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Odd Wisconsin Archive

Paines in the Neck for Powers-That- Be


Before the Civil War, Wisconsin's politics generally mirrored the nation's. Democrats rode a wave of popularity that began with Andrew Jackson, and as tensions heightened nationally in the 1850s over slavery and states rights, most residents of Wisconsin were too busy trying to create homesteads or fortunes to care very much. But in the mid-1850s a small minority of utopian visionaries, German exiles, and radical Republicans were eager to upset this status quo. Among them were two attorneys named Paine, the spiritual (though not biological) descendants of 18th-century revolutionary Thomas Paine.

Byron Paine (1827-1871) came to Milwaukee from Ohio in 1847. Admitted to the bar in 1849, he became law partner of exiled German revolutionary Carl Schurz. In 1854, when abolitionist editor Sherman Booth was prosecuted for raising a mob that sprung fugitive slave Joshua Glover from jail, Paine defended Booth all the way to the Wisconsin Supreme Court. The court declared the federal Fugitive Slave Law unconstitutional in Wisconsin, and freed Booth. Paine's argument before them was widely circulated and brought him letters of praise from abolitionist leaders Wendell Phillips and Charles Sumner of Boston. After leading a Wisconsin regiment during the Civil War, Paine returned to Milwaukee and entered private practice again, this time with his namesake Halbert E. Paine (1826-1905).

H. E. Paine was no relation, though the two men shared similarly radical Republican views and were both from Ohio. H. E. Paine had come to Wisconsin in 1857, and was promptly elected to Congress from Milwaukee. When the war broke out he immediately enlisted and served as colonel of the 4th Infantry. While in Louisiana in the summer of 1862, he defied direct orders of his commander by refusing to return fugitive slaves to their owners, prefering to be stripped of his command than to betray his conscience. A year later he lost a leg during the siege of Vicksburg, and returned to Milwaukee to resume the practice of law.

Late in 1865 the two Paines were offered the case of Ezekiel Gillespie, a leader of Milwaukee's black community who had been prohibited from voting. Byron Paine carried the case to the Wisconsin Supreme Court where in early 1866 the justices found that, under the Constitution of 1848 and a referendum held in 1849, African Americans were indeed entitled to vote in Wisconsin.

Soon after, Byron Paine was chosen to serve for a second time on the Wisconsin Supreme Court, but he died at age 44 in the winter of 1870-71 at his home in Monona. H. E. Payne was re-elected to Congress, and spent most of the remainder of his life in private legal practice in Washington, D.C. There he wrote a lengthy memoir of his Civil War experiences, still unpublished, that was discovered in a trash bin in the 1980s and is now in the Center for Southeast Louisiana Studies

Both Paines therefore left Wisconsin soon after the Civil War. But in the turbulent 1850s, the two were a powerful force for radical reform, using the power of the law and the military in support of such dangerous ideas as freedom from slavery and the right of all people to vote.
:: Posted in Odd Lives on July 21, 2005

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