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Articles on Wisconsin legal history
Byron Paine, Wisconsin's first civil rights leader
Written by Joseph A. Ranney, Attorney at Law
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Byron Paine of Milwaukee was perhaps the most dramatic figure ever to sit on the Wisconsin Supreme Court. He was the first great hero of the civil rights movement in Wisconsin.
Paine was born in 1827 into a family which fervently favored immediate abolition of slavery, a very controversial position in those days. As a young lawyer Paine became an ally of Sherman Booth, Wisconsin's leading abolitionist. In 1854 federal authorities arrested Joshua Glover, an escaped slave, and held him for return to his master as required by the federal fugitive slave act. Booth then raised and led a mob which freed Glover from the Racine jail and helped him escape to Canada and freedom. Federal marshals arrested Booth for violating federal fugitive slave laws and Booth hired Paine as his lawyer.
Paine knew he had a once in a lifetime chance to serve his cause and win fame at the same time, and he made the most of it. Paine made a stirring argument to Justice Abram Smith of the Wisconsin Supreme Court to set Booth free. He argued that even though other courts including the U.S. Supreme Court had upheld federal fugitive slave laws, under the doctrine of states rights (which, ironically, was used mostly in the southern states to defend slavery) Wisconsin need not follow those laws. In a decision that sent shock waves throughout the United States, Smith held the federal fugitive slave law was unconstitutional and set Booth free.
Paine became the hero of the hour, winning praise from such abolitionist leaders as Senator Charles Sumner of Massachusetts and Horace Greeley, the leading newspaper editor of his day. Paine's arguments inspired a states rights movement throughout Wisconsin, which engaged in a running battle with federal authorities over fugitive slave laws up to the eve of the Civil War. States rights advocates argued that Wisconsin should defy all federal laws it did not like, and most Wisconsinites agreed.
In 1859 Wisconsin voters rewarded Paine by electing him to the Supreme Court. Ironically he replaced Justice Smith, whose decision had catapulted him to fame. In 1864, convinced he could do more for the cause of freedom on the battlefield than in the courtroom, Paine resigned. He was promptly given command of the newly formed 43rd Wisconsin Regiment, which saw service under General William T. Sherman in Georgia and the Carolinas.
After the war Paine returned to Wisconsin and practiced law. He quickly found another opportunity to further civil rights: in 1866 he persuaded the Supreme Court to give African-Americans the right to vote, making Wisconsin one of the first states to do so. In 1867 Paine was once again elected to the Supreme Court.
Even though the Civil War had established the supremacy of the federal government over the states, Justice Paine continued to argue that Wisconsin was not bound by federal laws. He had occasional successes until the U.S. Supreme Court finally made it clear to Wisconsin in the mid-1870s that federal laws applied to Wisconsin whether the state liked them or not.
Paine was a radical in other areas of the law as well. In the 1860s, as railroads were built throughout the state, an increasing number of people were injured in railroad accidents and under the prevailing laws it was very difficult for them to win compensation for their injuries. Paine worked hard to persuade his colleagues on the court to make it easier for accident victims to recover.
At the same time, however, Paine recognized railroads were vitally important to Wisconsin's future. In the late 1860s they came under heavy attack. Many Wisconsin cities had gone deeply into debt to support local railroads which later went bankrupt. Taxpayers asked the Supreme Court to limit the cities' power to help railroads in the future, and the court did so.
Paine disagreed with his colleagues. He argued that no legal limits should be put on any community which wanted to help railroads, and he rhapsodized about the future which railroads offered:
Railroads have more than realized the fabulous conception of the eastern imagination which picture the genii as transporting inhabited palaces through the air. They take a train of inhabited palaces from the Atlantic coast, and with marvellous swiftness deposit it on the shores that are washed by the Pacific seas.
Paine died young after contracting erisypelas, a pneumonia-like disease. The tributes at his death were unusually heartfelt, even from Paine's political opponents who felt he "did not appreciate that state rights as he advocated it, though not revolution, was necessarily legal and governmental chaos." Right or wrong, Paine succeeded in permanently imprinting his vision of racial equality and economic development on Wisconsin.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.