"Resolved, That with him we sincerely and solemnly believe that the last hope of a free representative 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. 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.[1] The affirmance was unanimous, but the judges differed on the ground upon which the decision should be based. Chief Justice Whiton admitted that it was finally established by the case of Prigg v. 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
- ↑ 3 Wis. *49.
