|INTRODUCTION | MILWAUKEE, AUG 1 | WAUPUN, AUG 1-3 | RIPON, AUG 3-5 | RECAPTURE, AUG 6-OCT 8 | DOCUMENTS|
EXCERPTS FROM THE FOND DU LAC WEEKLY COMMONWEALTH
Wednesday, August 1, 1860
Special Despatch to the Commonwealth
Milwaukee, Aug 1-2 P. M.
S. M. Booth was taken from the custody of the U. S. Marshall, at 12 o'clock to-day, by 10 armed men. The Marshal and a Deputy being at dinner. There was no one but the Keeper present. The party rushed up stairs, to Booth's room in the United States Custom House, and threatened the keeper with threats of violence, unlocked the door, took Booth out and locked the keeper in. A carriage being in readiness a party proceeded with Booth into the country. No blood shed.
We have been interested ever since the incarceration of S. M. Booth by the Federal kidnappers; ever since the sovereignty of the State of Wisconsin was imprisoned with him, to solve the question how he was to be released by due legal process of State law, and at the same time vindicate the sovereignty of the State.
Some weeks ago the conviction was established, subject only to one or two modifying contingencies, which we thought it not impossible might exist, that Byron Paine, and he alone, by retaining his seat on the Supreme Bench, was responsible for the imprisonment of Mr. Booth, and the prostration of the State before the matchles [sic] meanness of one of the meanest of our Federal Courts. These modifying contingencies, we have learned do not exist, and now it is reduced to positive certainty that no writ of Habeas Corpus can be issued by circuit Judge in the State, however much some of them may desire to do it. The reason is this: before an Officer residing outside the County in which a prisoner is confined, can issue a writ of Habeas Corpus, hear the case and order execution, it must be made to appear that the prisoner has exhausted the resources for obtaining a writ in his own County. If he cannot do this, the Judge cannot order execution. The officers in Milwaukee Co. who would grant the writ and order execution, if it was an original question, say they consider themselves estopped by the fact that the Supreme Court has practically denied the writ,--that it is a settled question. There are two commissioners that would grant a writ, but being Fugitive Slave Act men, would hear the case, and when the United States Marshal stated that Mr. Booth was held as a Fugitive Slave Act Convict, would remand him to prison again. So these two Commissioners effectually estopp the friends of freedom from seeking aid at the hands of any liberty-loving Circuit Judge, outside of Milwaukee County.
We have also learned that it was the wish of Mr. Booth when he was first re-kidnapped, that application for a writ should be made to Judge Albert Smith, of the municipal Court of Milwaukee, as he was of the opinion that Byron Paine wo'd not act, and foresaw the exact dilemma now involved in this case. And it was only after the most positive assurances by his counsel, that Judge Paine would act, that he reluctantly consented that a direct application should be made to the Supreme Court. We have no idea but that his counsel, Gen. Paine, was firm in his belief that Judge Paine would act, or he would not have so represented--for every fibre of his body and every impulse and instinct of his soul is for liberty--but he was most lamentably mistaken as to the course his son would take in the matter; and so we are where we are. Judge Paine feels constrained by Judicial propriety to vacate the Bench. The circumstances are such that a writ that can be made available for the release of the prisoner, can be obtained from no other source than the Supreme Court. This being the case, the responsibility of Mr. Booth's imprisonment rests with tremendous force upon Byron Paine. If he cannot act, and we do not ask him if he conscientiously believes he cannot legally; then he can at least cease to stand in the way of a vindication of the position of the State, by resigning. We are in earnest, and the people of the State are fast getting in earnest on this matter, and if we mistake not, he will soon hear, if he has not already heard, old-fashioned thunder from the men who make and can unmake Judges. The people have been patient, in hopes that the end might be accomplished by other means. The last hope has fled--there is daylight to be seen in no other direction.
The Free Democrat says:
"When Judge Paine felt that he could not, with his notions of honor, act, he had the choice before him to sacrifice his personal ambition, resign and let the Governor appoint a Judge who would act, or sacrifice the rights and Sovereignty of the State.--Rather than resign, he preferred to let slavery triumph over the rights of the State and the liberties of the people. This is the way the matter stands, and no legal sophistry can change it, or blink the fact out of sight."
We are informed, by only one remove from their own lips, that Doolittle and Durkee and Potter, see no way to legally unlock the door of the Federal Bastile in such a way as to vindicate Wisconsin but for Judge Paine to resign. Gov. Randall is also anxious that he may appoint a Judge who can and will act. Let the resignation come!
Wednesday, August 8, 1860
S. M. BOOTH AT RIPON
ATTEMPT TO ARREST BOOTH!!
The People Organized to Defend State Rights!
(From the Ripon Times Extra.)
RIPON, August 5, 1860
S. M. Booth arrived in this city on Saturday morning under an armed escort from Waupun. Notice that he would speak at the City Hall in the Evening was sent out, and at the appointed time a large audience crammed the Hall to its utmost capacity, while some hundreds in the streets were unable to gain admittance.
The Meeting was called to order by C. J. Allen, when Wm. Starr was chosen Chairman, and Mr. Allen Secretary. Mr. Booth was introduced to the audience, and was greeted with hearty applause, and bouquets thrown on the platform by several ladies.
Mr. Booth had proceeded for some time with his speech, when Deputy Marshall F. D. McCarty, of Fond du Lac, suddenly came on the platform, and said "I have a warrant to arrest you, Mr. Booth." He barely succeeded in putting one hand on Mr. Booth when he was instantly pulled away by the bystanders. A scene of intense excitement and indescribable confusion followed. "Kill him," "shoot him," "hang him," went up in shouts from all parts of the Hall. McCarty was thrust out of the Hall by the enraged people, being kicked and beaten by his pursuers, and was thrown down the lower flight of stairs, falling upon his face. Instantly regaining his feet he fled to the Mapes House, followed by the crowd in pursuit. The Mapes House was the headquarters of the Marshal and his friends, and they appeared at the door armed and forbade entrance to the pursuers.
At the Hall as soon as order could be restored, a resolution was offered by A. E. Bovay,--"Resolved, That Mr. Booth shall not be re-arrested in Ripon,"--which was adopted amid deafening shouts and hurrahs. Mr. Daniels took the stand and made an impassioned speech for a few minutes, and moved that we now organize a League of Freedom, the members of which shall be pledged to resist any attempt to execute the Fugitive Slave Act. One hundred and twenty persons were enrolled as fast as the names could be written. A. E. Bovay was elected President, and C. J. Allen Secretary. A Vigilance Committee of twelve members was appointed, consisting of Edward Daniels, O. H. LaGrange, A. B. Pratt, Dana Lamb, A. E. Bovay, C. D. Loper, J. S. Landon, F. R. Stewart, I. A. Norton, F. W. Cooke, Lucius Thatcher, A. M. May, Benj. Pratt, L. P. Rivenburgh. The mass of the people then formed a procession, preceded by the Ripon Wide Awakes, and escorted Mr. Booth to the residence of Prof. Daniels. Some twelve or fifteen persons were put on duty as volunteer guards, to defend the residence of Prof. Daniels, and the remainder dispersed.
The Vigilance Committee held a meeting this morning and took measures to effect a Military organization to subserve the purposes of the League.
To-day the people have been pouring in from the country, and at three o'clock a mass meeting was held in a grove. Col. Asa Kinney was called to the Chair, and C. J. Allen appointed Secretary. A committee consisting of Edward Daniels, A. Pickett, C. J. Allen, J. W. Sanders, I. A. Norton, I. A. Norton, P. F. Drury, and J. A. Burt, was appointed to prepare resolutions. Mr. Booth then addressed the meeting. After which Mr. LaGrange was called out and spoke for a short time. Mr. Daniels reported from the committee a series of resolutions, which were adopted unanimously. A procession then formed and marched to the City Hall--Mr. Booth going to the Hall, as he had gone to the grove, escorted by a body of armed men. The Hall was taken possession of, and guards stationed for its defense.
At the Hall a committee of ten was appointed to wait upon the Deputy Marshals here, and request them to leave town. Messrs. William Starr, A. E. Bovay, E. Reynolds, C. J. Allen, I. A. Norton, F. A. Strong, F. R. Stewart, L. P. Rivenburgh, A. B. Pratt, and A. Leonard were appointed such committee, who repaired to the Mapes House and had an interview with Deputy Marshals McCarty, Henry Stryker, and Garlick. Mr. Starr conveyed to them the request of the meeting, and received from them an answer, that they were U. S. officer, that they had in their possession a warrant for the arrest of S. M. Booth, and that they should depart quietly when such departure was consistent with the performance of their duties.
While the Committee and Marshals were in conference, Rev. Hiram McKee addressed a large concourse of people in the streets.
At this writing the streets are crowded with excited people, and Mr. Booth is strongly guarded at the Hall, to which only known friends are admitted.
Comparative order and quiet reign this morning. The City Hall is vacant. Mr. Booth has gone--where, the public do not know. Report says he is on his way to Milwaukee--that he left town about eleven o'clock last night--and that two Deputy Marshals are in pursuit.
Republican Gathering--Speech of Gov. Randall
Word was sent to Gov. Randall yesterday requesting him to address the Republicans of Milwaukee in the evening. He accepted the invitation at once, and arrived in town last night at 9 o'clock. A crowd of about twelve hundred freemen had assembled in front of the Newhall to hear him, and listened for nearly an hour to his plain and pointed statements.
He commenced by stating that he did not intend (as announced) to make a speech in the Booth case. There might be a time when he would be called upon to act in that case, and then he would act regardless of the consequences. He then confined himself to an investigation, showing in anything but a favorable light.
His speech was received with great enthusiasm by the people, and the repeated attempts of a posse of Third Ward ragmuffins to interrupt, proved futile.
At the conclusion of his remarks, the said Third Warders called for Mat Carpenter.--That gentleman finally appeared on the balcony accompanied by Drick Pomeroy, but for some reason which we leave the Democrats to explain, he could not be heard, and there was no Douglas speech made.--Milw. Sentinel.
The Liberation of Mr. Booth
We received a telegram last week after we had "worked" a portion of our issue, and which went into a large portion of our circulation, announcing the forcible liberation from the Federal Bastile of S. M. Booth. The Sentinel tells, below, how it was done:
The way of it all was this! A few minutes after 12 o'clock ten determined men walked leisurely by the Custom House steps. They might have been taken for merchants having business with the Collector. They seemed entirely unconcerned, and were talking of every day matters. They, however, did not visit the Collector; and the Marshal they could not see, for he was luxuriating in pork and beans--eating his accustomed dinner in all the security and repose of a peaceful conscience and a masterly appetite.
The vigilant [Deputy Marshal] Burke, whose eye never sleeps, nor is known to wink, was alone visible. One of the gentlemen presented Mr. Burke with a card of admission to see Booth. The vigilant Burke took it, eyed it, spelled it, turned it over and was exerting the whole of his intellectual powers to read it, when one of the other gentle men [sic] caught him by the arms. A revolver gleamed before him. He heard the key turn in the door, and in another moment Mr. Booth stepped lightly over the threshold, and waving an affectionate au revoir, went down the iron steps as comfortably as though on his way to a tea party. Mr. Burke did not reply to the parting words--unfortunately for what he had to say--he found himself thrust into the room, and the key again turned. Ah, vigilant Burke!
Mr. Booth was prepared for the promenade. His boots were blackened; the greater part of his hair was combed, and holding a fragrant nosegay in one hand, and a pistol in the other, he passed down Wisconsin street, and walked over to the residence of his brother-in-law, T. J. Salsman, on Second street. Here a large concourse of people gathered to congratulate him.
From Milwaukee Mr. Booth proceeded in a carriage to a railroad station outside of the city, on the La Crosse road, and came on to Waupun. We learn that he addressed the citizens of Waupun on Thursday evening.
The Wisconsin and the News state that Prof. Daniels and O. H. LaGrange, of Ripon, were concerned in the rescue.
Before the train arrived at Horicon, Sat. Clark, who it seems had a small posse of men on duty there looking after the Railroad interests of the gentleman who has been lately appointed a Receiver of the M. & H. R. R., received a telegraphic despatch to arrest Booth, when he came along. Sat. wandered into the car, spoke to Booth, and jocosely remarked that he had received orders to arrest him, and in reply to the question why he did not do it, he said he didn't think he was under obligation to help Breckinridge's officials do their duty, on the strength of a telegram, and walked off.
While Booth was in Waupun, the free guest of Com. Heg, Marshall Lewis made a requisition of the Commissioner, and his police force, to deliver him up, stating that he was informed Booth was secreted within the walk. Mr. Heg replied he was not secreted, that he came and went when he pleased and where he liked , the same as any other gentleman, and as to using his police force to arrest him, they were more honorably and profitably employed. He further stated that Mr. Booth had been in the presence of a Deputy Marshall, who made no effort to arrest him.
After that, Mr. Booth went to Ripon, where it will be seen, by the extra from the Ripon Times, quite a scrimmage came on Saturday night, in the effort made to take him.
It will be seen that the Extra of the Ripon Times takes the swell out of the extravagant stories current in our streets, Monday last,--that Booth dared the Deputy Marshal, Mr. McCarty, to come on to the stand while he was speaking, and take him--and that Prof. Daniels fired three shots at McCarty, all of which he warded off with his arm, sending the shot into the ceiling, all of which is exaggerated rumor. If that would have been glory, Frank will have to sigh in vain for it.
[Page 2 Editorial]
SEVERAL THINGS IN BRIEF.--We have no space to comment at length on several things connected with the recent Booth affair; and hence shall roll them together somewhat. It is not such a triumph of the State Right principle as we desired to see, to take Booth out of jail by forcible means, although the men who did it violated no State law. They periled limb and life in a self-sacrificing manner merely to change the programme, and get it into a channel where something could be settled. The legal point, while the Supreme Count is constituted as it is now, was "played out." Not another move could be made. The victim is now at large where he can avail himself of the law of self-defence [sic] if he chooses. If he puts a ball though some Federal official's head, we shall not be surprised; and then the question can be tested whether Judge Miller can hang him, or even send him to States Prison.--If his rescuers are arrested, tried, convicted, fined and imprisoned, by the District Court, then the power of the State to protect them can be tested. Whatever is done, whatever is suffered in the direction we indicate, the Court can only come back to the one point that it might be at in one week's time if it was not divided by the refusal of Judge Paine to resign, viz: whether the Sate has power to arrest the execution of an unconstitutional law. If it can, it might as well do it by the liberation of Booth as to involve a troop of others in turmoil and difficulty through a series of months--perhaps years. It but complicates, it does not settle the strife. If the Supreme Court cannot release a prisoner circumstanced as Booth was, then it cannot save him from the halter or States Prison if he should take life in self-defence; or save his rescuers from fine and imprisonment. The writ of Habeas Corpus is to be executed at last unless the friends of freedom are to keep armed, and triumph, as they did at Ripon, the other day. This they cannot, and will not do for any great length of time consecutively,--the result will be that in an unguarded hour the talons of the infernal monster will take a fresh hold of the victim, unless he now exiles himself from the country. In either case, the Sate is disgraced and federal usurpation is practically enthroned. If the Federal officials shall now while the people are exasperated presist [sic] in attempting to re-arrest Booth, and at the same time annoy his rescuers, we shall not be surprised to see a storm invoked compared to which all that has yet transpired will be only a faint beginning. The fact is the Fugitive Slave Act, with all its pains and penalties, is a damnable outrage, on all that is sacred to Freedom in the human soul; and men who have blood that will run at all, cannot cower down before the scowl of Despotism; but from every human heart that is not scorched to cinders by the hell-fires of Hunkerism, a throb pulsates in harmony with the will of heaven, when the tyrant is laid low. Let them beware of the righteous vengeance they are provoking.
[Page 2 Editorial]
It does not surprise us that a paper of the known proclivities of the State Journal should object to the resignation of Byron Paine, as the only peaceful and legal solution of the questions involved in the imprisonment of Booth. Persons that do not believe in the sovereignty of the State, as against the Federal usurpation of an insulting and agravating [sic] character of course would be opposed to having anything done to vindicate the principle. It claims that the other purposes for which a judge is elected, are of such paramount importance, that to subserve them, Judge Paine is justified in maintaining a position that will keep a victim of Federal wrong in durance vile for an indefinite period. However good this doctrine may be to keep Byron Paine on the bench, it was not considered good enough to get him there; for we find that one of the editors of the said State Journal, and probably the same one that now feebly rebukes us, put his sign manuel to an Address to the people of Wisconsin when Paine was in nomination, in which we find the following sentiment:
"The issue made up before the people is, shall the decision of our Supreme Court in favor of Liberty be sustained; or shall the arbitrary and despotic decrees of Judge Miller, in favor of Slavery, prevail, as the settled policy of the State? Personal character, political considerations and pecuniary interests, all sink into insignificance compared with the Great Question which will be settled by the election of either of the candidates."
When such doctrines are sent out from head quarters by the editor of the State paper, may not we poor unsophisticated country editors be pardoned for supposing that it was but the voice of the party? How should we know it was only "buncombe" to be doffed within a year, and belittled below the question of the legal tenure to a tin-whistle? We had no way to even guess it, but to assume the hypocrisy of the State Journal portion of that Committee.
But now when the triumph of that "Great Question" is completely blocked, and it was reduced to a certainty that the State nor any of its officers could vindicate the principle that was thought to be so important when the election was depending, then, suddenly, questions of "political consideration and pecuniary interests" so "insignificant" before, rise and overshadow the "Great Question!" Is this the feast to which Freedom was invited? Are the ends Byron Paine was to subserve to result in such an inglorious fizzle? Besides would any of these other interests suffer in the hands of a new Judge? Who has any right to assume they would?
Byron Paine had before him the alternative to do what he could to make the State sovereignty a myth, by keeping a post that he could not do duty in, or by resigning it, remove the obstacle in the way of investing the officials of the State with power to protect the rights of its citizens. He chose the former; and so thrust upon the people the alternative of a forcible rescue, or the continued imprisonment of a citizen, in bonds for the noblest deed of his life. We do not believe all the good Byron Paine can do on the bench, over and above what any other good man can do, will justify the illegal imprisonment of a citizen to the end of Mr. Paine's term, or even to the end of Dixon's term; and we will thank wisdom itself to frame a way to legally turn the lock to the Federal Bastile save but by a writ of Habeas Corpus from the Supreme Court.
We have written the foregoing as tho' Mr. Booth was actually in prison, though knowing all the time that he was at large. Constructively he is there; for his prison is only enlarged by his rescue. It may contract to its original dimensions even before this is in print.
The Journal alludes to another statement we made as follows:
"As to the statement that Gov. Randall wanted Judge Paine to resign that he might appoint a man who would issue a writ of habeas corpus, we regard it as simply absurd. We do not believe he has ever expressed such a desire, and we think it far more probable that the person or persons who report him or Judge Doolittle or Potter as intimating a wish of that kind misunderstood or misrepresented them."
The person alluded to no doubt reads the Journal. He will feel highly complimented if his eyes should strike the above.
It may be possible that these men, are misrepresented, but if so, it is no credit to them. If after having stood up, a portion of them, in the councils of the nation, and one the chief executive of the State, as the representatives of the State, and broadly committing it to their doctrines, and sinking their own political fortunes upon it, they have neither regard enough for the honor of the State, or pride enough in the vindication of their own sentiments to care to save this question from being ignominiously squelched, it does not augur well for their stability, consistency or even spirit. The speech Judge Doolittle made on that subject last winter, makes one of the high monuments of his growing fame. Is it probable that he has no interest in a course of action that will either dissipate his words in the thinest [sic] air, or make them descriptive of a proud reality? Show me that there was, or now is, speaking in a legal sense, any way to untie or even permanently cut the Gordian knot, but for Judge Paine to resign, and we will then seriously consider the possibility of Judge Doolittle and the other gentlemen having been misrepresented.
Before Booth's forcible rescue, Byron Paine had an opportunity to show himself a man, as few men have ever had the opportunity given them. Whether he ever has another, will depend upon the success of the Federal bloodhounds in recapturing their escaped victim.
[Page 2 Letter to the Editor]
Editor Commonwealth:--It appears by the Press of Aug. 1st that a Democrat of Rosendale (?) [sic] is somewhat excited about the doings of the "Rosendale Republican Club." He should bear in mind that it is one of the cardinal principles of our party never to war on the weak, or withhold our sympathies from the needy;--consequently the "Forlorn Hope Party," with the "Little Giant" for its leader, will receive our compassionate considerations; and as it is generally conceded that Lincoln will carry the Free States, and Breckinridge the Slave States, we have only to maintain a "masterly inactivity" and give all needful assistance to help Douglasism, (that sham that don't care "whether slavery is voted up or dow) [sic] expire with becoming fortitude; and perhaps an appropriate song might tend to "mitigate their gloom," and enable their party to meet its fate with some other cheerfulness we would, therefore recommend the following:
"A man is lucky that's got brass--
A man is lucky that's got guts;
With brass and guts, and backers, too,
A smart man ought to wiggle through!"
If Douglas had "backers" wouldn't he be a power? By-the-way, we hear that those "same old coons" that the Press was so musical about, some weeks since, have become so numerous in Illinois, that the Democrats can get no "corn in Egypt" and a general famine is expected among them; and as they have no "Joseph" to apply to, except "Oregon Joe," who is playing the second David, among them, by doing his best to slay their "Little Giant," their only hope is to quit the "sinking ship," with all possible despatch, and doubtless many a Democratic Lazarus will do so and secure safety where Lazarus of old did--in "Abraham's" bosom. A MEMBER.
Rosendale Aug 3d, 1860
Wednesday, August 15, 1860
What has been Done?
As a matter of personal policy or convenience the wisdom of the individuals who rescued Booth cannot be commended. The same thing, however, may be said of almost every step ever taken in vindication of a right and in abrogation of a wrong. As a matter of personal convenience, the men who inaugurated the revolution which separated this country from the mother country, were as great fools as ever went at large. Not one of them but might have achieved wealth, and honor, by a quiet acquiescence in the violations by the King of the fundamental principles of human rights. But for the sake of humanity Providence has created some men in whom the love of abstract right and the prophetic instinct of the great importance of that right to those yet to be, are the chief and most powerful impulses to action. In the times of '76 men met and pledged their lives, their fortunes, and their sacred honors--to what? Simply to the vindication of that abstract principle that all men are created equal and endowed by their creator with certain inalienable rights. What present folly; but what future wisdom?--The motive, works, &c., now under consideration of these men, are not a particle different. Personally it may prove a great inconvenience to them, but it was a blow made necessary by the failure of all other means to vindicate, or put in the way of being vindicated a most important principle, and all the beneficial effect of which blow, in less than a quarter of a century hence, will be universally admitted. It is a principle not involved in the present Presidential strife, and which will not be determined by it, and which without this movement on the part of these men, bid fair to die in the hands of its friends, and with it to perish all the great interests depending on it.
For whatever others might think of it, we do think that the liberties of this country are involved in this question, whether the Supreme Court of the United States is the ultimate of all power or the people are;--and that this is the real question is apparent. We may disguise it in what phrase we please, and find what excuses we may in our reading of the constitution, for investing the Court with despotic power, but that after all is the real question. The question bid fair to be finally determined against us by the unfortunate condition of our Court, for had Booth been pardoned by either Buchanan or Lincoln, it would have fallen dead; and the usurpation of the Court would have gone on and been established. And Republican ascendancy would not have been different in this respect than Democratic. A wide and liberal despot may make a good government, but we don't want the despotism after all.
As we have said, while we should have preferred a different solution of this question, we are nevertheless satisfied to leave it where the action of these men have put it. It is not the best, but if the U. S. government will let it be, it is a sufficient vindication of state sovereignty. But it is not likely the government will be content to let it rest. Blind, like a viper in dog-days, with the virulence of its own poison, and in the agonies of dissolution too, from the effects of its own poisons, it stings indiscriminately , unknowing and unmindful whether its fangs strike its own flesh or strike elsewhere. We may expect it to pursue the men who have thus vindicated state sovereignty unrelentingly. This, then, will untie, the Gordian knot which binds our Court. Instead of the apologies and excuses which have come from the bench paralyzing this question, we shall have the thunder of strong reasons, and sound argument.--Judge Paine will become himself once more, and under the influence of his sound judgment and impregnable reasoning, we shall resume once more the march to victory on this great question. These men will suffer present inconveniences. They may, as Booth has been, be ruined in their business and prospects, but while they have the hearts if not the heads of all good men with them--they and the State with them will ultimately stand free and vindicated.
We say, if these men have not already solved this question, by the future quietude of the general government under their action, they have put it in the way of being settled definitely and forever. And we cannot doubt what that settlement will be. That a majority of the Court is sound on this question of State rights, is not to be disputed, and as we see this thing there can be but one solution to it on their part. The men who rescued Booth, in the eye of the State authority, as determined by the decision of its highest Court, never revoked, simply occupy the attitude of men who have rescued a fellow-being from the hands of pirates or kidnappers. The Court decided not only that the indictment under which Booth was convicted was fatally defective, but also that the fugitive law was unconstitutional and no law. It declared him free and absolved him from peril, present or future. That decision was never revoked, and when B. was re-arrested, so far as the state was concerned, the act was not a particle different than would have been the act of arresting and incarcerating against whom a suspicion of crime had never been breathed. And imprisoning him in the Custom House was, of course, not different from his incarceration in any other building in the city. Had Booth shot down the man who laid hands on him to arrest him, it can scarcely be questioned that that the Supreme Court must have held it to be a lawful act of self-defence. [sic] Or had any citizen present at the time, aided in releasing him from the individual or individuals, they must have been held to be justifiable, in that they simply aided an innocent man to escape from lawless persons who assaulted him, for purposes of their own. Can the act of those men be differently constructed? If such is not the logical deduction from the State Right principle, we confess we cannot understand the matter. It must be.
Then what have we in this matter?--Booth has gained little by his freedom, thus obtained. These men, personally, have gained nothing--and have perilled [sic] much. But this great question, if not already favorably settled by this action, has been taken out of the unfortunate limbo, in which it was dying by inches, to be vivified into new and enduring life, to be triumphantly vindicated and sustained. And in after years, when it shall be discovered that it was only by the realization of the principles of Thomas Jefferson that this republic could be sustained and the liberties of its citizens be preserved, this act will be recurred to, as that which awakened this principle, secured its triumph, and saved the republic.--Free Democrat.
[Page 1 Letter]
Opinion of Judge Paine on declining to act
on the Habeas Corpus in the case of Booth.
SUPREME COURT--In the matter of the application of T. J. Salsman for a writ of Habeas Corpus in behalf of Sherman M. Booth:--
At the last term an application for a writ of Habeas Corpus, was made by Sherman M. Booth for the purpose of being released from an imprisonment in which he was held by the Marshal of the U. S. for the district of Wisconsin, in the building erected for a custom house and other purposes in the city of Milwaukee. It appeared from the application that the imprisonment was made under a conviction in the U. S. district Court, for an alleged violation of the Fugitive Slave Law. Having acted as his Counsel on the trial of his indictment before that Court, I declined to take part in deciding upon the application here.
This application is now made for a writ to release him from the same imprisonment. And it was earnestly insisted that it is my duty as a Justice of this Court to act upon it. It was said that my refusal to do so would not rest upon any valid legal reason but only upon a mere professional feeling of delicacy, or dread of unfounded criticism to which I might be exposed. Is this was so, my own opinion would be that I ought to act. For I concede that no such personal consideration would justify my refusal in a matter affecting the liberty of a citizen upon which he has a right to apply to this Court, and is entitled to the judgement [sic] of all its members who are in law competent to act.
It was suggested upon the argument that the rule prohibiting a Judge from deciding upon matters which he had been employed as a counsel rested only upon a custom among the profession. Even if that were so, it would be very satisfactory evidence to me of its propriety. For I shall not affect to deny that I should regard the deliberate judgement of the legal profession upon a question of this kind as entitled to much greater weight than that of any other class in the community. In deterring it they are not asserting any superior privileges or exemption for themselves. On the contrary, they act as the representative of other classes--of all whose rights may be determined in courts of justice. They represent all others in the actual conflicts here, and they represent them equally in settling before hand the rules by which those conflicts shall be conducted. And they are mutually interested in settling them fairly, for there is no member of the profession whose own clients might be victims of any wrong principle introduced into the administration of the law. They are better qualified to judge upon the matter than any other class. They are familiar with the struggles of the legal arena. Their lives are spent in observing human nature under circumstances which stimulate to the utmost both the intelect [sic] and the feelings. They know both from experience and observation the influence produced by the relation of counsel to a cause. And when the deliberate judgement [line unreadable on microfilm] this experience, has established the rule that it is unsafe to permit a Judge to decide upon matters in which he has been employed as counsel, it is to me the highest evidence of its wisdom and propriety.
But there is no conflict between the opinions of lawyers and the rest of community [sic] on this subject. There is no man who has a suit in court, who would not say if the counsel of his antagonist should uncothe [become the] judge of that court that it was improper and unjust, and without his consent to allow such judge to decide his suit. The judgement of all men will concur in this.--It rests upon the same principle with the rule prohibiting a man from being judge in his own case. Both are established, not because there is no man capable of deciding properly a case in which he is interested, or has been of counsel, but because experience shows that it is unsafe to risk it as a general rule, and it must therefore be prohibited entirely. For such rules must of necessity be general; as it would be impossible for the law to say that those judges who are superior to the influences which may prevent an impartial judgement, might act in cases where they had been of counsel, but that those liable to be affected by such influences should not. The difficulty wo'd be, there would be no means of testing the questions, and it certainly could not impose on any judge the unbecoming duty while conceding the necessity of the rule in some cases of determining whether it might safely be dispensed with in his case on account on account of his superior impartiality and exemption from all human weaknesses and prejudice.
But it is a mistake to suppose that this rule rests only upon a custom or understanding among the legal profession. On the contrary, it is a matter of positive statue [sic] in this an many if not in all of the other States. In the first act providing for the election of Judges after this State was admitted into the Union is the following provision:
"In case the Judge of the Circuit Court shall be interested in any cause or causes pending in said court, or shall have acted as attorney, solicitor or counsel for either of the parties thereto, the same judge shall not have power to hear and determine such cause or causes, except by consent in writing of the parties thereto," &c. It is true the language of this provision (which is still in force, R. S. 1858 ch. 119 S. 21) mentions only "Circuit Judges," but it is to be remembered that at the same time it was adopted and for five years after the organization of the State government, the Supreme Court was composed of Circuit Judges.--Since the change to the present constitution of this court it [sic] justices may not be within the exact letter of the law, yet they are clearly within its spirit and intent. For the idea is not admissable [sic] for a moment that the legislature suppo[s]ed human nature in a justice of the Supreme Court, was any different from that same nature in a Circuit Judge; or that the former was any less liable the than latter [sic] to be influenced by interest or prejudice.
There is another provision which shows beyond all question the intention of the legislature to secure the judgments [sic] of the court from any possible influence by reason of any previous bias on the part of the judge. Sec. 22 Chap. 119, R. S. 1858, is as follows: "No Judge of our appe[l]late court or of any court to which a writ of certiorari or of error shall be returnable shall decide or take part in the decision of any cause or matter, which shall have been determined by him while sitting as a judge of any other court, unless there shall be a quorum without him."
Now it is absurd to suppose that the legislature would prohibit a justice of the court from taking part in a case which he had previously decided as a judge of another court and yet allow himself to act upon case in which he had been employed as a counsel. Or that while conceding that this fact was likely to prevent an impartial judgment, they intended to guard against it in the circuit courts whose errors the law assumes may be corrected by appeal, but yet make no provision against it in the Supreme Court, against whose errors there is no redress. I presume such a construction of these provision would not be maintained by anyone. And, although it would seem unnecessary, I have made these suggestions for the purpose of showing that the rule in question is founded upon the provisions of law, and does not rest upon a mere feeling of professional delicacy, which any judge would be at liberty to disregard if he chooses to take such responsibility.
In a recent impeachment trial, in this State, one of the prominent charges against the accused, was that he had acted as judge upon matters which he had been employed as counsel. The charge was drawn substantially as follows: "That he has presided and adjudicated as such judge in the Circuit and Supreme Courts of this State, in causes in the subject matter whereof he had been retained and counseled with as attorney, solicitor and counsellor [sic], by parties to such causes, and had acted as attorney, solicitor and counsellor for such parties, contrary to the statute in such cases made and provided, and to the manifest corruption and scandall [sic] of the administration of justice." This charge was preferred by the Assembly, it was pled to by the accused, and was tried before the Senate, and altho' an acquittal took place, it was never supposed that the charge, if true, did not contrain proper grounds of impeachment. And if I should act upon this application and the Assembly should prefer this same charge against me, I cannot well see how I could, in conscience, plead not guilty.
But it was urged that I should act in this case because the petitioner relies upon new matters, not inconsistent with the legality of the original conviction. These are, that the imprisonment is in a place unauthorized by law, and that the court had no power to issue a process requiring the prisoner to be kept in custody for the non-payment of the fine, after the expiration of the thirty days for which he was sentenced to imprisonment. I deem it a sufficient answer to say that the mere fact that new questions may be raised, or new grounds of illegality insisted on, do not take the case out of the rule, or justify a judge in acting upon habeas corpus, asked for to release a person from imprisonment under conviction upon which he was either prosecuted or defended by such judge as counsel. The law presumes that in one case his prosecutor may have become so prejudiced against the prisoner, with respect at least, to that particular offense ,that he might not lend an impartial ear to new reasons for his release on the other; on the other, that the counsel who defended him may have become so strongly impressed with the illegality of his conviction, that he might give undue importance to any new matters urged in his behalf. It would be for the man's prosecutor or defender to sit in judgment upon the illegality of his imprisonment under the conviction; a thing which seems so manifestly improper that no suggestion of new questions different from those arising upon this trial, can [line unreadable on microfilm] tion. If the distinguished counsel who prosecuted this prisoner, should, without his consent act upon an application of this kind, (which I believe he would never do,) I should not hesitate to pronounce it a clear violation of those rules which the law has established to secure its own impartial administration. And the same judgment which I would pronounce upon him I must pronounce upon myself.
I have made these remarks upon the hypothesis that that [sic] the new grounds relied on are the only ones upon which I could act, if if [sic] I acted at all. But it is not so; and this seems to me to be a decisive answer for the claim that these new matters make the case an exception to the general rule. It appears from the application that the prisoner is in custody under a conviction for the violation of the Fugitive Slave Law; and if I am competent to act upon this application at all, I must act upon the whole of it; and even though I should be against the petitioner upon the new matters relied on, nevertheless, if I was of that the District Court had no jurisdiction of the offense for which he was sentenced, should be compelled to hold its judgement a nullity, and to grant the writ. The fact that his counsel have not seem fit to argue this upon the argument would not relieve me of the duty of granting the writ. If I should think the prisoner was entitled to it in law upon the facts appearing in the application.--The remarks of Mr. Justice Smith on the first application made in behalf of the prisoner, reported in 3d Wis. p. 14, fully sustains the position that counsel cannot by waiving any particular question arising upon facts presented, relieve the court or officer from the duty of deciding all the questions necessary to a legal determination of the case. For these reasons, I am of the opinion that I ought to take no part in deciding upon it.
I should not have felt at liberty to file this opinion merely as a personal explanation, for that I perceive not to be called for from a judicial officer. But as it was claimed and urged in behalf of the prisoner as a legal right that I should act, I think it is one of the legal questions fairly presented, and one upon which the court ought to express its opinion.
[Page 2 Editorial]
Our readers will notice a long communication from Gen. Jas. H. Paine, of Milwaukee, in which we are sharply reviewed and corrected. The extract complained of, and quoted, was hardly original with us, being but an abridgement of what we took for facts, from the Free Democrat. We think they were not distorted, and trust were not weakened by being expressed in slightly different language in our paper. This being the case, we can hardly see the reason why a representation made far more widely by the Free Democrat should pass without note, while we are called to order as though we were the first utterer of the extract which put Gen. Paine in a false-position before the public. It is possible the copy of the Free Democrat of which we speak, was not seen by Mr. Paine.
However that may be, we take pleasure in giving him an opportunity to correct us, and set himself right.
Mr. Paine accuses us of what he will see is unkind and unjust, if he will take the trouble to re-read any or all the articles we have penned on this subject, when he says"notwithstanding all the uncharitable and hard things which you and some other editors have said against Byron [line unreadable in microfilm] itable or hard, we were quite sure we had not been so false to ourself as to evince anything of the kind. Neither have we ever insisted that he ought to act. We are not lawyer enough to determine what the proprieties of the position would command under such circumstances. We, however, appreciate the reasons given why he did notact, and think them to strong for us to combat. But as we never claimed he ought to act, we have no back track to take on that point.
"You and some others have sneered at the idea that he was bound by a custom." Can we not state a fact, without having a sneer imputed or inferred? Quote a sentence we have written that by stretching can be construed into a sneer, and we will make the amende honorable.
The facts are, in this whole matter, we have given Judge Paine credit for being true to the principle, have conceded him abilityand have supposed he was as anxious as any one to see the sovereignty of Wisconsin vindicated. Without any of his advisement of knowledge, a course was taken by Mr. Booth's counsel and friends, which left the case of state rights in a peculiar shape. The Supreme Court, as constituted, was neutralized. The officials of Milwaukee County either would not grant a writ, or granting it, would remand the prisoner. The whole thing had had simmered down to two points,--continued imprisonment, or the resignation of Judge Paine. We could not ask Dixon to resign--he was not a friend to the cause.--We could look nowhere but to one so true, that we felt he might be proud to sacrifice a little for the great cause that was chiefly instrumental in bringing his worth into an early appreciation. Our noble friend, Gen. Paine, has but one plea to urge against the wisdom of our request; and that is he cannot trust the Executive to appoint a successor. We submit that if in the absence of a single other reason why Judge Paine should not resign. Gen Paine has not virtually confessed that there is no other reason to urge. And now we ask is that reason worthy of the author? and [sic] is it not an assumption more uncharitable than the sayings of any Republican editor complained of? May one official make certain the continuation of a wrong, because he fears another official will betray a trust that the law in a certain contingency reposes in himself? Not by any means. Besides were his worst fears realized, the wrong he would right would be no worse, and his action would unmask, in that case, a pretended friend.
If Gov. Randall is the man deserving such insinuations, we can conceive of no better service Judge Paine could render the State, than to "show him up." It is not conclusive by any means, to say that because Gov. Randall appointed Judge Dixon that he did it with the intention of betraying State rights. The proof has been before the public that he took the precaution to sound Judge Dixon on that point before appointing him to the Circuit Judgeship, and received so favorable an answer that he did not consider it proper to ask the same question again when elevating him to the Supreme Bench. As true men as even Gen. Paine considered Dixon true, two years ago, to our certain knowledge. A course of action that can only be justified by reflecting upon the Governor, and assuming his treason, it strikes us is not conscious of possessing great strength.
We take leave of this whole subject by remarking that Booth is out of prison, and that while he is out, we would as soon have Byron Paine for Judge as any one, and that it will depend entirely upon the efforts and success of the Federal Marshals, whether his resignation will ever again be desirable.
[Page 2 Letter]
Letter from Gen. J. M. Paine
MILWAUKEE, August 9th, 1860
EDITOR COMMONWEALTH:--Sir:--In your paper of the first of August, you published the following:
We have also learned that it was the wish of Mr. Booth when he was first re-kidnapped, that application for a writ should be made to Judge Albert Smith, of the municipal Court of Milwaukee, as he was of the opinion that Byron Paine would not act, and foresaw the exact dilemma now involved in this case. And it was only after the most positive assurances by his counsel, that Judge Paine would act, that he reluctantly consented that a direct application should be made to the Supreme Court. We have no idea but that his counsel, Gen. Paine, was firm in his belief that Judge Paine would act, or he would not have so represented--for every fibre of his body and every impulse and instinct of his soul is for liberty--but he was most lamentably mistaken as to the course his son would take in the matter; and so we are where we are.
Now permit me to assure you, that your information in nearly every particular is erroneous and untrue. The following is a substantial history of what occurred before I left for Madison to make Mr. Booth's application. I had a short interview with him in prison (the upstart tyranny of the Marshall not allowing a favorable opportunity for consultation), at which Mr. Booth submitted his case to the judgment of his counsel and friends.
In this consultation, which was brief, I do not recollect that anything was said about an application for the writ to Judge Albert Smith of our County Court; and my belief is that not one word was spoken on this subject. The question whether Judge Paine would act on this matter was not started between us; and of course, I gave him no assurance whatever, that Judge Paine would act on the application. Shortly after this interview with Mr. Booth, some fifty gentlemen assembled in my office for consultation. Some four or five lawyers and C. L. Sholes, the editor of the Free Democrat were in this meeting.
The question whether an application for a habeas corpus should be made to Judge Albert Smith, or to the Supreme Court, came before this meeting for discussion, and elicited a free and full expression of the opinions held by the friends of Mr. Booth. The probability of a collision between the authorities of the State, and the arrogant usurping authorities of the District Court and Marshal, were taken into the account; and it was concluded that a writ from the Supreme Court would carry with it a moral power and weight of authority not to be found in its court of inferior jurisdiction, however worthy and learned the Judge. After this discussion there was a unanimous vote that the application should be made to the Supreme Court.
The question whether Judge Paine would act was not started in this meeting, to the best of my recollection; if it was, it had no response from me.
The result of this meeting I communicated to Mr. Booth, and with his entire [line unreadable in microfilm] the application to the Supreme Court.--So far from being, as you assert, "firm in the belief that Judge Paine would act" in this matter, my belief was that he would not act at all. I knew he had been Mr. Booth's counsel; I could not conceal the fact that his imprisonment was a continuation of the old suit, and I perceived that the rule of practice which prohibits a judge from sitting in a case in which he had been counsel, applied to him with all its force. I did not even ask him to violate this long established and wholesome rule.
So far, then, from being "most lamentably mistaken as to the course Byron would take in this matter," as you assert, I was not mistaken at all, as he took precisely the course which I foresaw he must take, or violate his oath of office.--Let it be remembered that this oath requires him to administer the law as he finds it, not according to his own views of what it ought to be, or the ill-digested opinions of those who elected him.
I am glad you count me among the friends of liberty. In a humble way I have made some sacrifices for liberty, "Heaven's best gift to man." I am also a friend to State Rights. At the risk of a charge of egotism, I claim that Hortensius Paine, Byron and myself first took the responsibility of bringing the cause to State Rights before our Supreme Court; and of calling the attention of the people of this state to the necessity of maintaining this doctrine, as a constitutional shield against the despotism of the slavery-ridden Federal Courts. This doctrine is a cardinal part of our political faith. Our attachment and devotion to State Sovereignty are inbred. I trust, God helping us, we shall never betray or become indifferent to this cause. And notwithstanding all the uncharitable and hard things which you and some other editors have said against Byron, my confidence in his integrity to the doctrine to State Rights, and his readiness to labor and make sacrifices for its defense, is just as firm and full now, as it was when he was exciting every power to vindicate that doctrine before our Supreme Court. There, as an advocate, he was free to follow his convictions of right, and to indulge in expressions of love for truth and liberty.--But now, as a judge in Booth's case, an inflexible custom or rule of law forbids him to act, and closes his lips in silence. But he is the same devoted friend to the cause. You and some others have sneered at the idea that he was bound by a custom. You have not well considered this point. A general custom is as binding upon a judge, as any rule of law; indeed, general customs form the common law. Judge Blackstone says:
"This unwritten or common law is properly distinguishable into three kinds: 1st, General customs, which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual significance.--Blackstone's Commentaries. 1st Book, 3rd Sec., p. 67.
In the light of this definition, common minds
must perceive that to disregard a general custom, is to violate a rule of law. The reason
of the rule or custom which prevents a judge from acting in an action in which he has been
counsel, is very obvious. It is to avoid an adjudication of a matter by a person who has
formed a prejudgment on the same subject. This rule is not confined, in its application,
to judges; it excludes from the jury-box, all persons who have formed and expressed
opinions on the subject to be submitted to the jury.
If one of these men, who are so urgent for Judge Paine to act in an action in which he has been counsel, had a case of his own before a jury, would he think it right and just for the judge to allow the panel to be filled with persons who had formed and expressed opinions against him?
Would he not deem his chance of obtaining justice somewhat diminished by such management? I am mistaken, or such a case would make a change in the current of his thought, about the value of this custom.
It is a general custom with all courts, to exclude from the jury box persons who have formed opinions on the subject matter to be submitted to the jury. The common people know and understand this., and approve the rule. It is a general custom, of the same force and authority, for a judge to refrain from acting in a cause in which he has been counsel.--These customs are not for the benefit of lawyers, but for the protection of the rights of clients; for the security of all who are obliged to vindicate their claims in courts of justice. And the judge who fills the panel with prejudiced jurors, or adjudicates a matter in which he has been counsel, violates his oath of office, by violating a rule of law which he swore to support.
The Free Democrat attempts to avoid the force of this rule, by declaring that John Doe and Richard Roe have as deep an interest in the principle involved in Booth's application, as Booth himself. I admit that the people of our State and the Union, have a deep concern in the principle of State Rights; but does that make it any more proper for Judge Paine to take cognizance of Booth's case, in which he had been his counsel, and thus violate a long established and wise custom, which he had sworn to support? The logic of the Free Democrat is inconclusive.
The persevering pressure upon Judge Paine to act in this matter, was without knowledge, unwise, unjust, and wholly inexcusably, but upon the theory that the seal of these friends for the cause of State Rights, has clouded their minds, so that they did not discover the true merits of this controversy. But you and others say, if he will not act, or can not act, he must resign, and give the appointing power and opportunity to fill his place with a man who will act, and grant the writ of habeas corpus. With the history of a former appointment to this Court, which, unfortunately, changed its State Rights character, this, I deem, very cool advice. It requires no small amount of credulity, under the present circumstances, to believe men serious, in claiming that there is a probability that a vacancy on the Supreme Bench , could be filled with a man of principles favorable for State Rights. Our cause at this time, is not sufficiently commanding to justify any such expectation.
I respectfully request you to publish this letter. My apology must be found for this communication, in the fact that you placed me before the public in a position condemnatory of the course of Byron, which I am unwilling to occupy.
J. H. PAINE.
Wednesday, August 22, 1860
Prof. EDWARD DANIELS, State Geologist, was arrested at the Lewis House in this city last Thursday morning by Deputy Marshal Rodgers of Janesville, on the charge of being one of the rescuers of Mr. Booth from the Custom House.--He was taken aboard the cars immediately and conveyed to Milwaukee, and imprisoned in the U. S. Bastile. Friday morning he appeared in Court and waiving an examination was held to bail in the sum of $2,000. Gen. Jas. H. Paine appeared as counsel for the accused. Mr. Daniels will, of course, be at large until the next term of the U. S. District Court commences.
Some suppose that at the present state of proceedings Mr. Daniels could successfully apply for a writ of habeas corpus for his release. We do not so understand it. Not until he has had a trial in the District Court, and been convicted and sentenced, will the Supreme Court feel justified in interfering in the matter. The same ground, indentically, has all been traveled over, in conducting the original case.
There is a more important question that the foregoing; and that is, whether Judge Paine will take the ground that the case of Daniels, and others who may be arrested and convicted for being engaged in the rescue, is so nearly connected with the original case that he cannot adjudicate it; whether he can determinethe legality or illegality of opening the prison doors to a person whose imprisonment he held he had no right to pass upon. Can he take the ground that the rescuers were guiltless without passing upon the validity of the imprisonment of the person released. He would not, because he tho't he could not, do the latter. Will he do the former?
We learn that Judge A. D. Smith has been retained as Mr. Daniels' counsel. A wide selection; one that will probably result in giving the prisoner, and the world, the benefit of a Plea that will educate even the best Jurists.
[Page 2 Letter]
Letter from Prof. Daniels.
U. S. Custom House,
Milwaukee, August 17, 1860
To the Editors of the Daily Wisconsin:
I was surprised on taking up the News this morning to see the following statement: "Mr. Rogers informs us while in Fond du Lac yesterday, on his way to Ripon, he saw Daniels upon the street, and walking down to him, told him that he had a warrant for his arrest, and invited him to walk down to the Lewis House. Daniels replied that he did not know whether he would or not. Mr. Rogers immediately informed him that he would," &c.
This statement is unqualifiedly false; it conveys the impression that I was unwilling to be arrested, but was afraid to resist, I received notice from Mr. Rogers, of Janesville, that he had a warrant for me, asked to see it, read it, and returned it to him, quietly remarking without a moment's hesitation that I would go with him. I then requested him, if consistent with his duty, to go with me to Ripon, that I might see my family and arrange for my absence. On consultation it was thought that he could not legally do so, and I can without objection to this city.
I was at Fond du Lac examining the artesian wells in the prosecutson [sic] of the Geological survey--had not so much as a pocket knife about me, and had everywhere exposed myself as usual, saying to all who asked, that I should not resist an arrest. I had thus written and stated verbally to Deputy McCarty, who was with Rogers at the time. It will scarcely be possible to extract much glory out of this performance in a military point of view, though the odds against the Marshals were certainly very great. Some half a dozen of them having secured one unarmed man, who had previously given assurance by his conduct of peaceable submission to process! May their laurels never fade!
I neither desired nor expected my rescue either here or elsewhere. What I might or might not have done, is a matter of no consequence to state. I am quite willing to leave boasts of courage and martial prowess to those who like to do business on that kind of capital, content, if when duty requires me to face danger, I shall not be found false to my manhood and the memories of an heroic ancestry. I have no desire to reflect upon the officers who arrested me, but only to correct a statement which places me in a false position. I take pleasure in acknowledging that my treatment at the hands of the U. S. officers has been kind and considerate since my arrest.
My connection with this affair is based upon considerations which commend themselves to my conscience and judgment.--My motives will be understood and accepted in vindication of the rectitude of my intentions, by all those whose good will is of any value to me. As I have sought neither fame nor emolument nor personal advantages of any kind in this direction, so the loss of all these will not disapoint [sic] me, and whatever consequences come, I hope to be able to meet them without repining. I can very well afford to bear the taunts, both of political opponents and of those feeble, timid brethren in my own party, whose watery blood never warmed nor quickened its flow beneath a generous impulse, and who see in the quiet liberation of Booth, a second John Brown come to defeat the Republican party, and dissipate into thin air their gorgeous visions of Federal patronage. I commend tois [sic, this?] latter class to the consolations of my friend D. A. J. Upham, U. S. District Attorney, who has just given his official opinion "that nothing can prevent the election of Lincoln." I know ell that there are brave and good men in both parties who differ widely from me in opinion, will give me credit for honesty of purpose. And this, with the sympathy of large and loving hearts among the uncorrupted masses of the people, and a sense of the approval of that Being who has said "Remember those who are in bonds, as being bound with them" will be my exceeding great reward.
Meantime, let every true man take his reckoning, and see into what shoreless seas of despotism we are drifting, when the exercise of the best Christian charities are crimes in Wisconsin.
Wednesday, August 29, 1860
Letter from S. M. Booth.
AT LEAGUE, August 20th, 1860
To the Editor of the Commonwealth:--
I have just this moment seen the letter of Gen. Paine, in your issue of the 15th inst., in correction of your article of the 1st instant. That Gen. Paine would willingly misrepresent the facts I do not believe. But he has forgotten them. Your and the Free Democrat statement of the matter is correct. And now that this question is opened, I feel called upon to make a full statement. After the opinion of Justice Dixon was made public, sustaining the validity of the Fugitive Slave Act, and it was reported that I would be arrested again, I determined--and so expressed myself to friends--that if again taken into custody, I would apply, not to the Supreme Court, but to Judge Albert Smith of the Milwaukee County Court, for a writ of habeas corpus, because I feared Justice Paine might--as he did--decline to act, and a divided Court could not issue a writ. And after my imprisonment I was peculiarly anxious on this point, and so expressed myself to my wife--the only friend then allowed to visit me--before Gen. Paine had his first consultation with me. That consultation was very brief--not exceeding seven, and I think not over five minutes--in which he stated that a meeting of friends was to be held at his office that night, I thin, and that he wo'd draw the necessary papers and call again as soon as they were prepared. At that time, I forgot to say anything about the Court to which I wished him to apply for the writ, until he had left. I then charged my mind especially with this point, as a vital one on which to speak to Gen. Paine at the next interview. When he came again, with the papers, I found they were drawn for an application to the Supreme Court. I then expressed to him distinctly and emphatically my wish that he sho'd apply to Judge Albert Smith for the writ, and my fears that Byron would decline to act. He then replied that Maj. Ira C. Paine--his brother, and Byron's uncle--who had come in from Madison, and had had a talk with Judge Paine on the subject, and he--the Major--assured him Judge Paine could act in my case, and he--Gen. Paine--repeated to me that there was no doubt of it. He also added that it was the opinion of the meeting, held in his office, at which there were several lawyers--and I recollect his naming O. H. Waldo, P. Hotchkiss, and I think D. L. Deyo--that Judge Paine could act, and that the moral power of a writ from the Supreme Court wo'd be greater than a writ from an inferior Court. I still had misgivings, but the positive assurances of my counsel that Judge Paine would act so far overcame them, that I consented--reluctantly, but without further protest--to the application to the Supreme Court. But without such positive assurances, I would never have permitted such an application.
Thus far my statement stands in opposition to Gen. Paine's--my word against his. But I think I can give corroborating evidence satisfactory to all candid minds that my statement is true, and that Gen. Paine is mistaken. I submitted the case to my counsel and friends [three words unreadable] and no farther than to request them to procure me a writ of discharge from imprisonment. But I never submitted to them the question of what Court they should apply to for such a writ. And I acquiesed [sic] in their decision to apply to the Supreme Court only because they claimed to know that Judge Paine would act. And this fact, with Gen. Paine's means of knowing it, I stated to several people while Gen. Paine was absent at Madison, before I knew that Judge Paine had refused to act, and I am confident it will be found recorded in my daily private journal, and in confidential letters written at the time, but not now within my reach. I stated these facts to various persons afterwards, but months ago,--among them to Judge A. D. Smith, James Dousman, W. G. Roberts, foreman of the Free Democrat, and many others, by way of justification, some of whom blamed me for making the application tot he Supreme Court--with no more expectation of a denial of them from Gen. Paine than I had of his turning slave catcher. But Gen. Paine, in his eagerness to defend himself and his son. places himself in a false relation to his client. He says that "so far from being 'firm in the belief that Judge Paine would act' in this matter, my belief was that he would not act at all." * * * "I was not mistaken at all, and he took 'precisely the course which I foresaw he must take,' or violate his oath of office."
I confess, Friend Smith, that those are statements hard to be reconciled with his subsequent acts and his duty to me, whose personal liberty was dependent on his proceedings. Where but a few dollars and cents are concerned, carelessness or indifference , may be overlooked. But where that which is dearer than life is involved to risk the interests of his client in a court which he has every reason to believe will sacrifice them, when another court is open to him, where there is a reasonable certainty that justice can be obtained, and to take this risk, too, without apprising his client, or his friends--met to consult on the subject--of the danger, is to me passing strange! For Gen. Paine knew that Justice Dixon had given his opinion, and published it to the world, that the Fugitive Act was constitutional, and that I ought to be remanded to prison and kept there till I had complied with the sentence of the U. S. District Court. Of course then he know, or might have known, that Justice Dixon would not grant the writ. And he said that he foresaw that Justice Paine could not grant it, without violating , his oath of office. and yet with this belief and this foreknowledge, that Justice Paine would not act , he meets in counsel on this case. In his office, "some fifty gentlemen," among whom he says were "four or five lawyers, and C. L. Sholes, editor of the Free Democrat," where "the question where an application for a habeas corpus should be made to Judge Albert Smith, or the Supreme Court, elicited a free and full expression" and yet, he says he does not recollect that "the question whether Judge Paine would act was started," and "if it was it had no response from me." [him] [sic] He did not say a word to these, my friends, to warn them that he "foresaw" Judge Paine could not act without perjury. And he certainly never intimated such a thing to me, but, on the contrary, assured me that Judge Paine would act--that there was no doubt of it. Had he informed me what he now says he believed and foresaw as inevitable, I must have been demented to have permitted him to apply to the Supreme Court for a writ in my behalf. It is painful to me to be obliged to write these things, but is to the cause of truth and Freedom that they be said. And while affirming the entire truthfulness of the statement in the Free Democrat--which paper is requested to publish this communication, if it published the denial of Gen. Paine--I do not mean to impeach the integrity of Gen. Paine. He has forgotten the facts and circumstances--he is simply mistaken. He was not in a position to remember them, as distinctly, and as vividly as I was, who suffered the evil consequences of this misjudgment. And I never should have made public any statement of this matter, had I not been publicly blamed in various quarters, as having needlessly sacrificed the sacred cause of Freedom, by this mal-application.
And now, one word in relation to two or three points in your editorial, not [word unreadable] of Gen. Paine's communication.
1. As to Gov. Randall. Where he stands in this controversy, I know not. His professions, in his Annual Messages, and the assurances of some of his personal friends, persuade me that he is a State Rights man. But some of his appointments, and his want of action persuade me to the contrary. He has not exercised the law in my behalf, although that law is essential to the preservation of liberty. The law declares that, "No person who has been discharged by the order of any officer upon any habeas corpus [word unreadable] pursuant to the provisions of this chapter, [on Habeas Corpus,] [sic] shall be again imprisoned, retrained, or kept in custody for the same cause." He has sworn "to maintain and defend the sovereignty and jurisdiction of the State," and "to take care that the laws be faithfully applied and be [remainder of line unreadable]. He knows that armed kidnappers are prowling about the State on my track, seeking to imprison or kill me, and yet, as far as I know, he has taken no measures to repel this invasion of the sovereignty, jurisdiction, and laws of the State. The Free Democrat publishes his Message of the 7th of March last to the Legislature, as a justification of his non-action in the premises; but to my mind it is no better excuse for it, than Webster's 7th of Mar. speech ten years ago, was for the Fugitive Slave Act. It is but fair to Gov. Randall to say, that, as far as I know, he does not plead the want of power for non-action. He has just as much power to enforce the law in my case, as in any other case. The only reason I can think of,--and it may be a good one,--for not interfering to execute the law in my behalf, is that he has not been formally applied to for that purpose. That reason will no longer exist, by the time you receive this letter. And if the State authorities turn a deaf ear to my petition, and the Federal blood hounds continue to dog peaceable and innocent citizens, searching houses and making illegal arrests, it is not improbable, that, in a very short space of time, the people will put matters in such a shape, that the State authorities can no longer evade or dodge the responsibility of acting, one way or the other, if they would.
2. As to Judge Paine. Whether he could or could not act legally act in my case, need not now be discussed. He has decided that he could not. There are, then, but two alternatives left him, if the necessity of a new writ of habeas corpus is established. Either to resign and let a Judge be appointed in his place who could act, or permit the Fugitive Slave Act to be established in Wisconsin, and the sovereignty and rights of the State, and the liberties of the people be overthrown.--The despotism of slavery has paralyzed the whole power of the State, and rendered it important to protect the people against the greatest outrage upon their rights, and Judge Paine, by his position, has shut the door of justice against the friends of Liberty, and spread wide the gateway to the inheritance of Freedom, for the whole pack of slave catchers and kidnappers, to enter and take possession.
3. Your closing sentence, friend Smith, staggers me. You say that I am now "out of prison," and while I am out of prison, you wish no change on the bench, and whether the resignation of Paine "will ever again be desirable will depend entirely upon the efforts and success of the Federal Marshals!" Do you mean that until I am caught and locked up again, no interference of the Court is desirable? So I understand you. "Out of prison!" Yes, but hunted by human bloodhounds from town to town, and from neighborhood, as if I was a beast of prey! Obliged to go armed by day, and make death weapons my pillow by night' to sleep in constant watch of enemies, listening, even in my dreams, for the stealthy tread of the kidnapper, with no choice left me but to kill or be killed! To be followed this, day by day, and week by week, here in Wisconsin, whose boast of Freedom has gone out to the ends of the earth, whose Courts and Executive and People have pledged themselves to protect me against the arbitrarily imposed penalties of an infamous and unconstitutional enactment! To have the character of the State thus disgraced, its dignity and honor trampled in the dust, its sovereignty and laws, and the decisions of the highest judicial tribunal, and the declaration of its Chief Magistrate contemned [sic] defied and spit upon by a handful of kidnappers! Was there ever a more shameful spectacle exhibited by the government of a people claiming to be free? You might have concluded your article by saying, that, while I was "out of prison" a hunted fugitive, and the State authorities refuse me the protection of the laws they have sworn to enforce, it matters little who sits on the bench when judgment is turned aside from the needy, or who fills the chair of the Executive powerless to execute the laws! Has the State authorities of Wisconsin been ready to take a tenth part of the responsibility in enforcing the laws in favor of liberty, that the authorities of slaveholding States promptly and cheerfully take in behalf of slavery, slave catching and kidnapping months ago, would have found a resurrectionless slave in this State, and I would not now be the object of daily pursuit by Federal bloodhounds, and a living proof of the helplessness, imbecility and worthlessness of our State government, as a protection against the worst form of oppression. In conclusion, let me suggest two methods by which this civil war, this insurrection by the kidnappers, might be speedily ended:
1. Let the Governor issue his proclamation against these kidnappers, commanding them in the name of the State to cease their warfare upon its sovereignty and laws, and call upon all officers of the peace, throughout the State, to arrest them for their violation of the law, and bring them to punishment. Or,
2. Let the Supreme court issue an attachment for the Federal officers to compel obedience to its decision. There is no more need of a new writ of habeas corpus now, than there would have been five minutes after I was first discharged from imprisonment, on the 3rd day of February, 1855. Justice Paine and Dixon, both, could act, and would be bound to act, in such a case, for it would not be establishing a new law, rule or decree, but merely executing a decree of the Court made in 1855 and reaffirmed in 1860. It would simply be maintaining the authority of the Court, and purging itself of contempt, by enforcing the decrees, and punishing those who defiantly trample them under their feet. What is a habeas corpus worth, if it has to be renewed day by day and year by year, in the same case. Let either of these measures be adopted, and the sovereignty and laws of the State will at once be vindicated. Truly Yours,
S. M. BOOTH.
|INTRODUCTION | MILWAUKEE, AUG 1 | WAUPUN, AUG 1-3 | RIPON, AUG 3-5 | RECAPTURE, AUG 6-OCT 8 | DOCUMENTS|
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