Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (review)

While the numerous fugitive slave cases conducted under the provisions of the 1850 Fugitive Slave Act were very real for the participants involved—often tragically ending in their return to bondage—they also took on symbolic and political significance. Supporters of these proceedings never admitted that they constituted a trial because to do so would open a Pandora's Box of constitutional objections. In Fugitive Justice, Northwestern University law professor Steven Lubet has written a lively and entertaining account of three of the most celebrated fugitive slave trials in the 1850s. The intention of the Compromise of 1850 was to remove slavery from the political arena. However, the act, according to Lubet, "transferred the controversy from remote, and barely settled, territories to the population centers of the East, potentially entangling the federal government in every escape, warrant, seizure, rescue, and trial until the advent of the Civil War" (49).

Lubet is particularly skilled at building suspense and reader interest in the legal strategies of both sides in the courtroom. The author leads the reader step by step through the maze of courtroom arguments, taking what would seemingly be dry material and raising it to the level of high drama. Lubet maintains that in the first part of the decade the antislavery legal bar argued that the revamped fugitive slave law (the law was really an amendment to the 1793 Fugitive Slave Law) violated civil liberties and constitutional protections for a jury trial.

In the latter half of the decade, arguments solely based on theories of moral justice began to take over. From 1850 to 1859, higher law arguments transformed "from an abstract inspiration to an unapologetic legal defense" (8).

The first case that Lubet covers is the 1851 treason trial of Castner Hanway. On September 11, 1851, a group of blacks violently resisted a Maryland slaveholder's attempt to reclaim four fugitives near Christiana, Pennsylvania. When the dust settled, the slaveowner was dead and his son lay wounded. Because the fugitives had successfully fled the scene, the Fillmore administration was forced to bring charges against anyone they could find. Eventually, thirty-eight men were charged on 117 separate counts of treason. The trial of the white abolitionist Hanway in the U.S. Circuit Court (ironically located in Independence Hall in Philadelphia) was packed with spectators. Lubet's in-depth discussion of the defense arguments shows that the antislavery legal bar was interested primarily in results and not in directly challenging the fugitive slave law or slavery itself. With Hanway's eventual acquittal, Lubet sees cracks in the sectional compromise because of the Fillmore administration's decision to abandon attempts to indict opponents of the new fugitive slave law for treason. Moreover, in subsequent cases, claims of innocence were far less "availing" as they were in Hanway's trial and "that very circumstance would create far greater latitude for invoking higher law in the courtroom" (131).

The second fugitive slave controversy covered by Lubet is the multiple trials connected with the 1854 Anthony Burns affair in Boston. On May 24, 1854, Burns was arrested on his way home from his job at a clothing store. Reverend Thomas Wentworth Higginson and other Boston abolitionists led an abortive attempt to rescue Burns. Having already endured one embarrassing rescue in 1851, officials were prepared. A guard was killed, but Burns remained in custody. Burns was defended by Richard Henry Dana, Jr., Charles Ellis, and Robert Morris. Dana was unwilling to "concede the legitimacy of slavery," as was the case in Hanway's trial, but he did not call for Commissioner Edward Loring to accept higher law arguments (198). Despite the trio's eloquence in the courtroom, Loring remanded Burns back to slavery. Burns was put on a boat to Virginia just three days after President Franklin Pierce signed off on the Kansas–Nebraska Act. However, the legal controversy did not end with Burns's rendition. U.S. District Attorney Benjamin F. Hallett...