Fugitive Justice: Runaways, Rescuers, and Slavery on Trial, and: Fugitive Slave on Trial: The Anthony Burns Case and Abolitionist Outrage (review)

Four days after adopting its Ordinance of Secession, the same South Carolina Convention issued its Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. The underlying principle was "the law of compact," according to which, if one party to a contract "fails to perform a material part of the agreement," the aggrieved party is released from its obligation. The "proof " that fourteen northern states failed to meet their obligations under Article IV of the Constitution—requiring the rendition of fugitive slaves—was laid out in the declaration's longest section. Because of this failure regarding fugitive slaves, the compact was "deliberately broken" and South Carolina was released from its obligations.

In his first inaugural, lawyer Lincoln destroyed South Carolina's "law of compact" argument—all the parties to the contract, he said, had to agree to its rescission. Then, he jumped headlong into the fugitive slave issue, about which, he acknowledged, there was "much controversy." He urged his northern listeners to abide by the fugitive slave law, rather than hope it might be found unconstitutional. Lincoln reminded the South that, if the sections separated, the North would no longer surrender fugitive slaves as it did, however imperfectly. There was much at stake in how the Fugitive Slave Act was interpreted, not only in southern statehouses and at the White House but in courtrooms throughout the North. The two works under review here bring new attention to the topic.

Steven Lubet's Fugitive Justice is essential to exploring the issues surrounding the implementation of the Fugitive Slave Act. Of the 191 known proceedings under that act, the author selected three fugitive slave trials: the 1851 "Christiana slave riot" trial in Pennsylvania (the largest treason trial in U.S. history); the dramatic 1854 Boston trial of the escaped slave Anthony Burns; and, finally, the 1858-59 trials in Ohio of thirty-seven Oberlin rescuers of a Kentucky fugitive. Lubet, who directs the Bartlit Center for Trial Strategy at Northwestern University Law School, carefully traces the changing nature of defense counsels' strategy, as it evolved from an acceptance of the legitimacy of the Fugitive Slave Act (Christiana), to acceptance of resistance (Burns), to flat-out disobedience based on a "higher law" (Oberlin). The enactment of the Kansas-Nebraska Act of 1854 influenced this change, for if the slave-owning South was no longer barred from westward expansion, why should abolitionists feel bound by the fugitive slave law that had been the key part of the Compromise of 1850? Along the way, Lubet explains how antebellum trial practice differs from today's, in that judges enjoyed great latitude in their jury charges, defendants were disqualified from testifying on their own behalf, and defense lawyers had no opportunity to obtain witness statements in advance. He puts the reader in the position of a juror, a prosecutor, a judge, and defense counsel, and succeeds in making the issues human and real.

Readers might have found it useful had he included the text of the Fugitive Slave Act of 1850, and the author might have spent more time on the March 1859 case Ableman v. Booth, which exposed all the issues with fugitive slave rendition, but these are minor quibbles.

Earl M. Maltz focuses exclusively on the Boston trial of Anthony Burns in Fugitive Slave on Trial. The book is a departure for Maltz, a constitutional scholar at Rutgers Law School, and scholarly readers will miss the footnotes. The author brings his talents to bear in presenting the broad context of the Burns case. While he covers the same ground as Lubet, Maltz digs deeper into the fate of the federal commissioner...