| Book Reviews |

Right Star Rising: A New Politics, concerns? Here we can help Kalman or “new”) could never warm up to 1974–1980 by providing some context. Theodore anyone on that family tree. White’s classic book, The Making of the Further, the draconian response by By Laura Kalman President, 1960, tells us that Nelson the New York State Police to the riot W.W. Norton & Co., New York, NY, 2010. 473 Rockefeller pressed the Republican at Attica Prison in 1971—a response pages, $27.95. Party that year at its convention to that left 39 people dead and for which accept platform language supporting Governor Rockefeller was, of course, the civil rights movement—in particu- responsible—created in some quarters Re v i e w e d b y Ch r i s t o p h e r Fa i l l e lar, the blacks who were conducting an image of Rockefeller as a gendarme sit-down strikes at the lunch coun- recklessly or sadistically twirling his Laura Kalman’s Right Star Rising is a ters of pharmacies in Southern cities. nightstick while strutting rather than narrative political history of the period Rockefeller prevailed on this point. walking his beat. 1974 to 1980, a period that began with The platform as approved spoke of the resignation of Richard Nixon and “the constitutional right to peaceable Gerald Ford ended with the election of Ronald assembly to protest discrimination by The back-story supplied, we now Reagan. How did we get from one private business establishments” and rejoin Kalman. She tells us that the to the other? Kalman works from the praised “the action of the businessmen Rockefeller nomination inflamed the premise that a movement in the other who have abandoned discriminatory right, especially that portion of it that direction might reasonably have been practices in retail establishments.” had taken to calling itself the “new expected: Nixon’s fall might have set A cynic could see that as a ploy to right” at this time. The board of direc- off a leftward shift. Because it plainly exploit the well-known sectional divide tors of the American Conservative did not, this book begins in wonder. of the opposition party. But White is Union met on Sept. 22, 1974, and dis- Kalman’s answer to that question not cynical about this. Indeed, he gets cussed the nomination. Kalman, refer- is found in the concise statement she a bit misty-eyed about Rockefeller on ring to the minutes of this meeting, provides in the epilogue: the left and this point, writing that he “withdrew says that the participants decided “to the center were outmaneuvered. “It from the field of battle with honor, in discredit Rocky and show the rank and would be … obtuse to deny that dur- full control of his own state political file Republicans that he and Ford are ing the middle and late 1970s conser- system and delegates, and with the not conservatives.” She also quotes the vatives more effectively used conflicts knowledge that in the platform there direct-mail maven Richard Viguerie, over race, rights, religion, taxes, the were wordings … that would permit who referred to Rockefeller as “high- market, the family, national security, Richard M. Nixon to campaign on a flying [and] wild-spending.” the Middle East, détente, and American forward Republican position if he so What did Ford do about the tempest captivity and decline than [did] moder- chose. But it was up to Mr. Nixon.” raised on his right by this selection? He ates or liberals.” Four years later, Nelson Rockefeller caved in. At the end of October 1975, In the story she tells on the way to was the most determined intrapar- he informed the public that Rockefeller that conclusion, the fascinating figure ty opponent of the nomination of would not be his running mate in of Nelson Rockefeller, Gerald Ford’s Barry Goldwater, whom he called an the upcoming election. He presum- vice president, plays a large part. “extremist.” It was, accordingly, as ably meant to mollify those whom Indeed, he plays a part large enough much against Rockefeller as against any Rockefeller had annoyed. Indeed, he to deserve a back-story, which Kalman other person that Goldwater directed later expressed regret about this deci- neglects to bestow. his famous words at the Republican sion, calling it “one of the few cow- Party convention in 1964: “Extremism ardly things I did in my life.” Nelson Rockefeller in the defense of liberty is no vice. ... In fact, it was part of a hastily It was in the second week of Gerald [M]oderation in the pursuit of justice is arranged reshuffling. Ford also pushed Ford’s presidency, in August 1974, that no virtue.” Secretary of Defense James Schlesinger Ford nominated Nelson Rockefeller So, if Goldwater represented the out of the cabinet and replaced him as his vice president. Kalman tells us “right,” circa 1964, Rockefeller was not with Donald Rumsfeld. Schlesinger little about Rockefeller’s life before there. On the other hand, no sensible had been skeptical of détente with the that moment, but she does describe observer will see Rockefeller as a rag- Soviet Union, and this had put him him as a “charismatic politician,” and ing leftist. Indeed, his prominence at odds with Secretary of State Henry she mentions the concern on the in national politics would have been Kissinger (a longtime Rockefeller asso- part of members of Ford’s staff that unthinkable but for the wealth accu- ciate). The conservative publication Rockefeller would “overshadow the mulated by his grandfather, John D. Human Events said that the effect president.” Ford had no such concerns, Rockefeller, the paradigm of a perni- of the appointment of the unknown because he was “secure in himself.” cious, petroleum-engorged, proletari- Rumsfeld “has only fueled the concern Why should anyone have had such an-oppressing plutocrat. The left (“old” of those who fear that ... Kissinger

50 | The Federal Lawyer | January 2011 can now pursue his détente policies I can tell, vitiated by that regret, and I dom for all, yet allowed human bond- unchecked.” recommend this book for all of those age. This was what compromise had So Ford caved in on Rockefeller, (like myself) who were young and wrought for the young nation, and to chose Bob Dole as his running mate, foolish in the period she describes. I some leaders in the late 1850s—one and found that the cave-in achieved graduated from high school around the in particular—it was clear that the nothing. Ronald Reagan announced time that Ford was edging Reagan out time had come for the question to be his own campaign for the Republican for the 1976 nomination and Jimmy decided, rather than passed to the next nomination for the presidency soon Carter was triumphing over a much generation yet again. Would the nation thereafter, and the people who had wider field, and one naturally tends to be free everywhere, or would slavery been unhappy with Ford with respect regard the events of that time in one’s exist everywhere? To some, such as to Rockefeller were still unhappy with life as pivotal, epochal, and so forth. Abraham Lincoln, there was no middle Ford, now with respect to Rumsfeld So my own bias inclines me to endorse ground. and a hundred other matters, and they this book. Those who share the one To others, however—most notably rallied around the new hope from will enjoy the other. TFL Henry Clay—there was yet room for Hollywood. compromise on this pressing issue in Once, the phrase “moder- Christopher Faille, a member of the order to avoid conflict. In At the Edge ate Republican” meant … Nelson Connecticut bar since 1982, writes on of the Precipice: Henry Clay and the Rockefeller. Whether one admired his a variety of financial issues, and is the Compromise that Saved the Union, policies as governor of New York co-author, with David O’Connor, of a Robert Remini, who has written exten- or not (and I said something unflat- user-friendly guide to Basic Economic sively on the pre-Civil War era, ven- tering about one of those policies in Principles (2000). tures into the time period again to my review of Confidence Game in examine the Compromise of 1850, the August 2010 issue of The Federal in which the Northern and Southern Lawyer), Rockefeller did offer a prin- At the Edge of the Precipice: states came to an agreement on the cipled position that was neither left Henry Clay and the Compromise admission to the Union of several new nor right in any stereotypical sense. that Saved the Union western territories and the status of But, after he had been, essentially, slavery in them. Unfortunately, this By Robert V. Remini dismissed in October 1975, “moder- informative but frustratingly dry work ate Republican” came to mean Gerald Basic Book, New York, NY, 2010. 200 pages, will not likely add to its author’s formi- Ford: a wishy-washy desire to seem $24.00. dable and well-earned reputation. moderate, as long as that stance didn’t Remini’s topic is interesting enough. upset the right too much. “Moderate Most Americans are taught at a young Re v i e w e d b y Na t h a n Br o o k s Republican” has meant roughly that age how the “Great Triumvirate” of ever since, which is why there are so Henry Clay, Daniel Webster, and John few samples of the species left. It is often said that America is a Calhoun kept together a fractious nation born of compromises, with our nation through a series of well-crafted Much Else Constitution itself the result of high- and difficult compromises in the first Right Star Rising contains a great stakes horse-trading among the states half of the 19th century. By 1850, how- deal more, notably a fine discussion that ratified it, particularly on the issue ever, the three giants were fading into of the strains that arguments over of slavery. But history has shown that the background, while men such as “affirmative action” or “quota systems” compromise can lead to the appease- William Seward and Stephen Douglas placed upon the Democratic Party’s ment of unjust interests, and, in the were ascending. coalition and on any possibility of a ensuing decades, the compromises Against the backdrop of changing national move leftward. “Once Jews, on slavery in the Constitution led to congressional leadership as the cen- African Americans, and workers had further compromises on slavery and tury’s midpoint approached, the issue viewed each other as fellow outsiders eventually to the Civil War. of slavery once again threatened to and had worked together for equal- Even before America was born, pull the nation apart. Manifest destiny ity and social justice,” Kalman writes. Colonial leaders established a firm and victory in the Mexican War had “Their alliance had hit rocky spots tradition of yielding to the slave- brought expansive new territories into before, but disagreements over affirma- holding interests in order to pre- the American fold, and the nation’s tive action threatened to destroy it” by serve the Union. Thomas Jefferson’s leaders had to determine in which of the time the Supreme Court prepared original draft of the Declaration of these territories the South’s “peculiar to hear the Bakke case in 1977. Independence, for example, was sig- institution” would be allowed to take Kalman is straightforward in nificantly edited to remove forceful root. Henry Clay had only recently acknowledging that she is an old-fash- language condemning slavery. This returned to the Senate after a six-year ioned New Deal liberal herself, and tradition continued through the early absence that culminated in a failed she regrets the broad developments 1800s to the days before the Civil War. presidential bid in 1848. As Remini of the middle and late 1970s that she The result was a “house divided”—a chronicles. Her analysis is not, so far as nation that espoused liberty and free- reviews continued on page 52

January 2011 | The Federal Lawyer | 51 reviews continued from page 51

recounts, compromise was decidedly Island after the defeat of his omnibus the same leaders and enjoyed this not in the air as Clay took office, with strategy. same advantage a decade earlier? the Whigs in the midst of a steady In Clay’s absence during this time of Remini ends At the Edge of the decline and the Southern states prepar- crisis, Stephen Douglas picked up the Precipice with a galling remark. He ing to gather in Nashville for a conven- pieces of the compromise and pushed surveys the carnage that was the Civil tion of their own. each through separately. As Remini War and laments, “If only Henry Clay Clay went to work immediately, concludes about his protagonist, “And had been alive,” suggesting that further and legislative procedure buffs will when the omnibus failed, Clay walked compromise would have been benefi- appreciate the attention that Remini away. … He left the Senate to go cial. But must we forget that the Civil (who recently retired as the historian sunbathing in Rhode Island. He aban- War, for all its horror, ended slavery in of the U.S. House of Representatives) doned his post—which is understand- this country? Are we really to say that gives to Clay’s legislative strategy in able given his shattered health and further compromise with the Southern piecing together a compromise. The pride—and left it to Stephen Douglas states would have been more favor- crisis in 1850 involved several differ- to repair the broken omnibus and able than ending the forced bondage ent territories—including Texas, New achieve the victory that spared the of four million human beings? This Mexico, and California—and many Union possible civil war.” seems akin to reviewing the horrors of in Congress wanted to address the Another major failing of At the World War II and exclaiming, “If only question of slavery in each of these Edge of the Precipice is its failure to Chamberlain had still been prime min- territories separately. Clay, however, convince the reader of its claim that ister.” Compromise has its place, but so initially believed that these questions the Compromise of 1850 temporarily does backbone. TFL were all interconnected and that a true saved the Union by buying the North compromise (as well as national sta- more time. In his epilogue, Remini Nathan Brooks is an assistant district bility) could be achieved only if they explains, “Had secession occurred in attorney in North Carolina and a mem- were addressed together. That way, 1850, the South unquestionably would ber of the editorial board of The Federal for example, a party who gave ground have made good its independence.” Lawyer. on the issue of slavery in Texas could Other commentators too, including the be offered a victory with respect to late Senator Robert Byrd and the afore- The Fiery Trial: Abraham Lincoln California in return. mentioned Robert Caro, have made the As Remini notes, it was in a debate same point, but none of the three— and American Slavery over Clay’s determination to consid- Remini, Byrd, or Caro—has substanti- By Eric Foner er the divisive issues together that ated it with evidence. W.W. Norton and Co., New York, NY, 2010. 426 the term “omnibus” was first used Remini does argue that, in the pages, $29.95. with respect to broad-ranging leg- 1850s, the North possessed neither the islative vehicles. Unfortunately, such industrial might nor the great states- interesting observations are few and man it would need (and find in the Re v i e w e d b y He n r y Co h e n far between in this book, as Remini 1860s) to defeat the South. The major does not draw nearly enough on his problem with this argument is that it Until late in the Civil War, Abraham literary talents in recounting the seem- ignores one of the primary reasons that Lincoln favored only the gradual eman- ingly endless procession of legislative the Compromise of 1850 succeeded: At cipation of the slaves. He also favored maneuvering. This is a major failing that time, most of the Southern states the voluntary colonization of African- of the book. In order to succeed in were still firmly committed to remain- Americans in Central America or else- writing about the past, authors must ing in the Union. As Remini notes, where, as well as compensating slave exhibit both historical and literary when the Southern states gathered for owners whose slaves were freed. As heft, because skilled writing can turn a their convention in Nashville in 1850 Eric Foner observes in The Fiery Trial, methodical recitation of the facts into a (when the success of the compromise “No one proposed to compensate thrilling lesson from the past. On this was still in doubt), they would not bow slaves for their years of unrequited point, while reading Remini’s book, I to the minority wing that advocated toil.” In April 1862, when Lincoln could not help but think of how Robert secession. Viewed in this light, it was signed the bill that abolished slavery Caro brought legislative wrangling to not the Compromise of 1850 that saved in the District of Columbia, “he noted life in Master of the Senate, his book the Union, but rather the commitment with pleasure,” Foner writes, “that the about Lyndon Johnson, and how far to the Union that saved the compro- law respected the principle of monetary from this admittedly difficult target mise. Moreover, given that a primary compensation for slaveholders.” In his Remini drifts. Remini’s writing limps to reason for early Southern success in annual message to Congress on Dec. 1, the finish line as congressional leaders the Civil War was the unique superior- 1862—one month before he issued the approach the denouement of the 1850 ity of Southern military leadership, can Emancipation Proclamation—Lincoln crisis, by which time Clay, Remini’s we “unquestionably” say, as Remini asked for constitutional amendments supposed hero, had retreated to Rhode does, that the South would have had authorizing Congress to appropriate

52 | The Federal Lawyer | January 2011 funds for colonization, to authorize expansion into the territories. In 1854, ally or intellectually must have been so payment to states that provided for in his speech in Peoria, Ill., Lincoln unthinkable to Lincoln’s white listeners emancipation by the year 1900, and said that he was “arguing against the in 1858 that they probably did not per- to compensate loyal owners of slaves extension of a bad thing, which where ceive that Lincoln had implied it. who gained freedom as a result of it already exists, we must of necessity, As President, Lincoln believed that the war. Even after the Emancipation manage as we best can.” In 1861, in he could not win the Civil War with- Proclamation, Foner writes, Lincoln his first inaugural address, he tried to out the support of the border states— “would continue to speak on occasion reassure the South that “I have no pur- Delaware, Kentucky, Maryland, and of gradual abolition, compensation pose, directly or indirectly, to interfere Missouri—which were slave states. If to slave owners, and apprenticeship with the institution of slavery in the it appeared that the North was fighting as a halfway house on the road to States where it exists. I believe I have the Civil War to abolish slavery rather freedom.” It was only as the Civil War no lawful right to do so, and I have no than to save the Union, then, Lincoln neared its end, as thousands of slaves inclination to do so.” feared, the border states would join freed themselves and served with dis- Lincoln particularly respected the the Confederacy and the war would be tinction in the Union army, and as Constitution’s separation of powers. lost. And, of course, if Lincoln could the 13th Amendment worked its way During the Civil War, Lincoln over- not win the war, then he could not free through Congress, that Lincoln aban- turned the emancipation order of Gen. the slaves. In stating that his goal was doned these positions. John C. Frémont, who had declared solely to save the Union, Lincoln was a Foner does not criticize Lincoln martial law in Missouri and purported savvy politician who was more realistic for not being an abolitionist sooner. to free the slaves in that state. Lincoln than the abolitionists. Commenting on Nor does he praise him for adopting said that a general could seize prop- his overturning Frémont’s emancipa- the more conservative strategy that erty, including slaves, used for mili- tion order, Lincoln wrote, “I think to eventually freed the slaves. Foner just tary purposes, but that it was up to lose Kentucky is nearly the same as gives us the facts and lets us make the Congress to “fix their permanent future to lose the whole game. Kentucky judgments. His intent, he writes, “is to condition. ... Can it be pretended that gone, we can not hold Missouri, nor, return Lincoln to his historical setting, it is any longer the government of the as I think, Maryland.” Foner writes that tracing the evolution of his ideas in U.S.—any government of Constitution “Lincoln is said to have quipped, ‘I the context of the broad antislavery and laws—wherein a General, or a hope to have God on my side, but I impulse and the unprecedented crisis President, may make permanent rules must have Kentucky.’” the United States confronted during his of property by proclamation?” To give Yet, even if Lincoln was not an adult life.” Foner, an acclaimed histo- a general or the President that power abolitionist until the end of the Civil rian, succeeds admirably. would be to create a “dictatorship,” War, he had always opposed slavery. As part of the historical setting, Lincoln said. Can one even imag- In April 1864, in a letter to Albert G. Foner describes the racism that most ine a President in the 21st century Hodges, Lincoln wrote: white Americans—Lincoln included— being concerned about the dangers of shared. Lincoln believed that blacks expanding the powers of the execu- I am naturally anti-slavery. If were entitled to the natural rights tive? slavery is not wrong, nothing spelled out in the Declaration of In evaluating Lincoln’s being less is wrong. I can not remember Independence—“Life, Liberty, and the an advocate of African-American rights when I did not so think, and feel. Pursuit of Happiness”—but not nec- than we might wish, we must also And yet I have never understood essarily to legal rights. They were consider that he was a politician. that the Presidency conferred entitled to retain the products of their When Lincoln made racist remarks upon me an unrestricted right to labor, but not necessarily to vote. In in his debates with Douglas, he was act officially upon this judgment 1858, in his first debate with Stephen running for Senate and appealing for and feeling. It was in the oath I A. Douglas, Lincoln said, “I agree with the support of white racist voters. As took that I would, to the best of Judge Douglas [that the black man] such, he was taking a risk in opposing my ability, preserve, protect, and is not my equal in many respects— slavery at all. Note too the apparent defend the Constitution of the certainly not in color, perhaps not in hedging in Lincoln’s remark quoted United States. ... [T]his oath ... moral or intellectual endowment. But above that the black man “is not my forbade me to practically indulge in the right to eat the bread, without equal in many respects—certainly not my primary abstract judgment leave of anybody else, which his own in color, perhaps not in moral or intel- and feeling on slavery. hand earns, he is my equal and the lectual endowment.” His phrase, “not equal of Judge Douglas, and the equal equal in color,” if it has any meaning, Lincoln, however, did not blame of every living man.” is merely a repetition of the assertion only the South for slavery. In that Another aspect of the historical that the black man is not the equal same letter to Hodges, Lincoln sug- setting was Lincoln’s respect for the of the white. “Not equal in moral or gested that God had willed “that we of Constitution. He believed that it pro- intellectual endowment” is qualified the North as well as you of the South, tected slavery where it existed, but that by “perhaps.” The mere possibility that Congress had the power to block its blacks might be equal to whites mor- reviews continued on page 54

January 2011 | The Federal Lawyer | 53 reviews continued from page 53

shall pay fairly for our complicity in not see Reconstruction as an in Tombstone: The Forgotten Trial of that wrong.” Eleven months later, in his opportunity for a sweeping Wyatt Earp, among other books, now second inaugural address, Lincoln said political and social revolution turns his attention to the Constitution’s that “American Slavery”—not Southern beyond emancipation. He had Fugitive Slave Clause and the federal slavery—“is one of those offences” long made clear his opposition fugitive slave acts that implemented it. that God “now wills to remove” and to the confiscation and redistribu- His Fugitive Justice focuses on three “gives to both North and South, this tion of land. He believed, as most controversial trials that arose from the terrible war, as the woe due to those Republicans did in April 1865, enforcement of the Fugitive Slave Act by whom the offence came.” Foner that voting requirements should of 1850. suggests that Lincoln’s belief that the be determined by the states. ... Fugitive Justice does not meet the North was complicit in slavery “may But time and again during the high standard of originality that Lubet help to explain why he clung so long war, Lincoln, after initial opposi- set in Murder in Tombstone. In relating to the idea of compensated emancipa- tion, had come to embrace posi- the story of Earp’s trial for murder at tion.” In his Peoria speech in 1854, tions first advanced by abolition- the O.K. Corral, Lubet relied primarily Lincoln had said, “I think I have no ists and Radical Republicans. on contemporary documents, includ- prejudice against the Southern people. ing an extant trial transcript. In Fugitive They are just what we would be in One such position was support Justice, by contrast, his sources are their situation. If slavery did not now for the 13th Amendment. Lincoln had more often secondary ones on the his- exist amongst them, they would not initially preferred to pursue abolition tory of the fugitive slave acts and on introduce it. If it did now exist amongst on a state-by-state basis as part of the three trials at the heart of the book. us, we should not instantly give it his plan for Reconstruction. After the Lubet informs the reader, for example, up.” True as that may be, one might Senate approved the 13th Amendment that Albert J. Von Frank’s, The Trials reply that the South had slavery and in April 1864, however, Lincoln, in his of Anthony Burns provided “[m]any of deserved to be condemned for it, as letter accepting the nomination for a the facts” for his chapters on Burns. well as for fighting a war to preserve second term as President, called for That being said, Fugitive Justice, like slavery. But, although Lincoln spoke its passage. In addition, in his final the Earp account, is a dramatic telling, of slavery as a “monstrous injustice,” speech, three days before he was shot bringing out the rift that the fugitive he had no interest in condemning any at Ford’s Theatre, Lincoln called for the slave acts created between the North individuals for practicing it. “elective franchise” to be conferred on and the South. Lubet clearly identifies The Fiery Trial (the phrase is African-American men who are “very a major tension that was one factor in Lincoln’s description of the Civil War) intelligent, and on those who serve the coming of the Civil War. proceeds largely chronologically— our cause as soldiers.” Still not the radi- Lubet starts with the Constitution’s from Lincoln’s encounters with slavery cal, yet, as Foner writes, “not all men Fugitive Slave Clause (Art. IV, sec. 2, cl. in 1828 and 1831, when he helped placed in a similar situation possessed 3), which provides that a “Person held transport farm goods by flatboat down the capacity for growth, the essence of to Service or Labour in one State, ... the Ohio and Mississippi rivers for sale Lincoln’s greatness.” TFL escaping into another, ... shall be deliv- in New Orleans; to the three cases ered up” to his or her owner, regard- involving slaves that he handled as a Henry Cohen is the book review editor less of the law of the state to which lawyer (in one of them he represented of The Federal Lawyer. He published the slave fled. The use of the phrase, a slaveholder who sought to regain reviews of other books on Lincoln’s at- “Person held to Service or Labour,” possession of runaway slaves); to his titude toward slavery in the July 2006, exemplifies that, until enactment of the term in the House of Representatives June 2007, and August 2008 issues of 13th Amendment, the Constitution did (in 1849, Lincoln drafted a bill to pro- The Federal Lawyer. not refer explicitly to slaves or slavery. vide for gradual compensated eman- Congress enacted the Fugitive Slave cipation in the District of Columbia); Fugitive Justice: Runaways, Res- Act of 1793 to implement the Fugitive to his actions as President, including cuers, and Slavery on Trial Slave Clause. The act provided that issuing the Emancipation Proclamation slave owners were authorized to seize and devising a plan for Reconstruction, By Steven Lubet runaway slaves in the state to which under which a new state government The Belknap Press of Harvard University Press, they fled and to bring them before a could be established when 10 percent Cambridge, MA, 2010. 356 pages, $29.95. federal, state, or local judge or mag- of the voters in any state took an oath istrate. The judicial officer was to of loyalty to the Union. give the owner a certificate allowing Foner concludes by praising Re v i e w e d b y He n r y S. Co h n removal of the slave to his or her origi- Lincoln’s growth as President. At first, nal state. Northern states, however, unlike Senator Charles Sumner— Steven Lubet, a professor at upset the process by enacting statutes Northwestern University School of Law such as “personal liberty laws,” which, and other Radicals, Lincoln did and author of the acclaimed Murder in Lubet’s words, “required some mea-

54 | The Federal Lawyer | January 2011 sure of legal process as a condition of it. Rather, he defended his client on favor of the slave owner, and Burns lawful removal.” Other such statutes, the ground that the riot scene was so was returned to Virginia. Both Walt including Massachusetts’ Latimer Law, chaotic that identification of Hanway as Whitman and John Greenleaf Whittier prohibited state officials from par- a participant was impossible. Stevens wrote poems capturing the gloomy ticipating in the detention of fugitive was also able to convince the trial mood of the Boston populace, but the slaves and forbade the use of state judge—Robert C. Grier, a Supreme Pierce administration praised Burns’ facilities for their confinement. Court justice riding circuit—that the removal from Massachusetts. In Prigg v. Pennsylvania, 41 U.S. charge of treason against the United In 1855, Burns was sold to Leonard 539 (1841), however, Justice Joseph States was overreaching. Treason is Grimes, an African-American clergy- Story held the Fugitive Slave Clause to defined by the Constitution (Art. III, man, who freed him. Burns returned to be self-executing and to bar states from sec. 3, cl. 1) as “levying War” against Boston, where an anonymous woman enacting statutes that limit or delay the the United States or “adhering to” or gave him a scholarship to attend right of an owner to the immediate giving “Aid and Comfort” to its ene- Oberlin College in Ohio. The city possession of his or her slave. Later, mies. Lubet explains, however, that, of Oberlin, an abolitionist stronghold the Fugitive Slave Act of 1850, which in the early 19th century, although featured in the third trial that Lubet was part of the Compromise of 1850, “simply violating a statute in any discusses. built on Prigg. The 1850 act authorized one instance was an ordinary crime, In late 1858, Kentucky slave hunters U.S. court commissioners to preside ... attempting to nullify the law—by had captured a fugitive slave named over all aspects of fugitive slave pro- rendering it ineffective in all cases— John Price in Oberlin, but students ceedings. The only issue before a com- amounted to levying war. ... To gain and faculty from Oberlin College had missioner was whether the owner had a treason conviction, the prosecutors forcibly rescued Price, who was safely proved the identity of the slave who had to prove that Hanway intended to taken to Canada. Thirty-seven Oberlin had been captured in another state. render the fugitive law a nullity, not rescuers were indicted for violations The 1850 act also imposed stiff penal- merely that he had provoked resistance of the Fugitive Slave Act, and the first ties on anyone who interfered with an to the recapture of certain slaves.” two defendants—Simeon Bushnell, a owner’s retrieval of his or her slave. Justice Grier instructed the jury white bookstore clerk, and Charles Many in the North were repelled by that it could not convict Hanway for Langston, a black schoolteacher and this harsh act. treason if the insurrection was “for a principal as well as a journalist— Having set forth this background, private object, and connected with were brought to trial in Cleveland Lubet devotes the remainder of the no public purpose,” and, that in the the following spring. Both defendants book to three court cases that became case of Hanway, there was “want of were convicted. Bushnell declined the cause célèbres in the 1850s. Lubet any proof of previous conspiracy to judge’s invitation to address the court follows the chronology of each trial, make a general and public resistance before being sentenced, and he was focusing on the tactics employed by to any law of the United States.” The sentenced to 60 days’ imprisonment each side. jury took only 15 minutes to acquit and a fine of $600 plus costs—an The first case was the federal pros- Hanway, and, Lubet notes, “[t]he gov- impoverishing amount for a bookstore ecution of Castner Hanway, a white ernment would never again bring a clerk. Langston accepted the judge’s miller, for treason. The case arose from treason case to trial for resistance to invitation to speak and delivered a the so-called Christiana Riot of 1851, the Fugitive Slave Act, confining itself powerful speech, calling for future in which a party of slave catchers was to more modest prosecutions for lesser disobedience of the Fugitive Slave routed as it attempted to capture four offenses.” The governor of Maryland Act in the name of God-given rights. fugitive slaves in Christiana, Penn., a and other Southerners viewed the ver- The judge replied that the law must town near the border with Maryland, dict as an “incalculable calamity.” be vindicated but said, remarkably, which was a slave state. A slave owner The second case that Lubet dis- that Langston’s speech had “excite[d] from Maryland who was present to cusses dates from 1854 and involved the cordial sympathies of our better recover his slaves was killed during Anthony Burns, a slave from Virginia natures” and sentenced him to only 20 the incident. Although the trial took who ran away to Boston. His owner days’ imprisonment and a fine of $100, place in Philadelphia, the U.S. attorney traveled from Virginia to Boston to plus costs. It was in this trial that the from Maryland insisted that he be on have Burns arrested. Under the Fugitive defense of a “higher law” superseding the prosecution team, afraid that the Slave Act of 1850, Burns was brought the Fugitive Slave Act was raised, after U.S. attorney from Pennsylvania was before Edward Greely Loring, a U.S. use of such a defense was rejected insufficiently committed to a victory. commissioner, for trial on the sole by the accused’s attorneys in the two The chief attorney for the defense was issue of his identity. Prior to Burns’ earlier trials that Lubet discusses. The the “fiery abolitionist” and congress- his appearance in court, a group of “higher law” defense was uniformly man, Thaddeus Stevens. Boston citizens tried to free him, and rejected by judges. According to Lubet, Controversially, Stevens accepted a federal marshal was killed in the the mere fact that it was raised in the applicability of the Fugitive Slave melee. At trial, Burns was represented the Cleveland trial illustrated that the Act of 1850 to the case and did not by Richard Henry Dana, author of Two argue that a “higher law” superseded Years Before the Mast. Loring ruled in reviews continued on page 56

January 2011 | The Federal Lawyer | 55 reviews continued from page 55

defense attorneys were becoming more designated Senate and House meeting to understanding the steps involved in desperate and that the country was rooms scattered across Capitol Hill— crafting the written statement, deliv- about to split along sectional lines. government officials, business execu- ering oral testimony, and answering Lubet concludes by pointing out tives, nonprofit leaders, and academic questions asked by a committee. Each that enforcement of the Fugitive Slave experts sit before panels of lawmakers of these activities entails a different set Act of 1850 did not end immedi- to achieve a common purpose: to con- of preparatory tasks, which LaForge ately after the election of Abraham vince Congress to do something or to does a good job of detailing. He also Lincoln and the commencement of refrain from doing something. helpfully includes examples of key the Civil War. Four slave states—the The congressional hearing, perhaps hearing documents, including hearing border states of Delaware, Kentucky, more than any other congressional offi- statements, as well as follow-up ques- Maryland, and Missouri—had not cial practice, possesses coherence and tions. The bullet-point summaries at seceded, and Lincoln believed that value. It is in part classroom, designed the end of each chapter are a valuable military victory would be impossible to elicit information and insight into map for the time-conscious reader. if they did. Accordingly, Lincoln con- a subject, and it is part theater, at Humor also pops up in the book, tinued to enforce the Fugitive Slave times providing political fireworks as through what LaForge playfully calls Act in these states. By the summer of well as substantive background that HITS—humor in testimony. Some 1863, however, Lubet writes, “with the helps direct congressional policymak- examples are real, others are fanci- Emancipation Proclamation in force, ing. Congressional hearings put to the ful. The best is the transcript the 1906 the Fugitive Slave Act had ‘lost its use- test why a bill should be passed, or appearance of Samuel L. Clemens— fulness’ to the Union and it fell more probe why a government agency or a better known as Mark Twain—before or less into desuetude.” In June 1864, corporation did what it did, or demand a congressional joint committee to Lincoln signed a bill to repeal it. to know why a government program testify in support of a copyright bill. Lubet states that, in Fugitive Justice, deserves to receive taxpayer dollars. Clemens demonstrated the art of weav- his intent was to tell a good story. Even The issues and politics of each of these ing vignettes into the message underly- though he retreads some ground, he situations are often substantively and ing his oral testimony. has certainly accomplished that goal politically complex. One wishes the book had included with his descriptions of three tense Testifying Before Congress is a high- coverage of confirmation hearings and courtroom trials and of the heroes that ly accessible guide to demystifying and how to prepare executive branch and fought for justice for fugitive slaves and mastering the art of the congressional judicial nominees for their appearances their rescuers. TFL hearing. It is an authoritative reference before the Senate committee that will work for use by witnesses preparing vote yea or nay to their appointment. Henry S. Cohn is a judge of the Con- to enter the lion’s den on Capitol Hill Such hearings can sometimes be high- necticut Superior Court. He reviewed the as well as for those counseling and profile encounters with members of books mentioned in this review about preparing a witness to testify before a Congress, creating sensitive demands Anthony Burns and Wyatt Earp for The congressional committee or subcom- in working with lawmakers, staff, and Federal Lawyer, in the Aug. 1998 and mittee. Its author, Bill LaForge, is a the media. Although few readers are Mar./Apr. 2005 issues, respectively. highly respected Washington lobby- likely to find themselves preparing for ist and teacher of public policy, with nomination hearings, a review of the Testifying Before Congress: A more than three decades of experience distinctive features of these hearings Practical Guide to Preparing and as a government official, Senate appro- and how to prepare for them would Delivering Testimony Before Con- priations committee staff director, and have been helpful. Washington lawyer and lobbyist. He LaForge observes that, when done gress and Congressional Hearings was also national president of the well, a congressional hearing is a for Agencies, Associations, Cor- Federal Bar Association in 2006–2007. rational process, capable of serving porations, Military, NGOs, and Congressional hearings are the clos- the interests of effective government. State and Local Officials est that Congress comes to trial litiga- Lawmakers and advocates alike should tion, with opening statements, oral take time to study and learn from this By William N. LaForge testimony, and verbal sparring with valuable book. TFL TheCapitol.Net, Alexandria, VA, 2010. 414 witnesses. Preparation for this effort is pages, $77.00. key, just as it is for trial, and LaForge Bruce Moyer, principal of The Moyer insightfully dissects and organizes a Group, serves as counsel for government series of tasks to enable one to meet relations to the Federal Bar Association. Re v i e w e d b y Br u c e Mo y e r the challenge. His aim is to assist a wit- He provided editorial encouragement ness to deliver a concise, understand- to the author in the early stages of the Every year, Congress holds about able written message, underscored book. 2,000 hearings on an endless range of through oral testimony. topics. At those hearings—in specially Testifying Before Congress is helpful

56 | The Federal Lawyer | January 2011