JOHN B. WINSLOW.

sterling honesty and courage to many. The time had now come when he was to demonstrate his abilities and he recog nized the opportunity and grasped it. His whole soul was in the cause; he entered the combat as did the knights of old who fought for the Holy Sepulchre. It was to him the cause of God as well as the cause of freedom. Upon the day following the commitment of Booth to the custody of the mar shal, application was made to Hon. A. D. Smith, one of the Justices of the Supreme Court, for a writ of habeas corpus directed to the marshal. The writ was allowed, the marshal claimed justification under his warrant, but after argument by Mr. Paine and Mr. J. R. Sharpstein on the other side, Mr. Justice Smith discharged the prisoner on the ground that Congress was given no power by the United States Constitution to legislate on the subject, but that the clause in the Constitution providing that fugitive slaves should be given up to the owner was simply a command to the States and to be enforced by the States alone.

This decision was received by the partisans of Booth in all parts of the State with great enthusiasm. The court house meeting was immediately reconvened at Racine, and again passed resolutions. It will be interesting to note their tone, they are as follows:

"Resolved, That we hail with unmingled satisfaction the decision of Judge Smith by which the constitution is vindicated and restored to its original purity;

"Resolved, That Judge Smith's construction is the true and undoubted meaning of the Constitution as left by the hands of the fathers who framed it, that the reasoning by which he arrived at that conclusion is unanswerable and places the Judge in the front rank of constitutional jurists;

"Resolved, That it is "holy light" when compared with the muddy and discrepant opinions of the United States Court in the famous Prigg case, reported in 16th Peters:

*

"Resolved, That with him we sincerely and solemnly believe that

SPECIAL ADDRESS.

the last hope of a free representative and republican government rests upon the state sovereignties and fidelity of state officers to their double allegiance to the state and federal government;

"Resolved, That Judge Smith has manfully and ably fulfilled the trust of double allegiance which the people of Wisconsin committed to him."

The case was immediately taken before the full bench of the Supreme Court by writ of certiorari, and heard at the June term, 1854. The Supreme Bench was then composed of Whiton, Chief Justice, and Smith and Crawford, Associate Justices. Upon this hearing, Mr. Paine again appeared for Booth, and he then met a foeman worthy of his steel, one who like himself was destined in after years to add lustre to that very bench, Edward G. Ryan. Paine's speech has been preserved in pamphlet form, and it was worthy of the occasion and the man. He argued that the fugitive slave law was unconstitutional on three grounds: (1) because Congress had no power to legislate upon the subject at all, being the ground taken by Judge Smith in his opinion; (2) because it provided that a man might be reduced to a state of slavery without a trial by jury, and (3) because it vested judicial power in Court Commissioners contrary to the terms of the Constitution, which provided for the vesting of such power in certain Courts. The Court affirmed the order of Justice Smith discharging Booth from imprisonment, July 19, 1854. The affirmance was unanimous, but the judges differed in the grounds upon which the decision should be based. Chief Justice Whiton admitted that it was finally established by the case of Prigg r. Pennsylvania, 16 Peters, 640, that the United States had power to legislate on the subject of fugitive slaves, but he held that the act was unconstitutional for the reason that it vested judicial powers in Court Commissioners, and because it denied to the fugitive a jury trial. Judge Smith retained his views as to the lack of power in Congress to pass any law on the subject, and concurred with

JOHN B. WINSLOW.

the Chief Justice in his objections to the law; while Justice Crawford dissented from the conclusion of the majority, holding the law to be valid, but agreeing in the result because the commitment did not on its face show that the case was within the law. The legal victory thus won by Byron Paine seemed to be complete. He had met in the highest tribunal of the State one of the greatest men of the profession, and had utterly routed him. The decision of the Court touched and thrilled the popular heart, and the beardless champion of human freedom was unquestionably the hero of the hour. Nor was the enthusiasm over the victory confined to the narrow limits of the State of Wisconsin. The contest had been eagerly watched by leading abolitionists in all parts of the country, and the victory was hailed with delight and the youthful victor was overwhelmed with praise.

Charles Sumner wrote on the 5th of August, 1854:

"WASHINGTON, Aug. 8th, 1854.

I congratulate you upon your magnificent effort which does honor not only to your State but to your country; the argument will live in the history of this controversy. God grant that Wisconsin may not fail to protect her own right and the rights of her citizens in the emergency now before her. To her belongs the lead which Massachusetts should have taken. * *

Wendell Phillips thus congratulated him:

"MILWAUKEE, Nov. 24th.

"Dear Sir: I hoped to have met you last evening to tell you with what unbounded delight I read your argument in the Booth case. You know you have many companions in the pathway of that effort; but I think none excels you in the completeness and force with which the points are presented and some of the views with which you sustain points made by others are strikingly original. I cannot see that you leave anything further to be argued.

But the litigation had not ended; it was in fact but just begun. The discharge from confinement did not stop the prosecution of Booth in the United States Court. In July, 1854, Mr. Booth and one John Rycraft were finally indicted

SPECIAL ADDRESS.

for violation of the fugitive slave law, and were arrested on warrants to answer the indictments. Booth again applied for a writ of habeas corpus to the Supreme Court, but it was unanimously denied, not because there had been any change of view in the minds of the justices on the main question, but because, the United States Court having obtained jurisdiction of the case and the prisoner being held by apparently lawful process issued by such Court, (and not by a Court Commissioner), no other Court should interfere and endeavor to take the decision of the question of jurisdiction out of that Court. This is the familiar rule of comity, by which, when the jurisdiction of a matter has been acquired by one Court, another Court of concurrent jurisdiction will not interfere.

Booth and Rycraft were now tried in the United States Court, found guilty, and sentenced to a short term of imprisonment in the county jail and to pay a fine of $1,000.00. This conviction aroused intense feeling all over the State. Indignation meetings were held in Milwaukee and in many of the smaller places, most of which passed resolutions denouncing the conviction, and some going so far as to demand armed resistance. Again a writ of habeas corpus was issued from the Supreme Court and again the prisoners were discharged, the Court deciding that it could review the question of the jurisdiction of the United States Court upon habeas corpus and could discharge the prisoner, even when the Federal Court had tried the case and passed judgment upon the prisoner. The position was an extreme one and the judges recognized the fact. It meant a direct clash with the Federal Courts, but the judges did not falter. Justice Smith said:

"This Court has no disposition to interfere with the criminal jurisdiction of the District Court of the United States. Unless that Court proceeds within the limits which the constitution and laws of Congress have prescribed, its acts are a nullity; its jurisdiction is always open to question and must affirmatively appear; if jurisdiction be want

JOHN B. WINSLOW.

ing, its process, judgments and decrees are void. Were it otherwise, that Court might proceed to indict, convict and punish for common assault, libel, breaches of the peace, and so forth, imprison our citizens at its own will and pleasure, administer the whole, common law code of offenses and punishments, from whose judgment there could be no appeal and whose prison doors no earthly power could unlock. Such doctrine is monstrous. We have not yet reached the point of sub

mission."

The note of defiance here rings out with unmistakable clearness; it was magnificent, but it was not good law. The issue was too important to rest without final decision by the Court of last resort, and writs of error were sued out of the Supreme Court of the United States by the marshal to review both judgments of the Supreme Court of Wisconsin discharging Mr. Booth. To the first writ issued in October, 1854, return was made without objection, but when the second writ was issued and served in June, 1855, the justices of the Supreme Court directed the clerk to make no return to the writ on the ground that no writ of error could run from the United States Supreme Court to the Supreme Court of a State, and that the act of Congress purporting to authorize such a proceeding was unconsitutional. This was going a step further than before. By the previous action, the Court had only asserted its power to inquire into and decide for itself the question of the jurisdiction of a Federal Court, and the validity of its judgment; by this latter act it asserted in legal effect that its decision was final and supreme and could not be reviewed by any Court on earth. The refusal to return the record in obedience to the writ could not prevent the consideration of the case by the United States Supreme Court, but it did delay such consideration. The Attorney General of the United States (Jeremiah S. Black) had procured a certified copy of the record, and when it finally appeared that no return would be made to the writ, the Court ordered that this copy be filed with the same effect as if returned by the clerk, and the cases were finally reached in