USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 4
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the power to continue or abolish slavery. The chief glory of Lincoln's administration consists in the fact that he was at all times controlled by a purpose to cooperate with Providence in saving the Union-as, in effect, expressed in his letter to Horace Greeley, only thirty days before his proclamation of conditional emancipation-his "paramount object" was "to save the Union"-whether his efforts in doing so resulted in saving or destroying slavery. The chief glory of this republic consists in the fact that, in contradistinction to governments of arbitrary will and despotic power, this is a government based upon fundamental and practically unalterable laws, as indicated, wherein no officials, no body of officials, no combination of individuals, are above the laws, but each and all are alike subject and answerable to the laws.
The duration of this dual system of government depends not only upon the wisdom, integrity and virtue of those who make and admin- ister the laws, but in the wisdom, integrity and virtue of those who elect the men who thus make and administer the laws. With a free ballot based on manhood suffrage, with free schools for the children of the rich and poor alike, with all churches and all religious institutions entirely independent and free from governmental control, and yet each and all protected in the free exercise of their legitimate functions by the strong arm of the law, with the freedom of speech and the press guaranteed, subject only to responsibility for abuses, with liberty prop- erly regulated by laws, and the laws impartially enforced without any discrimination, with the common rights of all men equally protected against all encroachments from arbitrary power, with all class distinc- tions and titles of nobility absolutely prohibited, the American republic must in due time become, if it is not already, the guiding star of the world, and by its benign influence regenerate, reform and transform all other nationalities into its own likeness.
Madison, Wis., February 8, 1898.
CHAPTER II. WAR QUESTIONS. BY F. C. WINKLER.
It is proposed in this chapter to give a brief survey of the legal history of the state, in so far as war questions, those connected with the causes of the war of the rebellion as well as those which arose in the course of its progress, were concerned.
The earliest of these in point of time, and at the same time the most important, turned upon the fugitive slave law of 1850. Section 2 of article IV. of the constitution of the United States contains the follow- ing provision, the only enactment found in the constitution upon the subject :
"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regu- lation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
In pursuance of this provision, the Congress of the United States on the 12th of February, 1793, enacted two brief sections; one author- izing the owner of any such person so escaping to arrest him, bring him before a United States judge, or any state judge or magistrate, and prove to his satisfaction, by oral testimony or affidavit, that the per- son arrested owed service to the claimant under the laws of the state from which he had escaped, whereupon it was made the duty of the judge or magistrate to give a certificate that such proof had been made and this certificate was declared a sufficient warrant for removing the fugitive to the state from which he had fled. The second section pro- vided a penalty of five hundred dollars for knowingly and willfully ob- structing the execution of this law, or harboring or concealing the fugi- tive after notice that he was a fugitive from labor.
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The act of September 18th, 1850, one of the famous compromise measures of that year, was intended largely to increase the facilities for reclaiming fugitive slaves and to place the machinery for executing its provisions in the hands of federal officers. It gave exclusive juris- diction to the judges of the United States courts and to court com- missioners appointed by them over all cases arising under the act. It authorized an increase in the number of court commissioners and pre- scribed the mode of procedure with detail. It provided for a hearing before the judge or court commissioner and made the certificate, if one was granted, conclusive of the right of the claimant and of the fate of the accused. It admitted proof by affidavit on behalf of the claimant, but enacted that "in no trial or hearing under this act shall the testi- mony of such alleged fugitive be admitted in evidence." It very much increased the penalties and liabilities of persons who might resist the enforcement of the law or harbor or conceal the fugitive. It imposed strenuous duties, under severe penalties for neglect, on the United States marshals requiring them, under circumstances, to call out a posse comitatus to aid in the capture of a fugitive. It provided a fee to the commissioner hearing the case of ten dollars on granting the certificate to the claimant, but gave him five dollars only in case the proof failed to warrant the issuing of a certificate. Features unneces- sarily irritating enhanced the unpopularity of an intrinsically distasteful law.
In March, 1854, Joshua Glover, alleged to be a fugitive held to service or labor in the state of Missouri, was arrested at Racine, Wis- consin, by the United States marshal by virtue of a warrant issued by the United States district judge. He was brought to Milwaukee and there lodged in jail pending a hearing. Excitement ran high. A crowd gathered at the jail, broke in the doors, set the alleged fugitive at liberty and he made good his escape. Sherman M. Booth, the editor of a pronounced anti-slavery paper at Milwaukee, had been concerned in the rescue. He was arrested for violation of the act of 1850 in having aided the prisoner to escape, upon a warrant issued by a United States court commissioner. Upon examination he was bound over to the
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next term of the United States district court. He gave bail, but his bail surrendered him, and thereupon, by warrant dated May 26th, 1854, the commissioner committed him to the custody of the United States marshal. The next day application was made to the Hon. Abram D. Smith, one of the justices of the supreme court of this state, for a writ of habeas corpus to the marshal of the United States. The writ was allowed. The marshal made return, setting up the warrant in his hands as justification. Mr. Justice Smith discharged the prisoner, giving his reasons in an elaborate opinion in which he held the act of September 18th, 1850, to be unconstitutional. He argued forcibly and insisted with emphasis that the constitutional provision referred to was in the nature of a mandate to the states only and conferred no authority what- ever on Congress to legislate upon the subject. The case was taken to the supreme court of the state by certiorari. It was there argued with great thoroughness and ability. Mr. Byron Paine, afterwards one of the justices of the same court, appeared for Mr. Booth. Mr. J. R. Sharp- stein, then United States district attorney, and Mr. E. G. Ryan, later chief justice of the court, represented the marshal. The court (then consisting of three judges) affirmed the order discharging the prisoner. The decision was unanimous. The grounds however on which the judges based their conclusions were not the same. The judges were agreed in sustaining the right of the state judge to issue the writ of habeas corpus to the United States marshal, and upon this writ to enquire into and pass upon the sufficiency of a warrant issued by a United States court commissioner. Chief Justice Whiton yielded to the authority of the case of Prigg vs. Commonwealth of Pennsylvania, 16 Peters, 640, as establishing the constitutional authority of Congress to legislate upon the subject of reclaiming fugitive slaves, but held the act of 1850 to be unconstitutional on the ground that it attempted to vest judicial power, including the power to pass finally upon the ques- tion of liberty of the party claimed, in a court commissioner without constitutional warrant and in violation of the bill of rights. Mr. Justice Smith, while concurring in these criticisms on the law, reiterated his position that Congress was given no right of legislation on the subject,
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and that the act was therefore void. Mr. Justice Crawford held the law to be valid and concurred in the judgment only on the ground that the warrant or commitment under which the arrest was justified did not upon its face show a case within that law. For a full report of this interesting case see 3 Wisconsin, I.
At the July term, 1854, of the United States district court for the district of Wisconsin, Sherman M. Booth and John Rycraft were in- dicted for aiding the escape of Glover, and warrants were issued from that court for their arrest to answer the indictments. Application was then made by Mr. Booth to the supreme court for a writ of habeas corpus, with allegation that the indictments charged a violation of the fugitive slave law, which was averred to be unconstitutional. This ap- plication was unanimously denied by the court. Chief Justice Whiton, delivering the opinion, took a distinction between a warrant of a court commissioner and a warrant issuing from the court upon a case pending therein, holding that in the latter case the granting of the writ would be an unwarranted interference with the jurisdiction of the court in which the indictment is pending. Mr. Justice Smith delivered a concurring opinion, in which he emphasized the time of the application as an ob- jection to granting it, the jurisdictional question not having been first presented to the court in which the indictment was pending. Ex parte Booth, 3rd Wisconsin, 145.
Mr. Booth and Mr. Rycraft were thereafter tried in the United States district court and convicted of violation of the "fugitive slave act" and were sentenced to a short imprisonment in the county jail of Milwaukee county. A writ of habeas corpus was now again applied for to the su- preme court of the state, upon a petition which was accompanied by a transcript of the record of conviction. The writ was granted. The sheriff of Milwaukee county, as custodian of the jail, made return, and the United States marshal, protesting against the jurisdiction, also made re- turn of the facts and the record. The court entered judgment discharg- ing the prisoners. The question chiefly discussed in the case was that of the power of the state court to enquire into and pass upon the question of jurisdiction of a federal court in a case which the latter had assumed to
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adjudicate. Each of the three judges delivered an opinion. Each held to the right of the state court on habeas corpus to pass upon the juris- diction of the federal court. All concurred, although on varying grounds, that want of jurisdiction appeared on the face of the record. In re Booth & Rycraft, 3rd Wis., 144.
To review the judgments discharging the prisoner, writs of error were issued by the supreme court of the United States and duly served. To the first writ, return seems to have been made without attracting special attention. When the writ was served in the second case, the supreme court of the state directed its clerk not to make return to it, taking the position that an appeal or writ of error did not lie from a state court to the supreme court of the United States, and that the act of Congress authorizing the same was unconstitutional. The attorney general of the United States had, however, obtained a transcript of the record from the clerk of the supreme court of Wisconsin, and when it was found that that court persisted in its refusal to allow a return to be made, the cause was docketed on the filing of this transcript in the supreme court of the United States and the cases were argued in due course. The supreme court, by unanimous decision embodied in an able opinion of Chief Justice Taney, reversed the judgment of the supreme court of Wisconsin. The chief justice arraigns the supreme court of the state with severity for the extraordinary assumption of annulling the sentence of the federal court by its decision of the writ of habeas corpus and then denying the right of review to the supreme court of the United States, thus placing the state court in a position of supremacy, the result of which must be that the federal courts must exercise their jurisdiction subject to the supervision, as to jurisdiction, of the local court in every state. The opinion presents a strong argu- ment on the national side of the old controversy relating to the respec- tive rights of the general government and the states, and a lucid expo- sition of the relations between them.
Several years had elapsed since the decisions of the state court, and when the cases came to that court again its personnel had entirely changed. Luther S. Dixon was chief justice, Orsamus Cole and Byron
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Paine, the associates. Of these, the latter had been counsel for Booth, and Mr. Justice Cole had been a member of the court when it refused to make return to the writ of error and had concurred in that action. The cases now (June term, 1859) came in the form of motions to file the mandates of the supreme court of the United States reversing the judg- ments on the writs of error. Mr. Justice Paine, having been of counsel for Booth, did not sit. Mr. Justice Cole, although delivering no opinion, adhered to the view taken when a return to the writ had been refused. Chief Justice Dixon gave the subject careful and elaborate considera- tion. In an able argument, he asserted the jurisdiction of the supreme court of the United States to final arbitrament where federal questions are involved and contended that the mandates should be received and heeded. In view of the difference between the two judges who acted in the case, no affirmative action could be had and the motion was denied. Ableman vs. Booth, 1I Wis., 498. In March, 1860, Mr. Booth, who, after the decision of the supreme court of the United States, had been re-arrested, made another application for a writ of habeas corpus to our supreme court. This was denied, Mr. Justice Paine not sitting in the case and the chief justice and Mr. Justice Cole being divided in opinion. II Wis., (Vilas & Bryant's notes) 555.
Herewith the great judicial controversy, growing out of the fugitive slave law, in which such extreme grounds were taken, came to an end.
Mr. Justice Paine was first elected to the supreme court in 1859. He was elected on a pronounced state rights platform. He had been Mr. Booth's great advocate. After the close of the war he had occasion in several judicial opinions to refer to the subject of these decisions. In Knorr vs. Home Insurance Co., 25 Wis., 143, he delivered a dis- senting opinion, holding that the constitution of the United States con- tained no warrant for acts of Congress giving either appellate jurisdic- tion from a state court to the supreme court of the United States or the right of removal of suits from state courts to federal courts. He admits in his argument that under his view of the law there is no arbiter to decide between the respective claims of state and national authority; also that there ought to be such an arbiter and that the supreme court
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of the United States would seem to be the proper tribunal; but contends that proper construction of the constitution as it stands does not admit of the granting of these powers. In the course of his opinion the learned Judge says:
"I am aware that the idea of state rights is at present exceedingly odious and unpopular. It is branded as a legal and political heresy, and held directly responsible for the attempt at secession with all its disas- trous consequences. But the two claims are entirely distinct and dis- similar.
"Secession is revolutionary; state rights not. Secession seeks to withdraw and overthrow the powers admitted to have been delegated to the federal government. State rights makes no such effort. Seces- sion throws off entirely all obligation under the constitution of the United States. State rights throws off none of that obligation, but concedes that that constitution and laws made in pursuance of it are the supreme law of the state, and that it is the sworn duty of its tribu- nals to regard and enforce them as such.
These fluctuations in the popular feeling and opinion can have no legitimate influence upon the question of legal interpreta- tion. Nor can they make it true, that, under our system of divided sovereignty, it is not a question of the gravest delicacy and importance, and, at least, of doubt, whether the states, the original sovereignties, hold their reserved powers wholly subject to the judgment of the federal court."
Shortly afterwards an application for a writ of habeas corpus on behalf of a minor, alleged to have been enlisted in the United States army in violation of law, was addressed to the supreme court. Here Mr. Justice Paine delivered the prevailing opinion of the court, Chief Justice Dixon dissenting, to the effect that the court had jurisdiction to enquire into the legality of the petitioner's restraint of liberty. He discusses the decisions in the Booth case, both state and federal, and argues chiefly in favor of initiative jurisdiction, conceding the power of the supreme court of the United States to review a state court decision,
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involving a federal question, to be now settled upon authority. In re Tarble, 25 Wis., 390.
This well reasoned opinion goes far to convince us that the position of our supreme court in the Booth cases would have been far less inde- fensible if to the assertion of the right to enquire into the jurisdiction of the United States District Court on habeas corpus it had not added the claim that its decision was final and beyond review by the supreme court of the United States, "which," as Mr. Justice Paine concedes, "was, in truth, contrary to the entire current of authority." 25 Wis., 407.
In re Tarble was taken to the supreme court of the United States and there reversed, that tribunal laying down the general principle that "whenever any conflict arises between the enactments of the two sov- ereignties, or in the enforcement of their asserted authorities, those of the national government have supremacy until the validity of the differ- ent enactments and authorities are determined by the tribunals of the United States;" and that a state judge has no authority to entertain a writ of habeas corpus "for the discharge of a prisoner held under the authority, or claim and color of authority, of the United States by an officer of that government;" that whenever it appears in such a pro- ceeding, "that the party is held by an officer of the United States under the authority, or claim and color of authority of the United States," the state judge can proceed no further.
Chief Justice Chase dissented, holding fully to the view that a state court has the right to enquire into the jurisdiction of the federal court upon habeas corpus, and to discharge when satisfied that the peti- tioner for the writ is restrained of his liberty by the sentence of a court without jurisdiction; and that if error is committed in such discharge its remedy is found in the appeal allowed to the supreme court of the United States.
This decision, it is believed, has been unanimously accepted as finally settling the law upon the subject. It doubtless curtails the powers which have generally been exercised on writs of habeas corpus, but this curtailment is held to arise out of the peculiar relations between the state and federal governments and the necessity of a tribunal to deter-
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mine the boundary line. A government is necessarily the judge of its own powers and the United States government, being supreme within its limits, must have power to determine those limits.
The state rights agitation over the fugitive slave did not confine itself to the court rooms of Wisconsin. How it invaded politics and dominated the action of parties, it is not within the scope of these pages to trace; but as early as 1857 the legislature took it in hand. It enacted one of the so-called "personal liberty" bills, then quite common in the northern states. This act (chap. 8, approved Feb. 19th, 1857) made it the duty of district attorneys, whenever any inhabitant of the state was arrested or claimed as a fugitive slave, to use all lawful means to protect and defend him and procure his discharge. It provided that the application of any district attorney, stating that a person was ar- rested and claimed as a fugitive slave, should be sufficient authority to authorize a writ of habeas corpus; that if upon hearing of a writ of habeas corpus the person claimed as a fugitive slave was not dis- charged, he should have the right to an appeal to the circuit court; that on such appeal either party might have a trial by jury; that the claim of such person being a slave should not be deemed proved except by the testimony of at least two credible witnesses testifying to facts directly tending to establish the truth of such claim; that any per- son who upon any trial arising under the act should falsely represent or pretend that any person was or is a slave, should pay a fine of one thousand dollars and be imprisoned not less than one year; that on trial of any prosecution arising under the act no deposition should be re- ceived as evidence; that no judgment recovered against any person for any neglect or refusal to obey the fugitive slave law of 1850 or any of its provisions should be a lien on any real estate within the state, or should be enforcible by the sale on execution of any real or personal property, but that all such sales should be void. This act remained on our statute books until 1862 when the essential features of it were repealed.
In 1859 the legislature passed and the governor of the state ap-
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proved a joint resolution, which, to show the spirit of the times, is here inserted in full.
"Whereas, the supreme court of the United States has assumed ap- pellate jurisdiction in the matter of the petition of Sherman M. Booth for a writ of habeas corpus, presented and prosecuted to final judgment in the supreme court of this state, and has, without process, or any of the forms recognized by law, assumed the power to reverse that judg- ment in a matter involving the personal liberty of the citizen, asserted by and adjudged to him by the regular course of judicial proceedings upon the great writ of liberty secured to the people of each state by the constitution of the United States:
"And whereas, such assumption of power and authority by the supreme court of the United States, to become the final arbiter of the liberty of the citizen, and to override and nullify the judgments of the state courts, declaration thereof, is in direct conflict with that provision of the constitution of the United States which secures to the people the benefits of the writ of habeas corpus; therefore,
"Resolved, the senate concurring, That we regard the action of the supreme court of the United States, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the constitution, and virtually superseding the benefit of the writ of habeas corpus, and prostrating the rights and liberties of the people at the foot of unlimited power.
"Resolved, That this assumption of jurisdiction by the federal ju- diciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.
"Resolved, That the government formed by the constitution of the United States was not made the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
"Resolved, That the principle and construction contended for by the party which now rules in the councils of the nation, that the general
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government is the exclusive judge of the extent of the powers dele- gated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the constitution, would be the measure of their powers; that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy."
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