has reference to the duties of my new position, I must say I accept it with humility and great distrust of my worthiness to receive it. I can make no promise as to how it shall be used. I can only say with a full sense of the responsibility belonging to a military command in time of
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war, I desire with my whole heart to discharge properly what duties may devolve on me."
The forty-third, on arrival at Nashville, proceeded to Johnsonville, on the Tennessee river, where a large and important depot of supplies needed guarding. At that point Colonel Cobb, who had command of the regiment, was appointed post commandant, and the control of the forty-third fell entirely upon Lieutenant-Colonel Paine. The stay at Johnsonville was prolonged to November 30, during which time some sharp salutes of artillery were received from the enemy across the river. The force was moved on the 30th through an unbroken wilderness to Clarksville, on the Cumberland river, which was reached on December 4, where it was stationed until the 28th, when it was moved up the Cumberland, reaching Nashville on the evening of the same day. On January I the regiment was again moved to Decherd, Tennessee, where six companies went into camp, while the remaining four were detailed to guard the Elk river bridge. The command remained on provost and guard duty on the Nashville & Chattanooga railroad until June, 1865, when it was marched to Nashville and mustered out on the 24th. Colonel Paine had resigned his command some twenty days before this -but not until the war was ended and declared-because of the death of an elder brother. Of the record he made during this brief season of war, no better testimony can be found than that contained in that official publication, Wisconsin in the War (page 866), which says: "He was in command during most of their service, Colonel Cobb being engaged on detached duty. The soldiers were deeply affected when it was announced that he was to leave. He united kindness and firmness in discipline. It is the unanimous testimony of the officers of the regiment that never did the humblest soldier, however great his delinquency, receive from Lieutenant-Colonel Paine an unkind or ungentlemanly word. Without ostentation and with rare singleness of purpose, he devoted himself to the welfare of his regiment and the good of the service. Conceding nothing to ambition, nothing to any personal consideration, he moved straight where duty led, undeterred by censure and unmoved by ap-
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