During Wisconsin's first years as a state, its identity - in the minds of both its own citizens and other Americans - was shaped largely by its approach to the concept of freedom. In the 1840s and 1850s many Northerners took a conservative attitude toward slavery: they did not want to see it extended to new states, but they also opposed its destruction where it already existed. Other Northerners, including most Wisconsinites, took a more liberal view that eventually came to be identified with the rising young Republican party: they viewed slavery as a sin and eventual freedom for all black Americans as a positive good.

The 19th century Republican concept of freedom also comprised an ideal of "free labor," which continues to influence American law and politics today. As one prominent historian has explained: "Political antislavery was not merely a negative doctrine, an attack on southern slavery and the society built upon it; it was an affirmation of the superiority of the North - a dynamic, expanding capitalist society, whose achievements and destiny were almost wholly the result of the dignity and opportunities which it offered the average laboring man."¹ Justice Byron Paine, who served on the Wisconsin Supreme Court from 1859 to 1864 and from 1867 to 1871, was perhaps the most eloquent advocate of the Republican ideal in Wisconsin. A study of Paine's life is indispensable to understanding how the ideal took root in Wisconsin and how it evolved during the state's industrial era following the Civil War.

The Abolitionist Crusader (1827-1867)

Byron Paine was born in Ohio in 1827, into a family of transplanted New Englanders. His family had a bent for the law - Paine's father, brother, and uncle were all prominent lawyers - and had strong abolitionist sentiments, which Paine absorbed from early childhood on. In 1847 the family moved to Wisconsin and settled in Milwaukee. Paine studied law with his father and was admitted to the bar in 1854. During his years as a student he became friends with another New Englander, Sherman Booth, who had arrived in Wisconsin in 1848 and had founded the state's leading abolitionist newspaper, the Milwaukee Free Democrat. During Paine's early years of practice he had much free time on his hands; he occupied it in writing articles for the Free Democrat and trying to build an abolitionist political party in Wisconsin.²

In March 1854 Paine was presented a once-in-a-lifetime opportunity to advance both his ideals and his career, and he made the most of it. Pursuant to the federal Fugitive Slave Act of 1850, federal officials arrested Joshua Glover, a slave who had escaped from Missouri, and held him in the Milwaukee County jail for return to his owner. Booth sounded the alarm and quickly organized a protest rally; the crowd broke into the jail and freed Glover, who made his way to Canada and freedom.³ Federal authorities then brought charges against Booth for obstructing enforcement of the act, and Booth retained Paine as his lawyer.

The legal wing of the abolitionist movement had challenged federal fugitive slave laws for many years without success. Even though the laws were deeply unpopular in the North, the U.S. Supreme Court and courts in several Northern states had upheld them.⁴ Paine was the first and only lawyer who successfully challenged the 1850 act. Paine applied to Justice Abram Smith of the Wisconsin Supreme Court for a writ releasing Booth from federal custody and made the traditional arguments asserted by abolitionist attorneys: namely, that the act denied Booth his rights to trial by jury and trial before a judge rather than a commissioner, and that the U.S. Constitution did not provide a mechanism for enforcing fugitive laws.

Paine also added a new argument that Wisconsin as a sovereign state was not obligated to follow decisions of other courts on the issue.⁵ Paine argued that the Constitution was "a mere article of compact between the States, depending for its execution entirely on their integrity and good faith."⁶ To the surprise of many, Smith accepted all of Paine's arguments and declared that the 1850 act, which he characterized as a "wicked and cruel enactment," was unconstitutional. A few weeks later the full Wisconsin Supreme Court upheld Smith by a 2-1 vote.⁷

The Booth decisions brought Paine national fame. He received effusive letters of congratulation from abolitionist leaders such as Charles Sumner and Wendell Phillips. Southerners reacted by criticizing Wisconsin as "one of the youngest of our sisters, who got rotten before she got ripe" and whose "insensibility to shame excites more of our pity than our contempt."⁸ There was an irony in Paine's advocacy of states' rights. The doctrine had been created in the South 20 years earlier to nullify federal laws that benefitted the North. The irony did not go unrecognized in Wisconsin, but by 1854 the Republican concept of freedom had become so deeply ingrained that most Wisconsinites would not tolerate interference with it by the federal government or anyone else. A small group of federalists within the Republican Party objected that the cause of freedom could best be served by changing federal law through the political process rather than by defying it, but from 1854 to 1860 states' rights supporters dominated Wisconsin politics at all levels.⁹ States' rights sentiment was so deep that after the U.S. Supreme Court, speaking through Chief Justice Roger Taney, reversed the Booth decision in 1859, the Wisconsin Supreme Court refused to accept or file Taney's decision.¹⁰

Paine's rise after the Booth decisions was meteoric. He was chosen Milwaukee County judge in 1856 and three years later, at the age of 32, he was elected to the Wisconsin Supreme Court. As the Civil War progressed, Paine felt increasingly restless and guilty for remaining in Madison in safety while thousands of Union soldiers were dying for the cause of freedom. In late 1864 he resigned from the court and accepted a commission as a lieutenant colonel in the newly formed 43rd Wisconsin regiment. Paine spent most of his military service performing support duties in Tennessee; his regiment participated only in a few minor skirmishes before the war's end.¹¹ He was discharged in mid-1865 and returned to Milwaukee, where he resumed the practice of law. Again, Paine's time in private practice was brief: In 1867 his successor on the court resigned and Gov. Lucius Fairchild reappointed Paine to his old seat.

Before rejoining the court, Paine performed one last service for the cause of civil rights: he helped black Wisconsinites win the right to vote. His method was unusual. The 1848 Wisconsin Constitution authorized the Legislature to allow black suffrage if the law was approved by "a majority of all the votes cast" at the next election.¹² The 1849 Legislature passed a suffrage law and voters approved the law by a vote of 5,265 to 4,075, but less than half of all voters in the election cast ballots on the suffrage issue, so it was assumed the measure had failed. In 1866 Paine and Ezekiel Gillespie, a leader of Milwaukee's black community, brought a test case after Gillespie was turned away from the polls. Paine argued that suffrage was essential to make blacks' new freedom meaningful; he also argued that the Wisconsin Constitution should be interpreted to mean that a suffrage law only had to be approved by a majority of votes on the suffrage issue, not all votes cast on any issue at the same election. To almost everyone's surprise, the court agreed with Paine and held that because the 1849 law had received a majority vote of approval, Wisconsin blacks had had the right to vote since 1849.¹³

Defender of the States' Rights Faith (1859-1871)

The Civil War transformed the relationship between the federal government and the states. Most Americans came to think of the United States for the first time as a distinct and supreme entity, not merely a collection of states. Accordingly, states' rights sentiment receded rapidly in Wisconsin after 1861.¹⁴ But Paine continued to promote states' rights after the war and had some success in persuading his colleagues on the court to join him.

In the 1850s and 1860s Congress enacted a series of removal laws that greatly expanded federal court jurisdiction, and a dispute arose in Wisconsin as to whether state courts were bound to honor such laws. Paine and Justice Orasmus Cole held one such law invalid during Paine's first period of service on the court; Chief Justice Luther Dixon, who was more of a federalist than either of his colleagues, dissented.¹⁵ This voting pattern continued after Paine's return to the court. In Whiton v. Chicago & Northwestern R. Co. (1870)¹⁶ Paine and Cole refused to enforce a statute that allowed state court plaintiffs to remove their cases to federal court, and in In re Tarble (1870)¹⁷ they held that state officials had the power to enforce a state writ of habeas corpus against federal officials. Dixon dissented in both cases.

In the late 1860s, Cole showed some signs of softening: He commented in one case that the war had eliminated the hope that states would be treated as coequals of the federal government, and he concluded that continuing the crusade for states' rights "would be of no earthly advantage, that I can see, to any person or any principle."¹⁸ But Paine defended states' rights to the end of his life, despite charges that he was siding with the South on the issue. "Secession," Paine protested, "is revolutionary; states' rights not. ... [I]t is ... a question of the gravest delicacy and importance ... whether the states, the original sovereignties, hold their reserved powers wholly subject to the judgment of the federal court."¹⁹ The court's Whiton and Tarble decisions were appealed to the U.S. Supreme Court. Paine died suddenly of erysipelas (a form of pneumonia) in 1871 while the appeals were pending, and after his death the high Court rejected his position, affirming federal supremacy in strong terms.²⁰

Paine and the Evolving Concept of Free Labor (1859-1871)

After the Civil War, the Republican notion of freedom took an increasingly economic slant. With the slaves freed, the question of how freedom would operate in an increasingly industrial society took center stage. The core economic premises of the free labor doctrine were that prosperity would always follow from hard work and that "the major responsibility for a person's success or failure rested with himself, not society."²¹ Before the war these premises were expressed as a belief that free labor was always more productive than slave labor. Many free labor advocates inside and outside legal circles were reluctant to address the issue of whether the premises remained viable in a society increasingly dominated by corporations and other large institutions.²² Paine began to address this issue during his second term of service on the court, primarily in the context of railroad cases.

The first railroad in Wisconsin, a line from Milwaukee to Waukesha, was completed in 1851. During the next 20 years, railroads became one of the leading pillars of Wisconsin's economy. Many Wisconsin cities and towns gave extensive financial aid to railroads, usually in the form of bonds or stock purchases, in order to obtain local train service. Following a depression in 1857, many railroads became insolvent, leaving these municipalities crippled by debt. Some taxpayers tried to escape liability by arguing that the municipalities had exceeded their constitutional authority, and a movement arose to limit municipal power to subsidize railroads.²³ In 1859 Paine and his colleagues rebuffed this movement by holding that the Wisconsin Constitution's prohibition of state financing of internal improvements did not apply to municipalities.²⁴

Ten years later, after Wisconsin had gone through a wave of railroad bankruptcies and mortgage foreclosures, Dixon and Cole made a belated attempt to limit municipal subsidies. In Whiting v. Sheboygan & Fond du Lac R. Co. (1870), they drew a strained distinction between public purposes that were eligible for subsidy and those that were not: They concluded that only corporations directly owned or controlled by the government were eligible for direct aid. Corporations such as railroads that were merely "under public regulation as to tolls" were eligible for indirect aid such as municipal stock purchases but not for direct grants.²⁵ "Thus far shalt thou go," Dixon said to the railroads, "and no further."²⁶

Paine delivered a dissent in which he sharply criticized Dixon's reasoning and delivered a paean to railroads as the highest fruits of free labor. He praised railroads as "the most marvelous invention of modern times," which have "done more to develop the wealth and resources, to stimulate the industry [and] reward the labor ... of the country" than any other cause. How, asked Paine, could the majority say railroads were not clothed with a public interest simply because, "in executing the great public work, the state has made use of the agency of a private corporation, and left to it the comparatively petty and unimportant profits to be derived from the actual operation of the road!"²⁷ Paine did not prevail in Wisconsin, but his view reflected the dominant sentiment of the country: Several years later, the U.S. Supreme Court explicitly criticized Dixon and Cole's decision and made clear that Wisconsin federal courts were not to follow it.²⁸

Paine also defended railroads in the context of tort law. In Kellogg v. Chicago & Northwestern R. Co. (1870), the court considered whether railroads should be held liable for fires caused by sparks from steam locomotives.²⁹ The issue was critical: such fires were common; effective spark suppression devices would not be developed until the end of the 19th century; liability would be expensive for railroads; and courts in other states were divided on the issue.³⁰ Dixon and Cole relied on the pre-industrial legal doctrine that a landowner has an absolute right to use his property as he sees fit. They held that landowners' failure to clear weeds and stubble from property adjoining a railroad did not constitute contributory negligence, which under the negligence rules then in effect would have completely barred landowners from recovering damages. Paine dissented. He candidly discussed the economic impact of railroad fire cases, argued that a balance should be struck between landowners and railroads, and criticized the majority's holding as "disproportionately burdensome and oppressive" for railroads.³¹

In Kellogg, Dixon and Cole also refused to apply the narrow rule of proximate cause that New York and many other states had adopted, namely that railroads were liable only for damage in the immediate area where sparks landed and not for any damage caused by the spread of fire.³² Instead, Dixon formulated a broad proximate cause standard, holding that railroads were liable for all damage that was reasonably foreseeable and resulted from a "direct and continuous" chain of events.³³ Paine also dissented on this point. He argued that in cases where intervening factors outside the railroad's control (such as wind) spread the fire, railroads should not be held liable for damage caused by the fire's spread.³⁴ Paine's position as to landowner liability eventually prevailed in Wisconsin,³⁵ but his position as to proximate cause did not: Dixon's rule remained the law of the state for almost 60 years.³⁶

Conclusion

Like the English poet for whom he was named, Byron Paine was a blend of romanticism and manliness. The blend proved irresistible to Wisconsinites, including many of Paine's political adversaries. Edward Ryan, who opposed Paine in the Booth case and in politics generally, stated at Paine's death that: "I thought him a fanatic. He probably thought me one. Possibly we both were. But in all that antagonism and excitement ... I then conceived an estimate of the beauty of his character, and of his great professional ability, which has never since changed."³⁷ Coming from Ryan, who was known for his harsh criticism of people he did not respect, this was an extraordinary accolade. Ryan identified another key element of Paine's character: "He was not a man of genius; but he had a force of character, a firmness of will, a strength of conviction, which made his high ability of more value in the world than genius often is."³⁸

Paine's success, then, lay in his personal charm; his deep belief in the righteousness of both the racial and economic aspects of free labor doctrine; and in the fact that he came to the fore at the precise moment Wisconsinites needed someone to articulate their free labor ideals both to themselves and to the nation. If Paine had not been available, Wisconsin still would have been in the forefront of resistance to fugitive slave laws and the postwar debate over the role that the free labor doctrine should play in shaping Wisconsin law still would have taken place. But Paine was in the right place at the right time and as a result, despite the shortness of his tenure on the court and the tragic shortness of his life, he made a large and permanent mark on Wisconsin law. For his role in the Booth and Gillespie cases he must also be accounted the first great figure in the history of Wisconsin civil rights.

Endnotes

¹ Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War 11 (New York, 1970).

² John B. Winslow, The Story of A Great Court 74, 158 (Chicago, 1912); 27 Wis. 23, 59-60 (1871) (memorial to Paine).

³ 9 U.S. Stats. at Large 60 (1850); see Richard N. Current, The History of Wisconsin: The Civil War Era, 1848-1873, at 74-78, 208 (Madison, 1976).

⁴ See Robert M. Cover, Justice Accused 8-82 (New Haven, 1975); Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); Jones v. Van Zandt, 46 U.S. (5 How.) 215 (1847); Sims' Case, 61 Mass. 285 (1851); Commonwealth ex rel. Wright v. Deacon, 5 Serg. & Rawle 63 (Pa. 1819).

⁵ Paine's arguments are reprinted in Paul Finkleman, ed., Slavery, Race and the American Legal System 347 (New York, 1988).

⁶ See id. at 351-53.

⁷ In re Booth, 3 Wis. 1 (1854) (Smith's decision); 3 Wis. 54 (1854) (full court's decision).

⁸ Sen. Robert Toombs of Georgia, in Congressional Globe, at 89 (36th Cong., 1st Sess., Jan. 24, 1860).

⁹ Potosi Republican editorial, quoted in the Milwaukee Sentinel, Feb. 8, 1855; Joseph A. Ranney, Suffering the Agonies of Their Righteousness: The Rise and Fall of the States' Rights Movement in Wisconsin, 1854-1861, 75 Wis. Mag. Hist. 83 (Winter, 1991-92).

¹⁰ Joseph A. Ranney, Edward G. Ryan: "A World in Which Nothing is Perfect," 75 Wis. Law. 18 (Sept. 2002).

¹¹ Winslow, supra note 2, at 233-34; E.B. Quiner, The Military History of Wisconsin: A Record of the Civil and Military Patriotism of the State in the War for the Union 859-60 (Chicago, 1866).

¹² Wis. Const. (1848) Art. III, § 4.

¹³ Gillespie v. Palmer, 20 Wis. 544, 555 (1866).

¹⁴ See Ranney, supra note 9, at 111-14; Garry Wills, Lincoln at Gettysburg 174-75 (New York, 1992).

¹⁵ Moseley v. Chamberlain, 18 Wis. 700 (1861).

¹⁶ 25 Wis. 524 (1870), rev'd, 80 U.S. (13 Wall.) 269 (1872).

¹⁷ 25 Wis. 390 (1870), rev'd, 80 U.S. (13 Wall.) 397 (1872).

¹⁸ Knorr v. Home Ins. Co. of New York, 25 Wis. 143, 149 (1869).

¹⁹ Id. at 152-54.

²⁰ Whiton, 80 U.S. (13 Wall.) 269 (1872); Tarble, 80 U.S. (13 Wall.) 397 (1872).

²¹ Foner, supra note 1, at 11-15, 261-62.

²² Id. at 261-62; Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 99 (New York, 1977); J. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States 18-21 (Madison, 1956).

²³ See Robert S. Hunt, Law and Locomotives 85 (Madison, 1958).

²⁴ Clark v. Janesville, 10 Wis. 135 (1859); Bushnell v. Beloit, 10 Wis. 195 (1859).

²⁵ 25 Wis. at 196-97.

²⁶ Id. at 210.

²⁷ Id. at 219-20.

²⁸ Olcott v. Supervisors of Fond du Lac County, 83 U.S. (16 Wall.) 678, 695-97 (1873).

²⁹ 26 Wis. 223 (1870).

³⁰ Lawrence M. Friedman, A History of American Law 410-12 (1973).

³¹ 26 Wis. at 243-47.

³² See Ryan v. New York Central R. Co., 35 N.Y. 210 (1866); Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 187-89 (Madison, 1999).

³³ 26 Wis. at 236-37.

³⁴ 26 Wis. at 249.

³⁵ See Murphy v. Chicago & Northwestern R. Co., 45 Wis. 222, 235 (1878).

³⁶ See Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931); Ranney, supra note 32, at 429-32.

³⁷ 27 Wis. at 33.

³⁸ Id. at 34.