Noble Purposes : Nine Champions of the Rule of Law [1 ed.] 9780821442210, 9780821417317

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noble purposes

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NOBLE PURPOSES Nine Champions of the Rule of Law

Edited by Norman Gross Foreword by Karen J. Mathis

  

•



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Ohio University Press, Athens, Ohio  www.ohio.edu/oupress ©  by Ohio University Press Printed in the United States of America All rights reserved Ohio University Press books are printed on acid-free paper ƒ ™       



Library of Congress Cataloging-in-Publication Data Noble purposes : nine champions of the rule of law / edited by Norman Gross ; foreword by Karen J. Mathis. — st. p. cm. Includes bibliographical references. ISBN-: ---- (cloth : alk. paper) ISBN-: --- (cloth : alk. paper) . Lawyers—United States—Biography. . Judges—United States—Biography. . Justice, Administration of—United States—History. . Rule of law—United States—History. I. Gross, Norman. KF.N  .'—dc [B] 

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CONTENTS Foreword

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Preface

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1 Samuel Sewall Defender of the Rule of Law? 

John R. Vile

2 James Alexander Prophet of a Free Press John D. Gordan III

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3 Lemuel Shaw The Shaping of State Law Paul Finkelman

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4 The Courage of His Convictions Hugh Lennox Bond and the South Carolina Ku Klux Klan Trials Kermit L. Hall

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5 Clara Shortridge Foltz Inventing the Public Defender Barbara Allen Babcock

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6 Noah Parden In the Eye of the Storm Mark Curriden

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7 Race, Party, Class The Contradictions of Octaviano Larrazolo Phillip B. Gonzales

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8 Louis Marshall Attorney General of the Jewish People Henry M. Greenberg



9 Francis Biddle Protecting the Rule of Law during Wartime Cornell W. Clayton

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Contributors

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Illustration Credits



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FOREWORD Aristotle said, “it is in justice that the ordering of society is centered.” For more than three millennia, cultures of the world have yearned and struggled for justice. America’s commitment to justice as the foundation of our society has been challenged, perhaps no more so than today. We say our democracy is anchored by the rule of law; but what does the phrase mean? U.S. Supreme Court associate justice Anthony Kennedy says the rule of law is “government being bound by the law, which must treat all persons equally, regardless of race, color, ethnicity, religion or gender.” He says laws must be just, for following unjust laws does not give us a rule of law. The law must recognize that within each person there is a core of dignity and humanity, and within this precept we can begin to define what rights are encompassed by the rule of law. Noble Purposes honors those in the legal profession who dedicated their lives to the pursuit of justice and, therefore, the rule of law. The founders of our nation wrote that “all men are created equal,” and they meant white men only! The individuals whose lives are reflected in these pages demonstrated single-minded devotion to fulfilling the promise of justice and extending the principles of our Constitution to all citizens. Each person profiled in these pages served as a steward of our nation, shaping and building on the democratic principles enunciated by Jefferson, Adams, Hamilton, Madison, Monroe, and many others. Our country’s founders were the architects of the “noble experiment” we call America. The lawyers and judges profiled in Noble Purposes were builders and renovators who set the stage for and improved on the constitutional design. They brought their talent and convictions to bear on strengthening the structure of our society. Lawyers and judges, as well as others who serve our legal system, find common ground and purpose in their commitment to justice and to upholding the rule of law. We face common challenges. Wherever we

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reside, practice, or preside, we struggle to balance the desire for unfettered liberty with the need for equity, order, and security. The stories of the individuals inhabiting these pages help us strike the correct balance. The familiar contours of our modern rights owe a deep debt to these—and many other—noble women and men. From their achievements, we have gained positive change. From their results, we affirm that principles of justice and individual worth contribute to our collective security and prosperity. From their examples, we witness that courage and willpower sustain our faith in the rule of law. Read on and meet these noble heroes. Karen J. Mathis, President American Bar Association

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PREFACE The idea for this book had its genesis in  when, as director of the American Bar Association Museum of Law, I was researching cases for an exhibit entitled Famous Trials in American History. Though an amateur historian, I thought I knew much about major legal cases, such as the colonial trial of printer John Peter Zenger, which laid the foundation for freedom of the press and was described as “the morning star of liberty which subsequently revolutionized America.” My research uncovered additional insights into the named defendant, John Peter Zenger, and the storied lawyer who defended him, Andrew Hamilton. But who was this lawyer James Alexander, whose role seemed more and more prominent as my research progressed? A bit embarrassed by my ignorance, I asked a number of legal colleagues and journalists about the Zenger case and Alexander. While most were familiar with the case, and with Zenger and Hamilton, few if any knew of Alexander. They too were surprised to learn about Alexander’s extensive contributions—which included getting Zenger to print America’s first opposition newspaper, the New-York Weekly Journal; writing much of its content, with fellow counsel William Smith; initially representing Zenger in his trial; writing the case brief; recruiting Hamilton to defend Zenger after he and Smith were removed from the case; and then writing a publication about the trial, which became one of the most popular books in colonial America. Alexander was a major figure who seemed to have been lost in the pages of history. While the thought then struck me to prepare a book about Alexander and others like him, pressing responsibilities intervened, as I continued my work with the ABA and the Museum of Law. The Famous Trials exhibit was soon produced, as was a book and exhibit entitled America’s Lawyer-Presidents. In the course of these activities, more individuals like James Alexander came to my attention, and upon completing my tenure

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with the ABA, it was time to tell the stories of these important—but largely forgotten—figures in American history. Beyond being largely forgotten, I identified other criteria for inclusion in the book. First, the featured subjects had to be lawyers or judges who advocated unpopular positions in notable cases or events, often at great personal risk. Second, their lives had to span centuries of American history. Third, they had to reflect ethnic, racial, and geographic diversity. Finally, and most importantly, their stories had to be compelling for the general public. Based on contacts with legal historians and scholars, I assembled a list of more than fifty individuals who met the above criteria, with the goal of including from seven to ten in the publication. With input from various colleagues and friends, the final group appears in this book. In addition to Alexander, the book describes the fascinating lives of Samuel Sewall, a judge in the Salem witch trials; Lemuel Shaw, one of the great state jurists; Hugh Lennox Bond, a judge in the South Carolina Ku Klux Klan trials of the s; Clara Shortridge Foltz, whose fifty-year law career was marked by numerous firsts; Noah Parden, who represented an African American in a case that led to a landmark U.S. Supreme Court decision; Octaviano Larrazolo, the first foreign-born Latino to become a U.S. senator and governor; Louis Marshall, champion of the rights of Jews and other minorities here and abroad in the early s; and Francis Biddle, FDR’s attorney general during World War II who opposed the internment of Japanese Americans and other infringements on civil rights during wartime. Their stories collectively represent the promise, turmoil, setbacks, and triumphs of the rule of law. Many people contributed their ideas, time, and talents to this volume. My thanks go first to the authors, who vividly and succinctly describe the book’s featured individuals and the challenges and events of their day. The articles present the vision, achievements, and shortcomings of these individuals as they sought to promote and uphold the rule of law. In many respects, the authors provide a mirror to centuries of American history, enhancing our knowledge and appreciation of America’s quest for justice and equality under the law.

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I also thank Karen Mathis, president of the American Bar Association, for providing the foreword to this volume. Her predecessor as ABA president, Mike Greco, described the profession’s noble purposes in a speech to the organization, thus planting the idea for the title of this volume. It is most appropriate that these two ABA leaders have made such contributions to the book, as the organization’s activities over the past  years have included many significant—and often underrecognized—accomplishments. As with individuals covered in this volume, the ABA record is not unblemished. However, during my years with the ABA, I was continually struck by its multifaceted efforts to promote the rule of law here and abroad, efforts that continue today. Finally, my appreciation goes to David Sanders and Ohio University Press, which embraced this book concept and have since provided collegial and professional guidance and assistance in its development. It has been a pleasure working with them on all facets of its production. Norman Gross

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SAMUEL SEWALL Defender of the Rule of Law? John R. Vile

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T I S B O T H A P P RO P R I AT E A N D ironic to describe Samuel Sewall as a defender of the rule of law. It is appropriate because Sewall embodied many of the qualities of a good judge for more than thirty years. He was an early advocate of equal rights for African Americans and Native Americans and a defender of the view that women, like men, had souls and would share heavenly joys. Moreover, Sewall represents the culture of Puritanism, which laid important foundations for American law by distinguishing between liberty and license and by valuing, though not always extending to others, liberty of conscience. To describe Sewall as a defender of the rule of law is ironic because although he was neither a lawyer nor formally trained in the law, he served as a judge in the notorious Salem witch trials, which led to the death of twenty innocent victims. Sewall was a man of faith at a time when fellow citizens considered knowledge of the Bible, and especially the Old Testament, more important than knowledge of contemporary books of law. Had Sewall been more skeptical of the wide-eyed claims of the young witnesses in the Salem witch trials or had he been trained in cross-examination and other trial techniques, he would have served the cause of justice better.

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However, his belief in being accountable to God prodded him—alone among his fellow judges—to apologize publicly for his role in the trials. Fortunately, Sewall documented his life in diaries that cover the years from  to  (except for a gap from  to ). The diaries reveal much about Sewall’s private and public life, and they reflect his considerable literary skills. Although Sewall devoted much commentary to spiritual matters, scholars have likened his diary to that of Samuel Pepys, the prominent politician whose writings provide the most important historical record of England in the s. Sewall’s story is a tale of law and life in Puritan Massachusetts and of the Salem trials, spawned by hysteria, which have become a watchword for unjust proceedings. Sewall was born in Bishop Stoke, Hampshire, England, in  to a family of relatively comfortable means. His father, Henry Sewall Jr., who served for a time as a minister, first arrived in Massachusetts at the age of twenty to set up a cattle farm. There he married Jane Dummer and, after returning to England, the family resettled in Massachusetts when Samuel was nine years old. In England and America, Sewall received a classical education, including instruction in Greek and Latin. He entered Harvard at the age of fifteen and studied there for seven years, earning both undergraduate and master’s degrees. He served as a teaching fellow as he pursued the latter degree, at a time when Harvard enrollments had decreased and the school was in decline. His primary training at the graduate level was theological—he wrote his thesis on original sin—and he graduated with the apparent intention of becoming a pastor. Yet he turned down an offer of a ministerial position in Woodridge, New Jersey. Soon after getting his master’s degree, Sewall married eighteen-yearold Hannah Hull, daughter of wealthy Boston merchant John Hull, who had established the colony’s first mint. Hull invited his son-in-law to join in his mercantile activities, and Sewall did so for about a decade. In , Sewall was accepted as a freeman, a full citizen qualified to hold office, and he became a member in his father-in-law’s Third, or Old South, Church in Boston. In time Sewall assumed many of the public service positions that his father-in-law had occupied, serving in charge of the night watch in Boston and of the colony’s printing press, and later becoming one of

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Boston’s seven assessors, a deputy for Westfield, and one of eighteen men on the court of assistants, which combined legislative, executive, and judicial functions. Although he never fought in a battle, Sewall was also a longtime captain of the local militia, and his diary is replete with reports of Indian massacres and ambushes and other military threats, or perceived threats, that weighed so heavily on the colony. During the s, Sewall and his fellow citizens faced difficult challenges in addition to the continuing Indian conflicts. Though the colonists had enjoyed relative autonomy since settling in the New World, Massachusetts lost its royal charter in . England then created the Dominion of New England, which included several colonies, and land titles were threatened. Sewall traveled to England in  along with Increase Mather largely to protect property interests, including his own. In many respects, the charter revocation created a legal limbo in Massachusetts. The colonies also were experiencing what has been described as the dark ages of American law. Early colonial codes contained many provisions that were hostile to lawyers and legal practice, and as a result untrained laymen filled the courts. At the same time, the justice system was in flux, continually seeking to adapt English law and procedure to colonial circumstances. Moreover, in the colonies there was more of a blending than a separation of church and state. Particularly in Puritan New England, legal codes were an important means for enforcing morality, as reflected by harsh laws prohibiting idolatry, adultery, and drunkenness, as well as special provisions such as Sunday blue laws. Of course, there were also laws against witchcraft, for Puritans believed in the devil and his devious ways, including his use of agents to wreak evil. Indeed, scores of men and women had been arrested and imprisoned on charges of witchcraft since , and no less a light than England’s Sir Matthew Hale, chief justice of the King’s Bench, had sentenced an individual to death for that offense. In  the seeds of the Salem witch trials were sown. Betty Parris, the six-year-old daughter of Samuel Parris—the new minister in Salem village, who had arrived with a West Indian slave, Tituba, whom he had brought with his family from Barbados—began to experience a number of physical and psychological symptoms, including severe contortions. These frightening symptoms soon spread to six additional playmates,

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including seventeen-year-old Mercy Lewis, who had come to the village as a result of the Indian wars and who proved to be a particularly creative accuser. Cotton Mather had recently published a book called Memorable Providences, which discussed witchcraft, and this seemed to be a logical explanation for what was happening. The children appeared to confirm such fears when they reported that devil-driven neighbors were appearing to them in the form of apparitions and torturing them. As few in Puritan New England doubted either the existence of the devil or witches, these charges were taken very seriously. Sewall was one of the nine men whom the governor appointed to a special court of oyer and terminer to look into the matter. Old Testament scriptures had declared that no witch should live, and the dramatic testimony of the accusing girls seemed to show that witchcraft was afoot. The court was willing to hold blameless those who accused others and to acquit those, like Tituba, who confessed that they had fallen under the spells of others. But what about those who professed their innocence? A court led by more worldly men might have interpreted such reticence, and their outright denials, as a sign that the charges were fabricated and the accused were innocent. But the court allowed the use of spectral evidence—allegations that the accused had appeared to their accusers in the shape of other humans or animals to torture them. And absent legal representation for the prosecution or defense, or effective cross-examination by the court, the judges interpreted refusals to confess as hard-heartedness. Of two hundred people accused during the witchcraft trials, twenty-nine were found guilty and nineteen of those received death sentences. The execution of George Burroughs, a former minister at Salem village, proved particularly unnerving. Although accused of having bewitched soldiers during a failed Indian campaign, he not only refused to admit guilt on his execution day—which would have invited eternal damnation if he were guilty—but he also recited the Lord’s Prayer without error, something then thought impossible for someone possessed by the devil. Eventually, the juvenile accusers began widening their nets to include so many respected persons that their claims were recognized as fabrications and illusions, but that could not revive the dead. (Some

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observers also believe the witchcraft trials were used as a means of transferring blame from judges who had leadership roles in the failing Indian wars to others.) In late October , Governor William Phipps disbanded the court and put an end to the trials. In late , Sewall wrote a proclamation that called for a day of prayer and fasting for the sins of the trials and for government reparations to its victims. Sewall’s diary demonstrates that he may have feared that God had taken some of his own children as punishment for his role in the trials—of his fourteen children, only six survived to adulthood. Sewall was the only one of the trial’s nine presiding judges (one appointee had quit after the first trial and was replaced) who then, or ever, publicly confessed his transgressions, although some jurors also did so. The event took place on January , , a day of fasting and prayer, when Sewall stood and handed the pastor of the Old South Church the following statement, which, in accord with the custom of the time, the pastor read aloud as Sewall stood: Sensible of the reiterated strokes of God upon himself and family; and being sensible, that as to the Guilt contracted upon the opening of the late Commission of Oyer and Terminer at Salem (to which the order for this Day relates) he is, upon many accounts, more concerned than any that he Knows of, Desires to take the Blame and shame of it [the Salem trials], Asking pardon of men, And especially desiring prayers that God, who has an Unlimited Authority, would pardon that sin and all other his sins; personal and Relative: And according to his infinite Benignity, and Sovereignty, Not Visit the sin of him, or of any other, upon himself or any of his, nor upon the Land: But that He would powerfully defend him against all Temptations to Sin, for the future; and vouchsafe him the efficacious, saving Conduct of his Word and Spirit. An apology might seem small recompense to the memory of those who had been executed, but there are indications that Sewall’s apology was sincere and that he took the lessons from the witchcraft trials to

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heart. Sewall also set aside a day in each subsequent year to fast and pray for forgiveness for his role in the trials. Following the witchcraft trials, Sewall was appointed to the superior court, where he served for twenty-five years as an associate justice and eleven years as chief justice. The position, like the colony it represented, often combined functions of church and state, and it was not uncommon for Sewall to begin sessions with a prayer on occasions when pastors were not present for such duty. It was not his only pastoral activity. Sewall’s diary indicates that he attended the funerals of almost everyone of consequence in Boston, held regular devotional exercises with his family, frequently visited and prayed with the sick, regularly attended church, and often recorded notes of sermons in his diary. Scripture also played a prominent role in Sewall’s tenure on the bench, as he based his judicial code of conduct on biblical norms. After his appointment as chief justice, he wrote to the governor, asking, “Whose Ox have I taken?” and observing “that Partiality or Bribery cannot be laid to my Charge.” In one case, Sewall declared the suit “contrary to our Law, the Law of Nature and the Law of .” But Sewall recognized the distinction between legal and moral guilt. In one case, when the superior court declared a man not guilty, Sewall told the acquitted defendant, “The providence of God in clearing you, will I hope melt your heart: for what you did, was notoriously Criminal.” Reflecting a biblical admonition, Sewall’s diary recorded his wish that he “could once become wise as a Serpent and harmless as a Dove!” Apart from the Salem witchcraft trials, Sewall’s work as a magistrate involved judging matters from petty misdemeanors to capital offenses. Although he and other judges were responsible for fining persons for swearing, Sabbath breaking, and a variety of sexual offenses that today are beyond the scope of the law, his Puritan background gave him sympathy for those who asserted that, whatever their status, they were equal under the law. Sewall thus helped two farmers secure bail in a contentious case that appears to have started when they refused to yield their place on a road to the carriage of a man simply because he was a governor. Sewall demonstrated his knowledge of English law on the occasion by citing a case against the Crown involving the esteemed English jurist Edward Coke.

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In Sewall’s day murder was one of many capital offenses, and he hardly seemed to blink when attending executions, which he sometimes likened to turning someone off, as one would a faucet. However, Sewall does not appear to have been particularly bloodthirsty by the standards of his day. Following English precedents, for example, Sewall opposed inflicting the death penalty on those who had counterfeited bills of credit. In , after completion of a new court chamber, Sewall addressed a grand jury about his philosophy of judging. “You ought to be quickened to your Duty,” he said, “in that you have so Convenient, and August a Chamber prepared for you to doe it in.” He explained: Let never any Judge debauch this Bench, by abiding on it when his own Cause comes under Trial; May the Judges always discern the Right, and dispense Justice with a most stable, permanent Impartiality; Let this large, transparent, costly Glass serve to oblige the Attornys always to set Things in a True Light. . . . Let them Remember they are to advise the Court, as well as plead for their clients. Sewall continued by expressing the hope that witnesses would testify truthfully, that the court would decide “righteously,” and that the people would continue to flourish like a tree. Although his contemporaries valued Sewall’s knowledge of scripture, he recognized the importance of English law, of purchasing law books from England, and of attempting to align colonial practice more closely to that of the common law. Sewall’s diary also indicates that he enjoyed the pomp and circumstance of his position and the respect citizens accorded him as a judge. A distinctive feature of Sewell’s career was his advocacy of positions that are today politically correct but were hardly popular in his day. One genesis of his advocacy for African Americans was a case involving John Saffin, who attempted to keep a slave beyond the agreed-upon term, Saffin alleging that the slave had not fully fulfilled his duties during the time he served. Sewall crafted a pamphlet, The Selling of Joseph, in which he used the biblical story to argue against slavery at a time when

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fellow merchants were enriching themselves from the slave trade. The publication, which appeared in , was the first antislavery tract in the colonies. In the publication, Sewall attempted to answer the claim that Africans were descended from Ham, the son of Noah, whom Noah had cursed and who therefore deserved slavery. Sewall responded that it was “Uncall’d for, to be an Executioner of the Vindictive Wrath of God; the extent and duration of which is to us uncertain.” The curse might be out of date, he observed, adding, “Many have found it to their Cost, that a Prophetical Denunciation of Judgment against a Person or People, would not warrant them to inflict that evil.” Given Sewall’s judicial experiences in the witch trials, this comment certainly appears autobiographical. Other entries in Sewall’s diary suggest that such experiences led him to take a more skeptical view of unsubstantiated accusations. When a slaveholder named Thomas Jefferson proclaimed at the dawn of American independence that “all men are created equal,” he relied on the doctrine of natural rights, but he also referred to the fact that all humans had the same creator. Sewall used similar logic in The Selling of Joseph, but with arguments more firmly grounded in scripture. Sewall’s opening salvo sounds Lockean: “Forasmuch as Liberty is in real value next unto Life: None ought to part with it themselves, or deprive others of it, but upon most mature Consideration.” Nevertheless his subsequent arguments were more theological. He observed, “It is most certain that all Men, as they are the Sons of Adam, are Coheirs; and have equal Right unto Liberty, and all other outward Comforts of Life.” Just as Joseph’s brothers had no authority to sell him to traders traveling to Egypt, so modern slave traders had no right to buy or sell African Americans. Like Jefferson, Sewall feared that former slaves could not live at peace with their former masters. He proposed substituting a system of indentures for slavery and, somewhat less politically correctly, opined that “there is such a disparity in their Conditions, Colour & Hair, that they can never embody with us, and grow up into orderly Families, to the Peopling of the Land: but still remain in our Body Politick as a kind of extravasat Blood.” And like some later abolitionists, Sewall apparently favored sending slaves back to Africa.

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However tempting it might have seemed, Sewall did not accept the argument that slavery was justified because it exposed Africans to Christianity. He observed, “Evil must not be done, that good may come of it.” He further observed that the good that Joseph did in Egypt did not exonerate his brothers for their wrongdoing. Sewall also opposed the law forbidding interracial marriage, observing that he tried to prevent African Americans and Native Americans from being “rated with Horses and Hogs, but could not prevail.” His arguments resonate from one century to another. At the  Constitutional Convention, Connecticut’s Roger Sherman objected to the fugitive slave clause on the basis that he “saw no more propriety in the public seizing and surrendering [of] a slave or servant, than a horse.” Saffin responded in print to Sewall, and soon after the Sewall-Saffin debate over slavery, Cotton Mather let it be known that Christian masters were not obligated to free slaves who converted to Christianity. Sewall thus did not convince his fellow contemporaries, but he appropriately is credited with trying. Although Sewall opposed slavery on the basis that God had created all races, his concern for Native Americans stemmed at least in part from a somewhat quainter idea he had learned at Harvard. Reflecting a view shared by many Puritans, he saw America as having a unique prophetic destiny and he believed Native Americans had descended from the lost tribes of Israel. At a time when Puritans were often warring with Indians, Sewall had a long-standing interest in their conversion. He served for more than twenty years as treasurer and then secretary of the Society for the Propagation of the Gospel in New England. He donated land to provide funds for Indian meeting houses and for Native Americans to attend Harvard. Sewall also argued for boundary lines between Puritans and Native Americans as a way to foreclose conflict and tried to dissuade his countrymen from sending military expeditions against the Indians in his tract A Memorial Relating to the Kennebunk Indians. In  Sewall unsuccessfully opposed a bill that would have prohibited whites from marrying Native Americans or African Americans, but he was able to mitigate the harshness of the latter restriction by prohibiting masters from forbidding their slaves to marry.

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In , Sewall was reading The British Apollo, which questioned whether there would be any females in heaven. The book’s author reasoned that since Jesus had said there would be no marriage there, women would not be needed! Perhaps stirred to action in part because he was distraught over the plight of his invalid and terminally ill daughter, Hannah, Sewall penned an essay entitled Talitha Cumi, a title taken from words Jesus had used in raising a girl to life. Sewall countered Apollo by arguing that God’s “Sons and Daughters” would be equally at home there and that God would resurrect males and females complete with their existing body parts, all of which God would redeem. On the personal side, Sewall was a lively figure whose personality emerges with force in his diary from his succinct, yet colorful, observations of daily life. A short man who weighed as much as  pounds, Sewall’s girth reflected his love of good food, good beer, and good wine (although they abhorred drunkenness, Puritans were not the authors of later pietistic views on alcohol). Sewall also enjoyed good sermons, good books, and good music—for twenty-four years he led the congregation in singing the psalms at the Old South Church. Although he joined in public fast days and held private fasts of his own, he often carried chocolates, nuts, and fruit to share with others, and after his wife died, he often favored the women he was courting with such treats and with books of sermons. A man of strong Puritan faith and conviction, Sewall sometimes impressed even his contemporaries as straining at the gnat while swallowing the camel. Sewall disdained observances of “holy days,” including Easter and Christmas, which he associated with Roman Catholicism, and he delighted in recording in his diary regular commercial activities on such days. Despite his role in leading the choir, he opposed the use of musical instruments in church. Following older biblical usage, he believed that fellow citizens should refer to days of the week by number rather than by name. And he took offense when British troops carried banners with the symbol of the cross and opposed their worshipping in Puritan gathering places according to the forms practiced by the Church of England. Sewall also had a lifelong aversion to periwigs, which he associated with vanity, and he covered his own bald spot with a cap. He found that

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his failure to adapt to changing mores on the subject impeded his union with a potential wife. His substantial concerns about leaving money to her children also contributed to a failed courtship of the widow Katherine Winthrop, of which Sewall gives a lively account in his diaries. A lifelong member of the board of trustees at Harvard, Sewall believed that the president of the college, who was primarily committed to serving his own congregation, should give weekly sermons to the undergraduates. Although he continued to support his alma mater, Sewall had a hand in creating Yale, in part to counter the spiritual decline he had observed at Harvard. Sewall’s diary also reveals that he could judge others somewhat harshly. He thus justified staying away from a funeral of a man he described as “very debauched” and “atheistical.” Playing tricks on people on April  was another of Sewall’s pet peeves, about which he was likely to admonish the young. Sewall and his wife, Hannah, had fourteen children; only six survived to adulthood. Though Sewall’s diary says almost nothing about his wife of more than forty-five years, it reveals constant concern for the physical and spiritual health of his children, whom he regularly led in family devotions and for whom he requested the prayers of others. After Hannah died, in , Sewall married Abigail Tilley in , but she died the following year. Then, after fruitlessly courting Katherine Winthrop, the widow of Wait Still Winthrop, whom he had succeeded as chief justice, Sewall married Mary Gibbs, who survived him. Sewall’s best-known child, and the one in whom he took the most pride, was Joseph, who became pastor of the Old South Church and president of Harvard. Sewall died in  after a period of declining health. The day after he was interred, his pastor chose a passage from I Samuel, the prophet for whom Sewall had been named and who “judged Israel all the days of his life.” Like this prophet, Sewall’s primary qualifications were theological rather than legal, and his responsibilities mixed functions that would today be separate and divided among three branches of government. With the glaring exception of his work in the Salem witch trials, Sewall had shown himself to be worthy of the trust that others had placed in him.

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Chamberlain, N. H. Samuel Sewall and the World He Lived In. . nd ed. New York: Russell and Russell, . Francis, Richard. Judge Sewall’s Apology: The Salem Witch Trials and the Forming of an American Conscience. New York: Fourth Estate, . Hoffer, Peter C. The Salem Witchcraft Trials: A Legal History. Lawrence: University Press of Kansas, . Sewall, Samuel. Diary of Samuel Sewall, –.  vols. Boston: Massachusetts Historical Society, –. Winslow, Ola Elizabeth. Samuel Sewall of Boston. New York: Macmillan, .

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JAMES ALEXANDER Prophet of a Free Press

John D. Gordan III

F

RO M A C O N S T I T U T I O N A L and political perspective, no colonial case can compete in importance with the trial of New-York Weekly Journal printer John Peter Zenger in . Zenger, a German immigrant and commercially unsuccessful printer, is remembered, of course, as the defendant. Even more famous is his trial lawyer, Andrew Hamilton of Philadelphia, who has been immortalized for his stirring oratory and the acquittal he secured from the jury in the teeth of the oppressive law of seditious libel, which made any criticism of the government or its officials a criminal offense (and the more accurate the criticism, the more aggravated the offense and likely penalty). But behind both men looms a less-known figure of still greater importance—James Alexander. In the words of one eminent historian: Alexander, who should have been in the prisoner’s dock instead, served as [Zenger’s] counsel. It was Alexander who wrote the allegedly seditious articles in Zenger’s paper about Governor William Cosby. It was Alexander who reprinted in Zenger’s paper the essays from Cato’s Letters on freedom of speech and press and on libels. It was



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I John D. Gordan III Alexander who, when summarily disbarred in the pretrial stage of the case for accusing the presiding judge of bias, brought in Andrew Hamilton to argue the cause and provided him with a detailed brief of the argument that proved victorious. It was also Alexander who edited the famous account of the case that was reprinted so often and perpetuated the reputations of Zenger and Hamilton as heroes in the cause of freedom of the press. Finally, it was Alexander who was the first colonial figure to develop a philosophy of freedom of speech-and-press.

Hard as it is to imagine, New York City in  was even more politically tumultuous, and for its time just as diverse, as it is today. Then barely a hundred years old, it passed from its Dutch founders into English hands in , when Peter Stuyvesant surrendered New Amsterdam to four warships sent by the Duke of York to claim part of a huge grant of land from Maine to the Delaware Bay made to him by his brother, King Charles II. For the next fifty years, the British Province of New York survived the overthrow of King James II, Leisler’s Rebellion and the reinstitution of royal control by King William III, and the rise of the House of Hanover on the accession of King George I. Throughout, the Dutch remained, and for a long period they kept their land, their ways, and their influence. The Province of New York lived from trade, and it had complex economic and political relationships with London, other colonies on the East Coast, French Canada, and the all too nearby Indian tribes. Its government was headed by a royal governor, appointed and sent from London for relatively brief terms, who governed with a small council of locally influential individuals whom he appointed. An elected assembly legislated for the province, subject to royal veto in London. The s and s saw economic growth and a benign government under governors Robert Hunter and William Burnet. In  the assembly had formally established a court system by its seminal Act of Judicature, and with courts arose a need for properly trained lawyers. A tiny but prominent bar began to grow in New York City.

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With a legislature enacting laws, a public printer was also needed, and in  William Bradford of Philadelphia was appointed to a post he would hold for the next fifty years. In  he printed the first volume of laws for the province. He also published the New-York Gazette, for most of its tenure the only newspaper in New York and an organ of the government. Into this frontier territory came James Alexander, a Scot in his twenties (born in ) and a distant relative of the Scottish Earl of Stirling. Although little about his early life seems to be known—his career before and after his arrival in New York is not uniformly reported by historians—Alexander apparently had training as an engineer and may also have had training as a barrister at Gray’s Inn in London and been admitted to the bar before coming to New York in . Shortly after his arrival, Alexander’s industry and networking skills led to his appointment as surveyor general of East Jersey, and to the same position for West Jersey and New York soon thereafter. For much of his life he was deeply involved in organizing the affairs of the East Jersey Board of Proprietors and in protecting its interests against scheming officials in London and in adjoining colonies, whose boundaries were uncertain and whose claimants included squatters with competing titles or no titles at all. In  Alexander was admitted to practice law in New York, and in  he was appointed attorney general of New York. He served until , when he was appointed attorney general of New Jersey, where he served for four years. In New York he was active and successful in the supreme court, the highest court of general jurisdiction in the province, the vice admiralty court, which heard maritime cases, the mayor’s court, which heard mercantile cases, and the court of sessions, where criminal cases were heard before the mayor and aldermen. He was made a member of the Council of New York in , having earlier been appointed its deputy secretary. He also joined the Council of New Jersey in  or , the royal governors of both colonies being the same person but their governments otherwise separate. In  Alexander married a wealthy widow, Maria Provoost, by whom he had five children; she continued the mercantile business of her first

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husband while Alexander ran his own separately, growing in wealth and prominence. By marriage and other personal and professional relationships, Alexander developed extensive ties to the Livingston family and to Cadwalader Colden, a well-educated Scottish immigrant three years older than Alexander who served as New York surveyor general after Alexander and was also a member of the Governor’s Council. Alexander’s library was unrivaled in colonial New York, and he was generous in sharing his law books with other members of the profession. He was also one of the founders of the New York Society Library, which thrives today. Alexander is commonly regarded as the leading lawyer in colonial New York. According to Colden, Alexander was the most indefatigable worker he had ever known. William Smith Jr., author of The History of the Province of New-York, describes Alexander as “eminent in the law and equally distinguished for his humanity, generosity, great abilities and honorable stations.” He is said to have been a poor speaker, learned but not inspiring, who made up for these limitations by close reasoning and succinct presentations. Second only to him at the New York bar was William Smith Sr., a Renaissance man and father of the historian, who possessed “a voice that was ‘music,’ the language that ‘charms . . . moves the Passions with superior art and thro’ the fancy, penetrates the Heart.’” In New York’s factionalized politics Alexander was allied with a group led by Lewis Morris, who was from an old, wealthy family (with its seat at Morrisania, in Westchester County) and who had served as chief justice of New York Province since . Arrayed against them were the rich and powerful DeLancey, Philipse, and Schuyler families; Alexander and Colden displaced representatives of the latter two landed families when Governor Burnet appointed them to the council. The two groups fought each other for control of the increasingly important assembly and its patronage opportunities. The Morrisite party commanded the support of middle-class merchants and farmers and the Dutch, who wanted to develop a local economy. Its opponents were the largest landowners and merchants, interested in promoting international trade.

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In  William Cosby was appointed royal governor, apparently on the strength of his wife’s family connections. Detractors described Cosby as a man of limited education who lacked prudence and intelligence and did not distinguish between power and right. Said one: “He was avaricious, and his only idea of diplomacy was superior force. His disposition was haughty and pompous, and he was possessed of a violent temper.” In contrast to his benign immediate predecessors, he viewed his position as a smash-and-grab opportunity for self-enrichment, and he set out aggressively to accomplish it. Cosby’s behavior alienated many prominent residents of New York, and soon they coalesced into the so-called Country Party, led by Morris and Alexander. Cosby led the Court Party, assisted by the DeLanceys and the Philipses, Francis Harison, and a newly arrived ne’er-do-well lawyer from London, Daniel Horsmanden, whom Cosby added to the council. Not long after his arrival, Cosby demanded from Rip Van Dam, the senior council member who had acted as governor pending Cosby’s arrival, half his salary during that period. When Van Dam refused, Cosby was determined to sue him. As his claim was equitable, it belonged in chancery, but the governor was the chancellor, and Cosby could not be the judge in his own case. Egged on by James DeLancey, a council member and second justice of the supreme court, in December  Cosby had the council confer by ordinance exchequer jurisdiction on the supreme court to allow it to sit in equity without a jury. Alexander, though nominally still a council member, had not been invited to its meetings since September. Cosby’s suit was opposed by Alexander and William Smith Sr., Van Dam’s lawyers, who denied the validity of the jurisdiction. Chief Justice Morris rejected the jurisdiction, but DeLancey and Philipse, the second and third justices, upheld it. Cosby then fired Morris as chief justice. In the spring of , Alexander and Smith denounced the exchequer jurisdiction in the assembly and, at the request of the assembly, printed an opinion in support of their position which was widely disseminated. This was followed by another attack, drafted by Alexander in Van Dam’s name, against Cosby’s overall conduct as governor. Cosby’s suit against Van Dam withered away.

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Meanwhile, in November  Alexander had founded the first opposition newspaper in America, the New-York Weekly Journal, printed by John Peter Zenger but paid for by the Morrisite party. Writing anonymously in the Weekly Journal, Alexander heaped criticism on Cosby, who chafed under the deluge of invective. His adherents, probably Harison and Horsmanden, published anonymous rebuttals in Bradford’s NewYork Gazette. In January  Chief Justice DeLancey charged the grand jury on seditious libels, but it took no action against Zenger. In October, DeLancey tried again, this time pointing specifically to doggerel ballads Zenger had printed in celebration of the recent success of the Country Party in the September election of aldermen to the city’s common council. The grand jury obliged by returning a presentment against the ballads but declined to indict any individuals. Two days later, the council proposed that the assembly concur in the public burning of four issues of the Weekly Journal; but the assembly took no action and returned the request to the council. The council then demanded that the common council direct the burning of the four offensive issues, which it refused to do, so the burning was carried out by a servant of the Cosbyite sheriff. Finally, on November , , the council ordered Zenger’s arrest, which the sheriff carried out. A writ of habeas corpus was immediately taken out for Zenger by his counsel, Alexander and Smith, to obtain his release on reasonable bail. DeLancey retaliated by demanding £ bail and two sureties at £ each, although Zenger had only £ to his name. Zenger stayed in jail until his trial was over, earning him the sympathy of the citizenry and avoiding risks of bail forfeiture for his Morrisite employers. Zenger’s wife continued to publish the Weekly Journal, supported behind the scenes by Alexander. For a third time, the grand jury refused to indict Zenger, but to prevent his immediate release from jail, the state attorney general issued his own charge against Zenger for seditious libel on January , . Several issues of the Weekly Journal were singled out as containing seditious libel: the first said that the people of the province believed that “their liberties and their properties are precarious and that slavery is likely to be entailed on them and their posterity,” alleged in the information as re-

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ferring to Cosby’s conduct as governor; the second said that substantial people were moving to Pennsylvania because in New York they saw “Judges arbitrarily displaced, new courts erected without Consent of the Legislature, by which it seems to me, Tryals by Juries are taken away when a Governour pleases. . . . Who is then in that Province that call any Thing his own, or enjoy any liberty, longer than those in the administration will condescend to let them do it.” The initial turning point in the case came on April , , when Zenger’s counsel filed exceptions challenging the validity of the judicial commissions of Chief Justice DeLancey and Justice Philipse on several grounds, first among them that the express term of their appointment by Governor Cosby was “only during [his] pleasure; whereas that authority (by a statute in that case made and provided) ought to be granted during good behavior.” DeLancey warned Alexander and Smith to “consider the consequences of what they offered” and when they insisted on the exceptions, adjourned the case until the following day, when in open court he told Smith he would not consider them. DeLancey continued: “[Y]ou thought to have gained a great deal of applause and popularity by opposing this Court, as you did the Court of Exchequer; but you have brought it to the point that either we must go from the bench, or you from the bar: Therefore we exclude you and Mr. Alexander from the bar.” He then delivered an order disbarring Alexander and Smith for contempt of court and he refused to hear them further. John Chambers, a young lawyer who with the passage of time became John Jay’s uncle and a justice of the state supreme court from  to , was appointed to represent Zenger. Although suspected of being a partisan of Cosby, at the opening of trial on August , , Chambers provided the next turning point in the prosecution—catching the sheriff manipulating the order of prospective jurors on the venire panel. This was too blatant, once it was made out in open court, for even a partisan like DeLancey, who told Chambers, “you shall be righted” and required that the jurors be seated in the order of their selection. Then came the third and most important turning point—the sudden appearance of Andrew Hamilton of Philadelphia as counsel for Zenger. Speaker of the Assembly of Pennsylvania during the s, he had been that state’s attorney general from  to  and was singled

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out by Pennsylvania chief justice Tilghman as one of the earliest “men of strong minds, very well able to conduct the business of the Courts, without much regard to form.” Historian William Smith Jr. said of Hamilton: “He had art, eloquence, vivacity, and humour, was ambitious of fame, negligent of nothing to ensure success, and possessed a confidence which no terrors could awe.” He was then fifty-nine years old, almost twice the age of the presiding chief justice. The trial itself, on August , , took less than a day and was scarcely a trial at all. After the attorney general opened his case, Hamilton conceded that Zenger had published the offending articles. The attorney general assumed the concession ended the case in his favor, but Hamilton, pointing to the allegation in the information that the alleged libels were false, insisted on the right to prove they were true. The court, after some debate, overruled his contention that truth was a defense, and Hamilton and the attorney general then gave their closing arguments to the jury. Hamilton finished his summation to the jury on a high note: “[T]he question is not the cause of a poor printer, nor of New York alone, which you are now trying: No! It may in its consequence affect every free man that lives under a British government in the main of America. It is the best cause. It is the cause of liberty.” After the briefest of instructions from DeLancey and a “small time” for deliberation, the jury acquitted Zenger. Historian Smith noted how Hamilton was able to “artfully convert the guilty nakedness of the cause of his client into a defense . . . recapitulate the passages in the journals supposed to have given umbrage to the government . . . [and offer] artful allusions to past events which the auditors had read or heard and believed to be true.” Hamilton further led the jury to believe “they were triers of their rulers rather than Zenger” and to pronounce “the criminal innocent because they believed [the government] to be guilty.” Horace Binney, a great advocate in Philadelphia in the next century, offered this characterization of Hamilton’s argument: He merely claimed to liberate the jury from the authority of some disagreeable law, and of an obnoxious Court hold-

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ing its appointment from the [governor]. No lawyer can read that argument without perceiving, that, while it was a spirited and vigorous, though rather overbearing, harangue, which carried the jury away from the instruction of the Court, and from the established law of both the Colony and the Mother Country, he argued elaborately what was not law anywhere, with the same confidence as he did the better points of his case . . . and, in spite of the Court, the jury believed him, and acquitted his client. The Zenger episode has achieved iconic status in First Amendment thought, which it deserves, and more. Hamilton’s brief had been prepared by Alexander, and its aggressive assertion of free speech echoed what Alexander had written in the Weekly Journal. But freedom of speech was not the only principle later enshrined in the Constitution and laws of the United States that Alexander anticipated. Alexander was not merely a “defender of the rule of law,” he was a creator of the rule of law. In that lies his genius and his legacy. Obviously, freedom of speech holds first claim on the Zenger case. It emerged in the second issue of the Weekly Journal, couched in terms of “liberty of the press.” His argument for its indispensability relied on the need to deal with “wicked ministers” beyond the immediate reach of ordinary sanctions: “let him yet receive the lash of satire, let the glaring truths of his ill administration, if possible, awaken his conscience, and if he has no conscience, rouse his fear by showing him his deserts, sting him with the dread of punishment, cover him with shame, and render his actions odious to all honest minds.” In the next issue, Alexander wrote, “In short, I think, every man of common sense will judge that he is an enemy of his king and country who pleads for any restraint upon the press . . . to grant a liberty only for praise, flattery and panegyric, with a restraint on everything which happens to be offensive or disagreeable to those who are at any time in power, is absurd, servile and ridiculous.” Adopting his own arguments as a plan of action, Alexander leveled his battery of satire against Cosby again and again. After Zenger’s trial, Alexander published the proceedings in pamphlet form in June .

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The following year, the Pennsylvania Gazette printed his ringing paean to the importance of free speech: “Sir,     is a principal pillar in a free government: when this support is taken away the Constitution is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of Magistrates.” A corollary principle was that truth should be a defense to any charge of libel. Alexander’s brief for the Zenger trial contained proof as to the truth of the statements Zenger was prosecuted for printing. But the law of the time was clear that truth was no defense to seditious libel, the theory being that what was both defamatory and true was more injurious to government than a lie. Chief Justice DeLancey was following established precedent in excluding the evidence of truth Hamilton wanted to offer. But Hamilton, great lawyer that he was, simply turned DeLancey’s adverse ruling into a weapon with the jury: [G]entlemen of the jury, it is to you we must now appeal for witnesses to the truth of the facts we have offered and are denied liberty to prove. . . . The law supposes you to be summoned out of the neighborhood where the fact is alleged to be committed; and the reason of your being taken out of the neighborhood is because you are supposed to have the best knowledge of the fact that is to be tried. . . . [A]nd, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety. And as we are denied the liberty of giving evidence to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases, that the suppressing of evidence ought always to be taken for the strongest evidence. Hamilton’s appeal to the jury in the teeth of established law had its roots in a seditious libel trial that took place eighty-five years before the Zenger trial. In October  John Lilburne, known as Free-Born John and the leader of the Levellers, went on trial for his life in London under newly minted treason statutes prohibiting seditious publications. An in-

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defatigable and eloquent pamphleteer, Lilburne was once allied with Oliver Cromwell in early opposition to King Charles I but had become his most implacable opponent, condemning the victorious Cromwell and his army in such inflammatory publications as Englands New Chains discovered, and An Impeachment of High Treason against Oliver Cromwell. Speaking about Lilburne, Cromwell insisted that “you have no other Way to deale with these men but to break them in pieces.” The court of oyer and terminer specially commissioned to try Lilburne was intended for just that purpose. Lilburne’s trial took several days and resulted in Lilburne’s triumphant acquittal by the jury. The trial proceedings were promptly published in successive pamphlets by Lilburne adherents. They record Lilburne’s initial lengthy diatribe against both his imprisonment and his mistreatment, denouncing the charges against him and challenging the legitimacy of the commission of the court in front of the venire from which the jury would be drawn. The balance of the trial record includes extensive readings from the offending publications, concluding arguments by Lilburne and the attorney general, and the charge of the court. In the course of his closing argument, Lilburne addressed the jury as “my Countrymen, upon whose conscience, integrity and honesty, my life and the Lives and Liberties of the honest men of this Nation now lyes, who are in Law Judges of Law as well as Fact.” When presiding Lord Keble claimed for the court the role of judges of the law, Lilburne responded: “The Jury by Law are not onely Judges of Fact, but of Law also, and you that call your selves Judges of the Law, are no more than norman intruders, and indeed and in truth, if the Jury please, are no more than Cifers, to pronounce their Verdict.” Judge Jermin asked, “Was there ever such a damnable blasphemous heresie as this is, to call the Judges of the Law Cifers?” Lilburne later repeated much the same words at the end of his closing, informing the judges they were no more than the jury’s “clerks.” In addition to the popular pamphlets that issued immediately after Lilburne’s trial, his trial was collected and reprinted in the massive fourvolume folio, State Trials, published in London in . No doubt by  this was available in New York, and certainly the aggressive pamphleteer Lilburne had found an erudite successor in Alexander. Lilburne’s

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assertion found a new voice in Andrew Hamilton’s argument to the jury at the Zenger trial: “I must insist that where matter of law is complicated with matter of fact, the jury have the right to determine both.” Although DeLancey and Hamilton had sparred earlier at the trial about the special rule for judges and juries in seditious libel cases, Hamilton’s argument to the jury was more fundamental and broader based, and Zenger is likely its first articulation in this country. By the time the Constitution was ratified it was a settled principle here, and juries were instructed that they were judges of both fact and law. It was not until  that the U.S. Supreme Court reverted to the definitive separation of the powers of court and jury. And even now jury nullification remains a significant, if subliminal, element of the judicial process. Henry Noble MacCracken, Alexander’s biographer, quotes an additional idea contained in his writing: “To secure well that foundation, liberty, we have not far to seek. . . . We see there the mere process of government, all in perfection, each independent of the other, and balancing and checking the other two parts: the King to execute the laws and preserve the peace; the council of the best men of the province; the last part, with free and frequent elections of the assembly, the democratic part, to make the laws as representatives of the people.” The vision of this writing—enunciating the need for separation of powers and checks and balances—would become central concepts of our Constitution. An aspect of that concept even played a central role in the Zenger prosecution. The attack Alexander and Smith made on the commissions of DeLancey and Philipse singled out their tenure as “during pleasure,” a hated practice of the Stuart kings of England that King William III had abolished in the Act of Settlement in . In the September , , edition of the Weekly Journal—one of the four editions ultimately burned—Alexander had condemned the hearing of disputes “before a governor and judges of his own making, and who are made to believe it is in his power to displace them at his pleasure, and consequently all concerned to support that support that maintains them.” Indeed, a theme in Alexander’s writings and in Hamilton’s argument at trial was that Cosby and the prosecution accorded the governor all the prerogatives of the king, which he was not, without the constitutional constraints that circumscribed royal authority.

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The concept of judicial independence as a necessity for the administration of justice was carried forward into the Constitution of the United States. Not only does Article III adopt the words “during good behavior” to the terms of federal judges, its supporters virtually paraphrased Alexander’s words in urging its ratification. In The Federalist (no. ), Alexander Hamilton argued: “Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it.” Alexander and Smith were quick to complain of their disbarment to the assembly, which directed the judges to reply but then adjourned to the end of March . Early that month, Cosby suddenly died, having been stricken with pleurisy the preceding November. In September  Alexander was elected to the assembly for a two-year term, along with Smith and the son of former Chief Justice Morris, and in  Alexander and Smith were reinstated to the bar. Alexander knew Benjamin Franklin and, at his invitation, had been the first New Yorker to join the American Philosophical Society. As Franklin’s friend, Alexander encouraged the first effort, in , to unite the provinces into what would become a free nation some twenty years later. While Franklin proceeded to Albany in  to the Congress of the Commissioners for the Different Colonies and the Chiefs of the Six Nations, he had prepared a plan for a unified government and defense of all colonies. According to Franklin’s Autobiography: As we pass’d thro’ New York, I had there shown my Project to Mr James Alexander & Mr Kennedy, two Gentlemen of great Knowledge in public Affairs, and being fortified by their Approbation I ventur’d to lay it before the Congress. *** [T]he Plan was unanimously agreed to, and Copies ordered to be transmitted to the Board of Trade and to the Assemblies of the several Provinces. Its Fate was singular. The

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I John D. Gordan III Assemblies did not adopt it, as they all thought there was too much Prerogative in it; and in England it was judg’d to have too much of the Democratic: The Board of Trade therefore did not approve of it; nor recommend it for the Approbation of his Majesty[.]

Alexander died soon thereafter, in . His only surviving son, William, continued his father’s struggle for unity and freedom as a major general in the Continental Army, distinguishing himself under George Washington’s command at the battles of Long Island, Brandywine, Germantown, and Monmouth from  to .

  Alexander, James. A Brief Narrative of the Case and Trial of John Peter Zenger, Printer of the New York Weekly Journal, by James Alexander. Edited by Stanley N. Katz. nd ed. Cambridge, MA: Belknap Press, . Botein, Stephen, ed. “Mr. Zenger’s Malice and Falshood”: Six Issues of the New-York Weekly Journal, –. Worcester, MA: American Antiquarian Society, . Finkelman, Paul. “Politics, the Press, and the Law: The Trial of John Peter Zenger.” In American Political Trials, edited by Michal R. Belknap, –. Rev. ed. Westport, CT: Praeger, . Levy, Leonard W. Emergence of a Free Press. New York: Oxford University Press, . MacCracken, Henry Noble. Prologue to Independence: The Trials of James Alexander, American, –. New York: J. H. Heineman, .

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LEMUEL SHAW The Shaping of State Law

Paul Finkelman

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E M U E L S H AW S E RV E D A S chief justice of the Massachusetts Supreme Judicial Court from  until . In that period he was the most important state judge in the nation. Indeed, in a century when state courts were far more important than they are today, and often more important than federal courts, Shaw had no rival. In the pantheon of state judges, he is flanked by Virginia’s St. George Tucker and New York’s James Kent, Michigan’s Thomas Cooley, and Oliver Wendell Holmes Jr., who held the same seat as Shaw in the late s. Unlike the other great state jurists, however, Shaw never wrote a legal treatise or produced legal scholarship. While Tucker, Kent, Cooley, and Holmes were as important for their scholarship as for their decisions, Shaw wrote opinions more than two thousand opinions in an age without typewriters, computers, or clerks to do the drafting. Often, his rulings became law throughout the nation. Shaw was born on Cape Cod, the son of Rev. Oakes Shaw, a Congregational minister, and Susanna Hayward Shaw. He was schooled by his father until age fifteen, when he enrolled at Harvard. Four years later, he was a Phi Beta Kappa graduate of the college. After graduation he briefly taught school, and during the election of  he worked for



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the Boston Gazette, a Federalist Party newspaper. Like most Bostonians, and most Harvard graduates, Shaw was a staunch supporter of John Adams and the Federalist Party. From August  until September , he read law under David Everett, first in Boston and later in New Hampshire. In late  he was admitted to the New Hampshire and Massachusetts bars, and from  until  Shaw practiced law in Boston. He also served as a justice of the peace (), a member of the Massachusetts house (–, –, ), and a state senator (–). In  he was a delegate to the state constitutional convention, and at the end of that decade he was president of the Suffolk County bar. While in the Massachusetts house in –, Shaw successfully managed the impeachment trial of probate judge James Prescott, who was defended by Daniel Webster. While in the state senate in  Shaw served as a commissioner to revise the state’s statutes. In  he also wrote Boston’s first city charter, which remained in effect until . By the mid-s Shaw was a leading attorney in Boston, earning the very large sum of $, to $, a year. Though he was not known as a great trial practitioner, his reputation and rising income came from his ability as a corporate attorney, giving advice to the emerging financial, commercial, manufacturing, and transportation interests in Massachusetts. Shaw was not only chief counsel and a director of the New England Bank, he invested in banks, insurance companies, and other commercial enterprises. In  he reluctantly agreed to become chief justice of the Massachusetts Supreme Judicial Court at the dramatically lower salary of $, a year. Daniel Webster later claimed that his greatest service to Massachusetts was persuading Shaw to accept this post. From the moment he put on his robes, the new chief justice dominated the court—which quickly became known as the Shaw Court. His physical appearance seemed to be a manifestation of judicial power: his massive body and large head combined to give the impression that he personified the majesty of his office while his lined face suggested a seriousness that underscored the force of his logic. His domination of the court was intellectual as well, as he wrote over twenty-one hundred opinions and participated in thousands of other cases. But there were

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only three times that he felt compelled to write a dissent. His associates on the bench also rarely dissented. In his fifty major opinions dealing with state constitutional law, Shaw spoke for a unanimous court fortyseven times. Shaw was respected, almost revered, by his colleagues on the bench and bar. One colleague described a debate over the election of judges as a discussion of “whether Chief-Justice Shaw is a divine institution or a human contrivance.” Noted attorney Rufus Choate, who was often rebuffed by Shaw, advised a fellow attorney not to respond to the chief justice in anger or haste, because “with him, and under him, life, liberty, and property are safe.” Support, indeed reverence, for Shaw was not ideological. Jacksonians, who were inclined to reject Shaw’s Federalist-Whig politics, nevertheless respected him, in part because his jurisprudence was neither ideological nor predictable. Shaw’s three decades on the Massachusetts bench coincided with dramatic changes in the national economy, with Massachusetts developing into one of the nation’s most industrialized states as the law accommodated new national economic and social realities. Massachusetts was the leader in this legal change in part because of its growing manufacturing sector and in part because of Shaw, whose decisions helped shape the new legal regime. Many of Shaw’s most important decisions focused on railroad law, the law of industrial accidents, and labor law. But Shaw’s court also faced such important noneconomic issues as separation of church and state, the insanity defense, school segregation, slavery, and fugitive slave laws. Shaw’s decisions often typified the instrumentalist role of antebellum jurists who used common-law reasoning to facilitate the transformation of the American economy from agrarian to industrial. Shaw’s decisions were generally consistent with his personal and political ties to the manufacturing and commercial interests of Massachusetts, though they were not doctrinally or jurisprudentially conservative. In cases involving business issues, he did not rely on precedent, doctrine, or procedural technicalities but instead considered emerging issues of industrialization and the massive growth of corporations with logic, reason, common sense, and a utilitarian approach to economic and social development. Despite his conservative background, Shaw did not see his role as protecting vested property interests from the legislature or from

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competition. On the contrary, especially in his expansive interpretation of the concept of public use, the police power, and the power of eminent domain, Shaw supported legislative and private initiatives to foster new industries at the expense of older technologies and more traditional users of water and land resources. On the other hand, in political and social cases involving churchstate relations, blasphemy, race relations, and slavery, Shaw’s conservatism became apparent. Since he was a socially conservative son of a minister, it is perhaps not surprising that Shaw upheld the nation’s last blasphemy conviction in Commonwealth v. Kneeland in . Though Kneeland was a radical Jacksonian and Shaw a conservative Whig who helped lead the opposition to Jackson in , political affiliation did not dictate the outcome of this case—but it dovetailed perfectly with the result. Similarly, Shaw’s active participation in the Unitarian Church and his strong belief in public morality coincided with his ruling in favor of the Unitarian plaintiffs and the continuation of an established church in Massachusetts in the  case of Stebbins v. Jennings. Shaw’s social background no doubt blinded him to the inequality of segregated schools and allowed for his  decision upholding Boston’s maintenance of segregated schools in Roberts v. Boston. Here his wisdom failed him, and he wrote a cynical decision that would later be exploited by advocates of segregation. He did not need to reach this decision—upholding school segregation—since nothing in the Massachusetts constitution or state statutes dictated such a result, and language in the state constitution could logically have led to a different result. His absolute refusal to offer the protection of due process to persons seized as fugitive slaves was consistent with his Federalist-Whig reverence for the Constitution and the antipathy toward abolitionists common among most elite Bostonians. On the other hand, Shaw’s conservatism also led to his one profoundly antislavery decision, Commonwealth v. Aves, an  case in which he held that slaves brought to Massachusetts by their owners became instantly free. This decision was based on Shaw’s notion that slavery was illegal in Massachusetts and that except for fugitive slaves, whose status was covered by the U.S. Constitution, no one could be enslaved in the state.

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Shaw’s most important contributions came in areas of law affecting torts, industrialization, and race relations. In all three areas, Shaw’s decisions became precedents for antebellum jurists throughout the nation. Moreover, Shaw’s influence extended beyond his era. Well into the twentieth century some concepts articulated by Shaw continued to influence courts and legislatures. In cases involving economic regulation, Shaw usually deferred to legislative initiatives, which were often aimed at helping developing industries and technologies. In these cases Shaw helped transform the nature of property rights in America by overriding vested rights of individuals. Shaw did not interpose the court as the protector of vested property rights. On the contrary, his decisions encouraged the state government to actively alter property relationships in Massachusetts. Shaw consistently held that the police power of the state, combined with the power of eminent domain, gave the legislature authority to regulate private property in any way that might be beneficial to the state. The precedents set by Shaw in supporting this kind of legislation were followed throughout the nation. A key case on the police power of the state was Commonwealth v. Alger, decided in . Alger was prosecuted for extending his wharf beyond a limit set by the legislature. Alger claimed that he owned his property under a  grant and statute designed to enable coastal landowners to build wharves and docks. Alger’s attorney, Benjamin R. Curtis (who would go on to serve on the U.S. Supreme Court), argued that the statute under which Alger was prosecuted violated his contractual and property rights. Furthermore, Curtis argued, and the state conceded, that Alger’s wharf did not interfere with navigation. Therefore, Curtis asserted that the statute was an unconstitutional violation of Alger’s rights. Shaw answered these assertions with “a majestic statement on the paramountcy of public over property rights.” He declared that “every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated . . . and held subject to those general regulations, which are necessary to the common good and general welfare.” Shaw found that rights

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of property, “like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment . . . as the legislature, under the governing and controlling power vested in them by the constitution may think necessary and expedient.” Shaw found that this was not a taking, for which compensation would be required, but rather a mere limitation on the use of property. Shaw’s opinion in Alger was widely cited and followed. In Alger and similar cases, Shaw upheld the power of the state to limit the use of private property. Equally important were his decisions allowing privately owned industries to harm the property rights of others, either permanently or through a diminution of its value. If Shaw found that the overall public good was served by such action, he usually allowed it. One example of Shaw’s jurisprudence in this area concerns the application of the so-called mill-dam acts to iron mills and textile factories. Preindustrial mill acts had allowed grist mills, lumber mills, and similar manufacturers to dam up small streams and flood nearby farmlands on the theory that such mills were both a necessity and a scarce public resource. Courts and legislatures believed that the value of such mills to farmers outstripped any loss they may have suffered, because without the grist mill a farmer could not bring his crop to market. By the s newer technologies such as textile factories and iron mills received legislative permission to flood larger streams and rivers, often permanently destroying the value of nearby farms. Opponents of these acts vainly argued that such laws were “not a matter of public convenience and necessity, but of private speculation.” It was clear that the farmer whose land was flooded did not benefit from a textile mill the way he might have from a grist mill. Shaw, however, consistently held for the newer technologies. Shaw did not look at the immediate beneficiaries, or victims, of a mill dam. Rather, he looked to the greater gains for the entire society. Shaw’s jurisprudence consistently favored economic development, even if preexisting users of land and water resources might be harmed in the process. Hazen v. Essex Co., decided in , illustrates Shaw’s approach to economic development. He held that “[t]he establishment of a great millpower for manufacturing purposes, as an object of great public interest,

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especially since manufacturing has come to be one of the great public industrial pursuits of the commonwealth, seems to have been regarded by the legislature and sanctioned by the jurisprudence of the commonwealth, and, in our judgment, rightly so, in determining what is a public use, justifying the exercise of the right of eminent domain.” Applying this logic in other cases, Shaw favored newer technologies and industries and allowed older participants in the market place to be quite literally washed away. Shaw’s willingness to support new technologies was not limited to factories; he also viewed railroads as vital to the new economy. Shaw aided railroad development with opinions that limited their liability for nuisances and injuries. Interpreting railroad charters for the benefit of the industry, Shaw held that because they served the public good railroads were immune from private suit for nuisance. Thus, when the city of Boston closed a major business street to facilitate the extension of railroad tracks owned by a private railroad company, Shaw would not allow merchants to recover from the railroad for losses to their businesses. The railroad was deemed public rather than private, and thus was immune from suit as a nuisance. Similarly, Shaw altered the common law rules of liability for common carriers to make railroads immune for nonnegligent losses of goods after they arrived at their destination but before they had been removed from the railroad’s warehouse. Here Shaw clearly favored railroads at the expense of shippers. Shaw also favored railroads in fatal accidents. Although given the opportunity to develop new doctrine and to mold the common law to new circumstances, he refused to alter the traditional rule that barred recovery in wrongfuldeath actions. Thus, railroads might be held liable for injuring persons, but if they killed them, they would not be liable. Shaw also favored railroads at the expense of their workers. In Farwell v. Boston and Worcester Railroad (), Shaw held that a railroad engineer, injured by the negligence of a railroad switchman, could not sue the railroad. Instead, in what became known as the fellow-servant rule, Shaw held that the injured engineer could sue only the switchman, his “fellow servant.” When applied to the growing number of industrial accidents across the nation, this rule meant that the vast majority of injured workers could never be compensated for their work-related injuries because

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their negligent fellow workers had no assets. Thus, Mr. Farwell was left with a crushed hand and no compensation for his loss. Shaw’s Farwell opinion reflected a thoroughly unrealistic assessment of working conditions in America’s emerging industries, as he argued that Farwell should have observed the work of his fellow servant to make sure it was done properly. However, to do that Farwell would have had to stop his train at every switch, which would have destroyed the efficiency of the railroad. The easy explanation for this result is that Shaw wanted to shift the cost of industrial accidents from stockholders and corporations to the injured workers themselves. However, this analysis may be too cynical. More likely, this seems to be a case in which Shaw’s opinion is simply inconsistent with his usually sophisticated understanding of business and industrial change. Farwell had a profound affect on the law of industrial accidents. With a few exceptions, the precedent was accepted throughout the United States, and to this day it is good law in many jurisdictions. The harsh result of Farwell—that workers injured on the job have no recourse— has been partially overcome by workers’ compensation laws and insurance programs. Farwell was predicated on a notion of fault—that the injured party should recover from the person who directly caused the injury and not from management that failed to supervise the workplace. This concept of fault reemerged in Shaw’s famous decision in Brown v. Kendall (). There Shaw is credited with developing the modern fault principle and the concept of contributory negligence in tort cases, requiring that people be prudent and careful in their activities. Those who were not could not expect to recover damages. While Kendall involved private parties, the principle of fault and contributory negligence was beneficial to emerging industries. Indeed, the roots of Kendall can be found in his  opinion in Sproul v. Hemmingway, a ship collision case in which Shaw held that a nonnegligent defendant was not liable for damages caused by his ship. Shaw was not always prorailroad or antilabor. He enforced statutes and ordinances requiring railroads to operate in a safe manner. In  he upheld the largest monetary damages awarded up to that time against a railroad, and he consistently upheld the right of the state to regulate

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railroads in a variety of ways. Shaw also wrote the opinion in Commonwealth v. Hunt (), which has been called, with much exaggeration, the magna carta of labor law. Before this decision labor unions had almost always been considered criminal conspiracies. As Shaw did in so many other areas of the law, he ignored precedent, looked at the case with a fresh view, and came to a remarkably fresh result. Hunt was the head of a bootmakers’ union that forced an employer to fire a laborer who would neither join the union nor follow its rules. The laborer complained to the district attorney, who charged Hunt with criminal conspiracy. It took a Boston jury only twenty minutes to convict Hunt. On appeal Shaw noted that Hunt and other union members had organized to persuade all of their fellow workers to join the union. They also threatened to quit if the employer hired someone who was not in the union. Shaw concluded that the workers’ goal—to gain members for their union—was “not unlawful,” nor was their ultimate goal of higher wages and better working conditions. Finally, Shaw held that their tactic of refusing to work with nonunion laborers was also not illegal. If workers had a right to withdraw their labor individually, then they had a right to do so collectively as well. Because the union had not used force or violence, it had broken no laws. Commonwealth v. Hunt was the first Anglo-American decision to reject the traditional notion that labor unions and strikers were unlawful conspiracies. However, the use of injunctions later in the century undermined much of the value of this precedent. Industrialization was one of two major issues that Shaw faced. Shaw also decided a number of cases on the other “great issue” of the age: slavery and race. Shaw wrote precedent-setting opinions in cases on the rights of slave owners to bring their human property into the North, the validity of the federal fugitive slave law and the duty of Northerners to enforce it, and the rights of free blacks in the North. Like most northerners, Shaw found slavery abhorrent. Before joining the court, he publicly denounced the African slave trade. During the Missouri crisis he argued that slavery contradicted American ideals, but he also admitted that it was a “necessary” evil “too deeply interwoven in the texture of society to be wholly or speedily eradicated.” Although Shaw thought slavery was wrong, he also regarded abolitionists as dangerous

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agitators who threatened the Union. Moreover, Shaw had little sympathy for free blacks, and he had no desire to see millions of ex-slaves become part of the American polity. In Commonwealth v. Aves (), Shaw held that a slave brought into Massachusetts became immediately free. Aves involved a six-year-old slave girl named Med, who was brought to Massachusetts by her owner’s wife, Mrs. Mary Aves Slater. At the time Mrs. Slater was visiting her father, Thomas Aves. A writ of habeas corpus directed at Aves brought the question of Med’s status before the Massachusetts Supreme Judicial Court. Shaw had no doubt that Med was free, although he was uncertain whether this was a result of the British precedent of Somerset v. Stewart (), the Declaration of Independence, or the Massachusetts Constitution of . Whichever source of law he used—and he ultimately found the  constitution to be the most convenient—Shaw found that “slavery was abolished in Massachusetts, upon the ground that it is contrary to natural right and the plain principles of justice.” Finding no positive law allowing Med’s enslavement, Shaw freed her. Shaw reaffirmed his holding in Aves in a number of subsequent cases. Aves was cited throughout the nation in the next twenty-four years— by  all but three or four northern states had adopted its principles— and it became a key precedent in the development of a law of freedom in the North. In the antebellum period, Aves stood along with Lord Mansfield’s opinion in Somerset as one of the cornerstones of antislavery constitutional thought and theory. Shaw’s opinion in Aves suggests the flexibility of his conservative unionism and his strong support for the U.S. Constitution. At the time he decided this case, a number of slave states, including Louisiana, had already declared that slaves brought to free states became free. Between  and , judges in Missouri, Kentucky, Louisiana, and Mississippi had all applied the Somerset principle to their states. Thus, Shaw might have assumed that his decision would not be seen as an assault on slavery by the southern states. But Shaw was smart enough to understand that the rise of radical abolitionism in the early s had altered the political and legal landscape of the nation. As a strong Unionist and a nationalist, Shaw might easily have refused to free Med. He might have accepted the argument that Massachusetts should grant comity to

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Louisiana—and not liberate a visiting slave—just as Louisiana might grant comity to Massachusetts by emancipating a slave who had lived in the Bay State. He might also have softened the decision by freeing Med but then returning her to Mrs. Slater on the theory that he could trust Louisiana to preserve Med’s freedom or by finding that the Slaters, as the owners of Med’s mother, were the proper guardians for Med. This would have supported both the law of Massachusetts and interstate harmony. Such a decision would have infuriated abolitionists, but Shaw surely had no love for abolitionists or radicals of any kind. But Shaw did not follow that route. Instead, he rigidly supported freedom and discounted any stress such an outcome might have on the Union. Where the Constitution allowed him to support freedom, Shaw was firm in his opposition to slavery. But would the Constitution allow him to emancipate fugitive slaves, as opposed to slaves voluntarily brought to Massachusetts by visitors? Shortly after Aves, Shaw heard his first fugitive slave case, which involved two women, alleged to be fugitive slaves, who were traveling on the Chickasaw, a ship that sailed to Boston. When the Chickasaw entered Boston, the ship’s captain detained the two women at the request of a man named Turner, who represented himself as the agent of their owner. While Turner waited for proof of ownership from their alleged master, a group of blacks obtained a writ of habeas corpus from Shaw. After hearing evidence, Shaw ordered the women released because the Chickasaw’s captain had no authority to incarcerate them. And before Turner could have them arrested under the Fugitive Slave Act of , the women were whisked away to freedom. Shaw’s actions in this case do not indicate whether he intended to free the two women or merely to ensure that they were not unlawfully incarcerated until there could be a proper hearing under the federal law of . Shaw clearly did not believe anyone could be held as a slave under Massachusetts law. This was consistent with his holding in Aves. Shaw had in fact limited his holding in Aves to cases involving slaves in transit, and he explicitly asserted that the right of a master to hold a fugitive slave was protected by the U.S. Constitution. After , when fugitive slaves came before Shaw, he rarely offered them protection or due process. In  Shaw refused to enforce a writ of habeas corpus

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that would have released the fugitive slave George Latimer from the custody of the local sheriff. Shaw might have acted under the recent Supreme Court decision in Prigg v. Pennsylvania (), which held that state jurists were not required to enforce the federal law. However, Shaw felt obligated to uphold the Constitution. In this case Shaw did not actually order Latimer returned to slavery. He simply refused to interfere with the rendition process. In  Shaw twice refused to intervene on behalf of fugitive slaves. In February Shaw rejected, on technical grounds, an application for a writ of habeas corpus for the fugitive slave Shadrach. Antislavery lawyers began working on a new, corrected application when a mob rescued Shadrach from federal custody and he fled to Canada. Shaw probably would not have issued the writ of habeas corpus because he believed that state courts should not interfere with the federal law. Later that year Shaw heard arguments asking for a similar writ for the fugitive slave Thomas Sims. In that case, Shaw wrote an elaborate twenty-page opinion, with an additional eight-and-a-half-page “note,” upholding the constitutionality of the recently adopted federal Fugitive Slave Act of . At this point no federal court had ruled on the validity of that law. Furthermore, although the law denied an alleged fugitive slave the right to a jury trial or the right to testify in his or her own behalf, Shaw found nothing unconstitutional about these provisions. In refusing to grant the writ to Sims, Shaw was able to avoid sending a fugitive back to slavery; he merely refused to interfere in the process. The last major fugitive slave case in Boston was the rendition of Anthony Burns in . At the time of the case the federal government rented facilities in the courthouse of the state’s supreme judicial court. While Burns was in custody federal officials ringed the courthouse with soldiers and federal deputies and placed heavy chains around the building. Chief Justice Shaw did not protest this visual example of the power of slavery in America, even as his own courthouse was encased in chains and the aged chief justice of Massachusetts was forced to stoop under them to enter his own chambers. While taking no part in the Burns rendition, Shaw publicly acquiesced in the national government’s show of military force.

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Besides the status of slaves, Shaw’s court twice ruled on the rights of free blacks. In Roberts v. Boston () Shaw upheld Boston’s segregated public schools. The antislavery attorney (and future U.S. senator) Charles Sumner argued that segregated schools were inherently unequal because they forced black children to travel extra distances to school, forced blacks to live in segregated neighborhoods near their schools, created a hereditary distinction based on race, and denied black children “Equality before the Law.” Shaw rejected these arguments, asserting that racial prejudice was neither caused nor abetted by segregated schools. Shaw found that black children had “access to a school, set apart for colored children, as well conducted in all respects, and as well fitted, in point of capacity and qualification of the instructors, to advance the education of children . . . as other primary schools.” Thus Shaw developed the concept of separate but equal nearly two decades before the adoption of the Fourteenth Amendment. While the precedent created by Shaw’s decision in Roberts would remain good law in much of the United States until the s, it did not remain so in Massachusetts for very long. In  the Massachusetts legislature prohibited segregated schools in the state. The state legislature’s quick action in overturning Shaw’s ruling illustrates that in this area of law, he was out of touch with the sentiments of his state. Shaw might easily have gone the other way in this case, but the outcome no doubt reflected his elite background and may also have reflected his hostility to abolitionists, who supported the litigation. In the  case of McCrea v. Marsh, Shaw’s court upheld the right of a theater owner to refuse to seat blacks. Shaw did not write the opinion in this case, but he agreed with it. The court ruled that the ticket was a “license legally revocable” at the discretion of the theater and that McCrea was entitled to recover for the value of the ticket and “all legal damages which he sustained by the breach of the contract implied by the sale and delivery of the ticket.” But for the second time in less than a decade, Shaw’s court upheld segregation in Boston, despite the fact that no law required it and that language in the Massachusetts constitution of  might have been used to reach the opposition conclusion. Sadly, Shaw did not see the law in this way. Rather, his decisions on

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slavery and race were conservative and cautious. Shaw’s vision of blind justice was clearly not color-blind. Before serving on the bench, Shaw was very involved in politics. He was, successively, a Federalist and a Whig, supporting each party until it collapsed. When he was appointed to the bench, his opponents called him a Federalist, but his judicial decisions do not cleanly track with any political movement of party. He was a conservative and a strong supporter of the Union and the national constitution, but even here his decisions are not always easy to classify. With the exception of serving on the Harvard Board of Overseers from  to , Shaw ceased all political activity while on the bench. After he resigned from the court in August , Shaw did not join the majority of his Boston neighbors and friends in supporting Lincoln and the Republican Party. Instead he supported the anachronistic Constitutional Union Party. On the eve of secession, when compromise was no longer plausible, Shaw still clung to the old formulas of sidestepping the problem of slavery to preserve the Union at any cost. Shaw died in , leaving a legacy as one of America’s most influential state court judges.

  Chase, Frederick H. Lemuel Shaw, Chief Justice of the Supreme Judicial Court of Massachusetts, –. Boston: Houghton Mifflin, . Finkelman, Paul. An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill: University of North Carolina Press, . Hurst, J. Willard. Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison: University of Wisconsin Press, . Levy, Leonard W. The Law of the Commonwealth and Chief Justice Shaw. Cambridge, MA: Harvard University Press, . White, G. Edward. The American Judicial Tradition: Profiles of Leading American Judges. New York: Oxford University Press, .

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THE COURAGE OF HIS CONVICTIONS Hugh Lennox Bond and the South Carolina Ku Klux Klan Trials Kermit L. Hall

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URING THE NIGHT OF March , , Major James William Avery and at least forty other Ku Klux Klansmen spread a reign of terror over York County, South Carolina. James Rainey was their first victim. A black man, Rainey had supported the county’s fledgling Republican Party and was an officer in the all-black militia. Major Avery, a former Confederate officer, prominent planter, and leading merchant of York County, ordered Rainey rousted from his home. After a brief, brutal beating, the Klansmen murdered Rainey by hanging him from a tree. They then continued their rampage, beating and whipping black militiamen and their families. The situation for blacks in up-country South Carolina was nothing short of desperate. Night riders castrated Lewis Thompson, a black preacher, stabbed him to death, and then dumped his body into the Tiger River. Some sixty Klansmen in full regalia dragged Negro militia captain Jim Williams from his house, hung him from a tree, and shot him repeatedly. The card they pinned to his chest read: “Jim Williams on his big muster.” Elias Hill, a black schoolteacher, preacher, and Republican Party member crippled from the age of seven, was the victim of one of the most heartless of the Klan outrages. Klansmen carried the

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helpless man into his yard, threw him on the ground, and then beat him unmercifully. After his sister-in-law, who had just been raped by several of the Klansmen, carried Hill back to his bed, the night riders forced him to recant his party ideology and pray that “God may forgive KuKlux.” Blacks in the winter and spring of – mustered enormous courage as Klansmen terrorized them for exercising their newfound political rights. Klan violence extended to white Republicans. Williams Champion testified that Klansmen shot into his house repeatedly, blindfolded him, took him for a ride, and admonished him to pray for his life. After whipping him, Klan members forced him to kiss the posterior of a black man and that of the man’s black wife, ordered him to have intercourse with the woman, then asked him how he “liked that for nigger equality.” The black militiamen organized by Governor Robert K. Scott endured the most savage Klan attacks. Klansmen intended to eliminate this bulwark of Republican political activism made evident by strong black participation in the election of . The attacks were also intended to strip blacks of their right to keep and bear arms, to be secure in their homes from unlawful search and seizure, and to vote. Attempts by Scott to prosecute Klan depredations in the state courts faltered. When state officials sought to prosecute Klansmen, white grand juries refused to find grounds on which to bring an indictment. One white sheriff who attempted to prosecute a Klan assailant was himself arrested and tried for perjury and false arrest. With the state of South Carolina in chaos, Governor Scott ordered black militias to disarm in the hope that the Klan would retreat. Scott understood that the value of the black militias to the Republican Party was negated by the resentment they stirred in the white community. The only hope, Scott concluded, was intervention by the federal government, to which he appealed. In response, President Ulysses S. Grant in May  ordered Major Lewis Merrill and a detachment of federal troops to York County, scene of some of the most brutal attacks. Merrill promptly began to make arrests, but local law enforcement officials thwarted these efforts by turning names of informers over to Klan leadership. In July congressional investigators, after concluding that the state’s court system was inadequate to protect blacks and prosecute Klansmen,

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recommended strong action. Attorney General Amos T. Akerman seconded these recommendations and informed the president that ten of the northwestern counties in the state were in rebellion. Grant suspended the writ of habeas corpus in these counties, and Merrill’s troops responded with a massive roundup of suspects. The ensuing trials became a milestone in the history of American justice and the federal judiciary. The story of the Klan trials is a tale twice told. In simplest terms, federal prosecutors prevailed, securing hundreds of convictions and temporarily destroying the Klan in South Carolina. These successful prosecutions stemmed the violence but did nothing to lay a new constitutional foundation for black civil rights. At the same time that the Klan faltered, black constitutional rights waned. The question of why this happened leads directly to the judge who presided over the trials. Federal circuit court judge Hugh Lennox Bond brought courage, independence, and a record of strong support for black rights to the trials. President Grant in April  appointed Bond to the U.S. Court of Appeals for the Fourth Circuit, whose jurisdiction included South Carolina as well as Maryland, Virginia, West Virginia, and North Carolina. The judge, a native of Maryland, understood the dilemma confronting southerners. How could whites, stripped of their honor by battlefield defeat, be simultaneously asked to cope with millions of newly freed slaves? Bond knew that southern whites believed that the policies of a distant national government threatened a social order based on racial deference and local control. At the same time, only the national government could stem atrocities committed by the Klan, promote black rights, and restore the rule of law. Bond was born in Baltimore on December , , one of fifteen children. His father, Thomas Bond, was a clergyman and physician, the onetime editor of the Christian Advocate, and a founder of Baltimore’s first medical school. His mother was Christina Birckland. Returning to Maryland after graduating from New York University, Bond read law in the office of Dobbins and Talbot before being admitted to the bar in . Two years later he married Anne Griffin Penniman, with whom he had three sons. Originally a member of the nativist American Party, Bond later joined with Henry Winter Davis to found the Maryland Republican Party.

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From  to  Bond served as judge of Baltimore’s criminal court, a position that became an audition for his future service on the federal bench. Public opinion in wartime Maryland was deeply divided between Union and Confederate sympathizers. Bond balanced devotion to the United States with respect for the rights of his fellow Marylanders. In April , for example, citizens of Baltimore mobbed the Sixth Massachusetts Regiment as it passed through the city on its way to defend Washington, D.C. Several soldiers and civilians died, and many more were wounded. In his no-nonsense charge to the grand jury, Bond made clear his support for the federal government by instructing jurors that those persons who took part in the riot were guilty of murder. Bond was hardly a judicial henchman for the Republican Party, however. In another case involving attempts by U.S. military commissioners to try civilians, Bond instructed a state grand jury to indict the commissioners for violating a state law requiring a properly constituted jury trial. He upheld states’ rights and seriously questioned the federal government’s constitutional authority to exceed its traditional powers, even in wartime. Bond was also an aggressive advocate of black rights. He urged complete emancipation and the establishment of schools for Baltimore’s colored children. Once emancipation was accomplished, Bond exploited his official position to fight the vestiges of slavery. For example, a discriminatory apprenticeship system required that black “orphans” be bound to some white person, usually a former master. The practice amounted to a form of slavery carried out by other means. The youths could be transferred from one master to another without permission of either parents or court, and apprentices who ran away could be sold to anyone within the state. As many as ten thousand blacks may have been apprenticed, even though many had parents eager to provide for them. Judge Bond not only issued writs ordering release of many apprentices, but he also provided them free legal advice. In  Bond ran for governor on a Republican platform that urged suffrage for newly freed slaves and forthrightly supported equality for blacks. His speeches fell on largely deaf ears in the white community, which rejected him and his party as too radical.

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President Grant saw in Bond qualities ideal for federal judicial service in the South, but Senate confirmation of his nomination to the Fourth Circuit did not automatically follow. Radical Senate Republicans supported Bond’s nomination, but he was unpopular with their Democratic and conservative Republican counterparts. Three months passed before Bond was confirmed on July , , by a vote of twenty-eight to twenty-one. Only one Democratic senator voted for him. Once in South Carolina, the scope of the outrages stunned Bond, who vowed to punish the perpetrators “even if it means my own life to do so.” “I never believed such a state of things existed in the U. S.,” Bond wrote to his wife. “I do not believe that any province in China has less to do with Christian civilization than many parts of this state.” Bond observed in another letter, “I am contemplating . . . pronouncements to the Grand Jury which will indicate to these night shirted scoundrels that they have now engaged in a war with the U. S. Courts & that I don’t mean to be whipped.” These were strong words from a tough judge. A tangle of personal and institutional pressures ultimately tempered Bond’s vow of unrelenting justice. Despite his forceful personality and fierce determination to see the Klan subdued, Bond could not and did not preside with total freedom but rather had to deal with his South Carolina colleague, district judge George Seabrook Bryan. As the federal courts were then organized, the district court judge joined with the circuit court judge to hear criminal cases. The district court judge contributed to the proceedings an understanding of local conditions; the circuit court judge represented the majesty of the distant federal government. Under then existing rules, one of the ways in which cases could be appealed to the U.S. Supreme Court was to force a division between the judges hearing a case. Defense counsel in the Klan cases provoked such divisions in order that the chief constitutional tool used to subdue the Klan, the Enforcement Act of , could be tested before the Supreme Court. That act, for example, guaranteed blacks “full and equal benefits of all laws and proceedings for the security of person and property.” This and other statutes, coupled with the recently adopted Fourteenth and Fifteenth amendments, protected blacks in

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voting and pushed the traditional constitutional envelope by outlawing some private as well as state-sponsored conspiracies to deny civil rights. The aged Judge Bryan came to the federal bench from circumstances far different from Bond’s. President Andrew Johnson in  appointed the South Carolina Whig-turned-Democrat as the state’s first federal district judge following the Civil War. Bryan was a former secessionist and slaveholder with ties to many of South Carolina’s most influential families. Powerful forces of localism played upon Judge Bryan. Unlike Judge Bond, he lived among the citizens of South Carolina, to whom he was sworn to administer federal justice. As the agent of the old social order, he offered blacks little hope for the future. Bond held his colleague in professional contempt, even to the point of bullying him. Bond explained in a letter to his wife, “I went to [Judge Bryan] the other day [and] frightened him half to death. . . . I am sick of him [and] altogether disgusted.” Bryan was bent but not broken by the strong-arm tactics. The South Carolina judge, like many of the state’s elite, disdained the Klan’s senseless brutality but displayed a remarkable paternalism for woebegone and usually illiterate white defendants. He had little difficulty in acquiescing in Judge Bond’s quest for punishment; however, on matters of constitutional interpretation he was intractable. The Klan trials were unprecedented in the history of the lower federal courts. Never had a prosecution involving so many persons and such novel constitutional issues been attempted. Major Merrill had rounded up more than four hundred suspected Klansmen; as many as one thousand remained at large, and perhaps twice that many were in hiding or had fled the state. The Klan’s violence, the presence of federal troops, and the newly won place of blacks in state and local offices had shattered the world of white South Carolinians. Former slaves threatened to become political masters. South Carolina Democrats maneuvered as best they could to break the federal siege. Led by Wade Hampton, the dominant social and political figure in the state, they established a legal defense fund. Their goals had little to do with saving the defendants. Rather, Hampton and others wished to blunt Republican political ambitions and restore the state-centered, pre–Civil War constitutional order. Through contributions of more than $,, Hampton and his collaborators secured the

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services of two of the nation’s most influential Democratic constitutional lawyers, Henry Stanbery and Reverdy Johnson. The latter was Bond’s longtime nemesis in Maryland politics. Their litigation strategy was to challenge the constitutional basis of Reconstruction and to divide the court rather than to save particular Klansmen. Both openly denounced the Klan’s atrocities. They stressed the state-centered nature of political and civil rights, the limited scope of the Fourteenth and Fifteenth amendments, and the application of the Bill of Rights only against the federal government. Although they saved few Klansmen from federal punishment, they succeeded in promoting their larger constitutional goals. Stanbery and Johnson were willing to lose every case so long as the convictions did not contribute to greater constitutional protection for blacks. The exceedingly difficult circumstances in which the Klan trials proceeded assisted the defense. Bond wrote in early December , one week after reaching Columbia, “I fear that we will not be able to control the court, tempers run very high, and the populace is unsettled.” Bond noted that if his court failed to bring the rule of law to South Carolina, Republicans—white or black—could “not live in this State  hours.” The sheer number of defendants and witnesses strained the court’s resources. Bond recognized that successful prosecution of the Klan depended on the efficient operation of the court, and he exerted strong administrative leadership. Upon his arrival in Columbia, Bond found not only that Judge Bryan had failed to secure a sufficient number of jurors but also that the prosecution had filed a motion protesting the manner by which the jurors were summoned. Bond immediately ordered the U.S. marshal to call additional prospective grand and petit jurors. With the grudging support of Judge Bryan, he turned aside a motion by Reverdy Johnson that the jury be composed only of persons drawn from the districts in which the accused resided. The defense obviously wanted jurors who might be intimidated by the thought of returning after the trial to live among those they had judged. Bond’s order required that prospective jurors be summoned from throughout the state. That decision significantly aided the prosecution because it fostered black majorities on the grand and petit juries, a development that sent a

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tremor through the white population. The Ku Klux Klan Act and the Enforcement Acts specifically provided that persons who had been members of any conspiracy to deny the civil rights of blacks could not serve as jurors and that if they lied in order to do so, they would be subject to penalties for perjury. This provision explains why so many of the white jurors summoned to serve defaulted. Of the twenty-onemember grand jury, fifteen were black, and the foreman, Benjamin K. Jackson, was a white Republican. More than two-thirds of the petit jurors were black, and no Klansman who took his case to trial had a jury composed of even a majority of whites. Judge Bond acted aggressively in another way. Because blacks were heavily represented in the petit juries, the defense counsel wanted to use peremptory challenges to exclude certain jurors. The question arose in the first case to go to trial, United States v. Childers. Because peremptory challenges did not require counsel to state their reasons for eliminating the person, Stanbery and Johnson wanted to exercise them not just to keep blacks off the juries (an impossibility, given the predominance of blacks on the jury pool) but also to make certain that blacks sworn to jury duty would come from the same or an adjacent district in which the alleged crime was committed. Judge Bond balked at the defense counsel’s motion because it undermined his original order requiring a statewide jury pool. With hundreds of defendants awaiting trial, he recoiled at the prospect of a timeconsuming process of interviewing and qualifying jurors. Judge Bryan resisted Bond and supported the defense counsel’s claim to peremptory challenges. As Judge Bryan and defense counsel knew, the resulting deadlock had important ramifications, since a division of opinion between the judges could force settlement of the underlying constitutional issues through appeal to the Supreme Court. This division would delay the Klan prosecutions and cast doubt on the circuit court’s credibility. Bond fashioned a compromise. He accepted Judge Bryan’s legal position that defense counsel had a right to ten peremptory challenges but in return won agreement from the defendant to change his plea to guilty. The prosecution agreed that the next case docketed would involve a charge of murder so the defense counsel could seek a division of opinion

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between the judges and an appeal of the constitutionality of the Enforcement Act of  to the U.S. Supreme Court. Bond’s decision smoothed the way for Johnson and Stanbery to present their major constitutional arguments to the High Court and expedited settlement of a host of pending cases. Persons indicted along with Childers also pleaded guilty, establishing a pattern in which the circuit court won guilty pleas in return for reduction of the sentence. Bond also displayed tenacity when counsel refused to acknowledge the court’s authority. Colonel Frederick W. McMaster was local counsel for Dr. Edward Avery, brother of James Avery. The doctor pleaded not guilty to an indictment charging him and others with conspiring to prevent blacks from voting. Avery’s trial lasted three days, but on the last day, as the defense counsel made its summation to the jury, the prosecution moved that Avery be made to appear in the courtroom. Avery could not be found because he had fled. Judge Bond immediately revoked Avery’s bail bond and directed McMaster to reveal Avery’s whereabouts. When McMaster refused on the ground of attorney-client privilege, Bond ordered him held in contempt and barred him from further practice in the federal court. These actions underscored Bond’s tight control over the court, his dedication to the successful prosecution of the Klan, and his commitment to maintaining the court’s legitimacy and independence. Bond also fostered the prosecution’s stunning successes. During the seven-week term, the government secured guilty pleas from more than one hundred persons, reducing the time and resources needed to gain convictions. Persons who were convicted or pleaded guilty received stiff sentences. Bond’s presence in the courtroom was a constant reminder that one judge could make a difference. Despite his revulsion against the Klan, Judge Bond’s independent streak cut in another direction on matters of constitutional interpretation, one less accommodating to the prosecution. Bond was prepared to defeat the Klan without at the same time completely embracing the prosecution’s novel assertions about the constitutional bases of black civil rights. The prosecution advanced three constitutional arguments in the South Carolina Klan cases, each of them intended to shift the balance

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of federalism in favor of the national government. First, it claimed that as a result of the adoption of the privileges and immunities clause of the Fourteenth Amendment, the entire Bill of Rights could be applied against the states, not just the federal government. Since the Supreme Court’s famous  decision in Barron v. Baltimore, American constitutional law had held that the Bill of Rights was a limit on the federal government but not on the states. The adoption of the Fourteenth Amendment, the prosecution claimed, had modified that understanding. Second, the prosecution wanted the amendment to be interpreted to include acts by individuals and not just government officials. And, third, the prosecution insisted that the Fifteenth Amendment granted blacks a positive right to vote, a right that the federal government was bound to enforce against the states. Stanbery and Johnson acknowledged that the Fourteenth Amendment had ushered in an important change in the powers of the national government. They rejected the idea, however, that the protections in the federal Bill of Rights had been incorporated through the privileges and immunities clause of the Fourteenth Amendment to apply against the states. Rather, the new clause applied to only a short list of rights, none of which were in the original Bill of Rights. They also disputed the idea that state action required a broad definition that would include private, individual acts, such as murder and torture carried out while state officials stood by idly. The defense counsel insisted that the Fifteenth Amendment provided only for protection of blacks against acts of discrimination specifically carried out by the states, not individuals, in federal elections. The Klan was a private organization; as hideous as its actions might be, the federal government had no power to stop it. That task was the sole responsibility of South Carolina. In sum, the states and not the national government had primary responsibility for securing the rights of its citizens, including newly freed slaves. These contested positions became clear in United States v. Crosby. The Crosby trial had its roots in one of the most pathetic incidents of Klan terror. Crosby and six other Klansmen dragged Amzi Rainey, a militiaman, and his family from their home during the night. They beat and cut Rainey in front of his family and then raped and shot his eldest daughter. Local officials not only refused to take action against Crosby, but

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they asserted that the Enforcement Act of  provided no grounds for federal prosecution. Rainey’s daughter, as a female, had no right to vote and therefore could not seek federal protection. Federal prosecutors saw the issues differently, and they brought an eleven-count indictment against Crosby and his fellow conspirators. The most novel of these counts was the claim that the Constitution, through the Fourteenth and Fifteenth amendments, had granted Rainey certain new civil and political rights. These included the right to vote in federal and state elections and a range of privileges and immunities. One, the Fourth Amendment right to be protected against unreasonable search and seizure, had been merged into the Fourteenth Amendment. The violation of these rights, the prosecution claimed, constituted a crime punishable by the United States. The government’s attorneys asked Judges Bond and Bryan to expand the acts covered by the amendments and the power of the federal government to punish private individuals and not just state officials. While Bond wanted justice for black citizens and punishment for their white antagonists, he was unwilling to break such new constitutional ground. Judge Bryan eagerly joined him. Together they acknowledged that under the Fourteenth and Fifteenth amendments, Congress had power to punish individuals who acted under color of state law to violate the voting rights of blacks. That said, the newly amended Constitution did not guarantee a right to vote in either state or federal elections. Congress could not assume the authority to prescribe the qualifications of voters because that responsibility belonged to the states exclusively. “The right of a citizen to vote . . . is not granted to him by the Constitution . . . nor is such right guaranteed,” Judge Bond wrote. “All that is guaranteed is that he shall not be deprived of the suffrage by reason of race, color, or previous condition of servitude.” The judges also rejected the prosecution’s theory that the Fourth Amendment had been merged into the Fourteenth. “The right to be secure in one’s house,” Judge Bond observed, “is not a right derived from the constitution, but it existed long before the adoption of the constitution, at common law, and cannot be said to come within the meaning of the words of the [] act [as a] ‘right, privilege, or immunity granted or secured by the constitution of the United States.”’ By quashing the most constitutionally novel

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counts of the Crosby indictment, the judges eliminated one of the prosecution’s two means of promoting black civil and voting rights. The other was the Second Amendment right to keep and bear arms. United States v. Avery and United States v. Mitchell tested the government’s theory that the right to bear arms was protected against state and individual acts by the merger of the Second Amendment into the new privileges and immunities clause of the Fourteenth. The Avery and Mitchell indictments involved the nighttime raid on Jim Rainey’s house. The former charged murder, while the latter did not. Stanbery and Johnson wanted a murder case in order to bring an appeal to the Supreme Court. They reasoned that if the federal courts had power under the  act to determine whether the crime of murder (an offense punishable in South Carolina by death) had occurred in the process of violating the rights of blacks, then the states would lose their exclusive control over the administration of criminal justice. Stanbery and Johnson believed that the Supreme Court would not sustain such an incursion into this traditional area of state authority. They were right. Bond and Bryan divided over both the Second Amendment issue and the murder charge. Bond’s decision combined calculation and courage. He knew that the right to bear and keep arms was essential to the preservation by blacks of their rights, including suffrage. The federal district attorney explained that seizing the arms of black militiamen was “one of the principal things in connection with the [Klan] conspiracy; it was systematically done, and was one of the main objects of the conspiracy . . . to deprive them of their arms as well as to prevent them from voting.” Bond seemed to lean directly in favor of merging the Second Amendment into the privileges and immunities clause of the Fourteenth Amendment, a step that has not been taken even today. The usually forceful judge was peculiarly silent on this important matter. He surely recognized the inherent difficulty in arguing that the Fourth Amendment could not be incorporated but that the Second Amendment could. The trial record is mute on the reasons for his disagreement with Judge Bryan, and Bond refused to elaborate when pressed by the frustrated prosecution. He did, however, create the division necessary to take the case to the High Court.

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Bond’s action was a calculated decision to keep his part of the Childers compromise. In return for a large number of quick convictions in other cases, Bond agreed to use the Avery case to fulfill his pledge to the defense counsel to arrange an appeal of the constitutionality of the Enforcement Act of  to the U.S. Supreme Court. The justices in March  decided that they lacked jurisdiction to hear Avery and avoided addressing the constitutionality of the Enforcement Act. The action clearly favored the defense. It left the traditional rule that the Second Amendment in particular and the Bill of Rights in general applied only against the federal government. The idea of a national right to be secure in one’s home against state interference died as well. Ironically, only Avery, who had fled to Canada in the summer of , escaped punishment. Federal prosecutors gained confessions from his fellow Klansmen based on violations of blacks’ political right to the free exercise of suffrage. Bond did much to aid this process through his energetic administration of the proceedings. His vigorous courtroom leadership and his support for black rights were tempered by his embrace of a traditional vision on American federalism, even in the face of the new Fourteenth Amendment. States’ rights retained their vitality; the federal government could not prosecute civil rights violations stemming from individual acts; and the Bill of Rights remained exclusively a limitation on the national government. On constitutional matters, the circuit court sided consistently, although not always fully, with the defense. Judge Bond won the battle to punish Klan atrocities; Johnson and Stanbery, with the assistance of Judge Bryan, won the war to limit federal power. Constitutional change and political justice became closely connected during the Klan trials, but not closely enough to build new constitutional scaffolding under the rights of blacks. The federal government’s attack on the Klan is best understood as a legal experiment based on a then novel constitutional theory about the relationship between the Bill of Rights and the Fourteenth Amendment. The Republican Party’s goal of promoting social change sufficient to maintain black political power in South Carolina was hardly unique to the Palmetto State. The white participants in the South Carolina Klan trials fully grasped that given the crumbling world of slavery, it was necessary to perpetuate pre–Civil

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War approaches to federalism. “Though rejoiced at the suppression of Ku Kluxery,” wrote Attorney General Amos Akerman, “I feel greatly saddened by this business. It has revealed a perversion of moral sentiment among the Southern whites, which bodes ill to that part of the country for this generation. Without a thorough moral renovation, society there for many years will be . . . certainly very far from Christian.” The presence of black jurors, black witnesses (both male and female), and convicted white felons dramatized this wrenching break from the past. A judge with the courage of Hugh Lennox Bond could and did make a difference. Although Bond’s commitment to black rights persisted, the Republican Party soon lost interest in the enforcement campaign. Reacting to public opinion, President Grant began to pardon Ku Klux offenders in . Three years later virtually all Klansmen had either served out their terms or received pardons. The federal government formally dropped charges in over one thousand pending Klan cases. Finally, in  the Supreme Court added an exclamation mark. It declared portions of the Enforcement Act unconstitutional, ruling that the Fourteenth Amendment authorized legislation to protect civil rights against only state— not individual—action. Ironically, one of Judge Bond’s decisions was partially responsible for bringing a formal end to Reconstruction. In the disputed election of , the Supreme Court of South Carolina had imprisoned the State Board of Canvassers to prevent them from reporting election returns favorable to Republican presidential candidate Rutherford B. Hayes. Ordering their release on a writ of habeas corpus, Bond ruled that in interfering with a federal election the state court had exceeded its authority. Once Hayes became president, he allowed the South to pursue its own version of Reconstruction policy. On October , , Judge Bond died of an internal hemorrhage. “Few jurists of this country,” a Baltimore newspaper editorialized, “have been confronted with more perplexities than Judge Bond, not the least of which was a general prejudice against him in the judicial circuit over which he presided because of his strong political opinions during the Civil War and the fearless and uncompromising manner in which he expressed them.” The South Carolina Ku Klux Klan trials distinguished

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Bond as an audacious, independent judge committed courageously to black rights, the rule of law, and fidelity to the Constitution.

  Fish, Peter Graham. “Hugh Lennox Bond: –.” In Great American Judges: An Encyclopedia, edited by John R. Vile, –. Santa Barbara: ABC-Clio, . Fuke, Richard Paul. “Hugh Lennox Bond and Radical Republican Ideology.” Journal of Southern History  (November ): –. Hall, Kermit L. “Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, –.” Emory Law Journal , no.  (Fall ): –. Hall, Kermit L., and Lou Falkner Williams. “Constitutional Tradition amid Social Change: Hugh Lennox Bond and the Ku Klux Klan in South Carolina.” Maryland Historian  (Fall/Winter ): –. Williams, Lou Falkner. The Great South Carolina Ku Klux Klan Trials, –. Athens: University of Georgia Press, .

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CL ARA SHORTRIDGE FOLTZ Inventing the Public Defender Barbara Allen Babcock

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OBLE PURPOSES AND grand projects were at the heart of Clara Foltz’s career as a crusader for women’s rights and for justice in the criminal courts. Though these causes may seem unconnected, they are interwoven at many points. In a lifetime of firsts, her greatest legal accomplishment was her proposal for a public defender. Foltz, now largely a forgotten figure, was once the celebrated Portia of the Pacific. In her heyday, hardly a week passed without some mention in the popular or professional press. Admitted to the bar in San Jose in , she was the first woman lawyer in California, and probably first in the far West. Her celebrity started with her entry into the legal profession, a dramatic human interest story. Deserted by her husband and left with five children under the age of twelve (“none old enough to earn the milk it drank,” she often said), Foltz surmounted almost inconceivable barriers to become a lawyer. In the midst of an economic depression, as the still new state of California was preoccupied with race and class tensions, Foltz and other suffragists lobbied for legislation allowing women to be lawyers. Previously only white men of good character could apply.

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Once the statute was passed, Foltz, who had been studying on her own, became the first woman to use it, to the accompaniment of worldwide publicity. Before the stories and interviews had even subsided, she started another wave of headlines by her decision to attend the newly established Hastings Law School. It was not unusual for licensed lawyers like Foltz to seek further training—especially the newer bar members who had read law in an office rather than learning it from a great professor in a classroom. There was also a pent-up desire for legal learning in the West, where, without journals or accessible libraries, lawyers felt cut off from legal developments, theories, and debates—indeed, from the law itself. Foltz especially yearned for more education, having married at the age of fifteen, after only three years of formal schooling. With her friend Laura Gordon, soon to become the second woman lawyer in the state, she paid her ten-dollar tuition and went to a few classes before the women were forced out on account of their sex. The dean told them that the rustling of their skirts disturbed the male students. Foltz did what many, perhaps most, lawyers would have done in her situation: she sued Hastings. Joined by Gordon, Foltz argued that Hastings was a branch of the University of California, which had been founded as a coeducational institution. While their case was pending, the state constitutional convention was meeting, and the women seized the opportunity to embody the women lawyers bill in the fundamental law of the state. They lobbied through a clause, unprecedented in any American constitution, guaranteeing women access to all vocations, professions, and callings. In effect, many years before women obtained suffrage, this clause was a step to full and equal citizenship. For good measure, the women also successfully sought an education amendment, assuring that no one would be denied entrance to the state university on account of sex. Both clauses fortified their argument in the Hastings case that it was wrong to allow women to practice law but not to learn it, and the trial judge ruled in their favor. Unfortunately, the victory quickly lost its savor because the Hastings directors decided to appeal the decision to the California Supreme Court, a process that would take many months to complete.

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Foltz was furious at the appeal and decades later still railed at the eminent men of the bar who knew she was right on the law but tried to wear the women out and exhaust their resources. If this was indeed their purpose, they surely succeeded. Though Foltz ultimately won the case that bore her name, she was too busy practicing by the time it came down to take advantage of the ruling. For anyone without independent wealth or family connections, starting a law business was hard. For the lone women lawyers in California, it was almost impossible to attract paying clients. Instead, they helped dependent women obtain divorces and represented poor people charged with crimes. At least in the divorce cases, there was a chance of a fee if they could win a property settlement. But only the most destitute criminals were desperate enough to turn to a woman lawyer. In fact, many of Foltz’s criminal clients did not choose her but received her services by appointment of the court. Throughout the United States, this was then the usual method of providing lawyers for those unable to pay. The appointed counsel method—which was too haphazard to be called a system—was rife with injustice. As Foltz would often say, “The appointees come from failures of the profession, who hang about courts hoping for a stray dollar or two from the unfortunate or from the kindergartens of the profession, just let loose from college and anxious to learn the practice.” If the accused or his family had a little money, he might fall into the hands of a shyster lawyer, who would take every last quarter for little in return. Even those who could pay for adequate counsel were often financially ruined by the cost of the defense. When she went to court for her clients, Clara Foltz found a male bastion second only to the polling place. She once described how it felt to be the only woman in the courthouse: “faced by a male judge, flanked by a male jury, surrounded by male lawyers, generally, with a male clerk and bailiff, and a mob of male bipeds in the lobby. . . . A woman, especially if she is a timid one, is at a terrible disadvantage in such a place.” As an outsider and newcomer to the criminal courts, Foltz saw the injustices ignored by the regulars, who she said were “deadened in feeling

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by constant contact.” It was not a great mental leap from Foltz’s firsthand observations to the idea that the state was responsible for a fair presentation of both sides of the case. Though it is not clear when she first started urging a public defender, it was probably in lectures she gave to supplement her income as a lawyer in the s. In one of her most popular productions, entitled simply “Lawyers,” Foltz rendered a humorous account of her lawsuit against Hastings. She then went on to talk about the profession generally—especially the inadequacies of appointed counsel and the unfairness of pitting a trained prosecutor against shysters, incompetents, or no lawyers at all for the accused. All her underdog clients and single-woman experiences from years of practice were in Foltz’s conception of the public defender. Precisely because she had been there, she knew it would change everything for the criminally accused to be represented by a powerful figure backed by the full resources of the state. At the same time she spoke of justice for the accused, however, Foltz’s subtext was equal treatment for women lawyers in the courtroom. Too often she had found herself on trial, along with her clients. Prosecutors reacted harshly to what they saw as the unsporting advantage she had with the all-male juries. They also found it a peculiar humiliation to lose to a woman. Some prosecutors routinely attacked both Foltz and her client—him for his alleged crime and her for doing the dirty, unfeminine work of representing criminals. A prime example of the difficulties she faced as a woman defense lawyer was a case Foltz tried in —in which she felt that the prosecutor and police were in league against her and her client. Before his arrest, James Wells had been a successful real estate man with an office near Foltz’s in San Francisco. He was broke and in jail when Foltz defended him on a forgery charge. At trial, she told the jury, “I deplore the fact that the law does not provide for a public defender as well as a public prosecutor. Do you think this poor innocent man would have applied to a woman to defend him if he had money to pay some distinguished male member of the bar? I am in this case without pay or the hope of reward.”

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For five days Clara Foltz and the district attorney were locked in heated adversarial combat. She objected to his unfair conduct of the case from opening statement on, and when she lost, Foltz filed a forceful appeal complaining of the prosecutor’s conduct: “He misrepresents the facts he expects to prove, attempts to get improper testimony before the jury, garbles and misstates what is allowed, slanders the prisoner and browbeats the witnesses.” Ultimately she won, and the California Supreme Court reversed Wells’s conviction, holding that “if a defendant cannot be fairly convicted he should not be convicted at all; and to hold otherwise would be to provide ways and means for the conviction of the innocent.” Wells was a great victory for Foltz—and all her own. She tried the case, suffered the loss, wrote the brief on appeal, and ultimately she triumphed. Forty years later, when the U.S. Supreme Court spoke for the first time about prosecutorial misconduct, it cited Wells as a major precedent. In addition to cases like Wells, where she was disrespected as a woman defender, another impetus to Foltz’s thinking was that she received more than her share of appointments in these indigent cases. Looking back on the early days of her practice, Foltz said that the judges considered her public defender idea “chimerical,” yet they often appointed her to represent poor people who could not afford to pay—“as a sort of try-out of my proposal.” Over the years, in her practice and her own running commentary on it through her “Lawyers” lecture, interviews, and profiles, Foltz continued to urge and refine her conception of the public defender. It was not until the s, however, that she began her organized campaign to make the idea a reality. She drafted a public defender statute, lobbied for its passage, and wrote law review articles supporting it. But the highest point in Foltz’s campaign for a public defender was her speech on the subject at the Chicago World’s Fair of . Formally known as the World’s Columbian Exposition, it was the event of the century, enticing half the population of the United States— million people—to pass through the electronic turnstiles. They came to see a gleaming white city whose columns and cupolas were outlined by electric necklaces and reflected in a huge lagoon plied by gondolas. It was

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ancient Rome, it was Beaux Arts Paris, it was Venice, but most of all it was America. Instead of an Eiffel Tower, the icon of the  World’s Fair, the Chicago exposition featured the first Ferris Wheel. Though attendance was huge and the sights astonishing, it was the fair’s symbolism that made it so momentous to people at the time. It marked the spiritual reunification of the country after the Civil War and the emergence of America as a world power. Some people glimpsed the promise of a new golden age in the technological advances, the richness and variety of the exhibits, and the efficiency of the fair’s organization. At the least the fair’s grandeur was proof of progress: more “in the last fifty years than the previous fifty centuries,” said a popular orator, adding that “we live in the best age of history and the most favored portion of the globe. We stand on the summit of time.” Some of this was whistling in the dark—the exposition officially opened May , ; on May  the stock market crashed. Throughout the summer of the fair, banks failed by the hundreds; businesses went under by the thousands. By the end of August the country was in the deepest depression of its entire history. Yet the harder reality pressed, the more hope people found in the event’s vision. Of course, the fair had its detractors, who found plenty of grist in the treatment of racial minorities, particularly blacks, and in the small offhand role assigned to Native Americans in the celebration of the arrival of Columbus. Detractors attacked the huge amounts expended on the impermanent and extravagant when people were starving in the streets. Yet even the severest critics came, which was the only way to experience the fair: there was no radio, no moving pictures, no long-distance telephone (the last was a futuristic exhibit in the Electricity Building). Despite the depression, people got themselves to Chicago in , often at great sacrifice. Women joined the celebration to a degree unprecedented in previous fairs and expositions, indeed in any realm of public life—their participation in itself a witness to their progress. The Woman’s Building became a major attraction, and women contributed to exhibits and displays throughout the grounds. Movement women, led by Susan B. Anthony, had been the main lobbyists for full female participation. The U.S. Congress refused to integrate the fair’s planning commission, but it did

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agree to a principle of equal participation through a separate Board of Lady Managers. In conjunction with the fair, a series of open public meetings, called congresses, were held on various subjects. The idea was to bring together the leading thinkers in every area of human endeavor, to share and celebrate the “achievements of intellect to date.” An impressive building (now the Art Institute) was erected near the fairgrounds to house the congresses, which were a major success. From May to October a million people attended seventeen congresses, starting with one on the woman of the century, celebrating women’s progress. Each day, ten thousand people (mostly female) poured into the building’s barely finished halls to hear lectures on subjects ranging from suffrage to lace making. The women were not satisfied with their separate week, however, and waged a congress-by-congress struggle over participation in the rest of the meetings. In the end, women spoke at fourteen congresses—all but real estate, engineering, and electricity. Nowhere was their participation more contested than at the Congress of Jurisprudence and Law Reform. It was planned to bring together the deepest legal thinkers—distinguished judges, law professors, and practitioners—to talk about legal developments in the newly dawning twentieth century. The women pushing for participation were led by the redoubtable Myra Bradwell, editor of the most important legal publication west of the Mississippi, the Chicago Legal News. Shortly after passage of the Fourteenth Amendment, Bradwell had tried to use it to establish the right of women to practice law. Her basic argument was that vocational choice was one of the “privileges of citizenship” guaranteed to all (including black and white women) under the newly minted amendment. Though she lost, Bradwell’s name became synonymous with women’s efforts to join the profession. In an astringent little piece in the Chicago Legal News, Bradwell related the women’s fight for a part in the Congress of Jurisprudence and Law Reform. She said that the men battled them so ferociously on every point that the women were tempted to hold their own separate meeting. Finally, “at the eleventh hour, four women were invited to address the congress.” It was much too late for two foreign women, from India and England, to attend, but Clara Foltz and Mary Greene, the second woman

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lawyer in Massachusetts, were able to come. Why these two were selected from among the two hundred women lawyers then in the country, Bradwell did not say. Rather, she mentioned both names in her publication without introduction, as if the choices were obvious and her lawyer readers would know them. Mary Greene and Clara Foltz were representative in a sense; from opposite coasts, one an office attorney specializing in property matters, the other that rarest of women—a courtroom lawyer. They were among the dozen or so well-known women lawyers of the day. The two would become, in Bradwell’s formulation, the first women “in the history of the world” to present their own ideas “at an international congress of lawyers.” Their very appearance on this elite male platform was striking. Foltz’s topic was also arresting. Compare “Public Defenders” with the subjects of some famous male presenters: Thomas Cooley, “Civil Justice in America”; John Henry Wigmore, “Civil Justice in Japan”; David Dudley Field, “Codification of American Law”; and the most famous presentation of all, James Bradley Thayer’s on judicial restraint in passing on the constitutionality of legislation. Mary Greene’s subject—married women’s property rights—fit the program: a suitable, even ladylike topic, written and delivered at a level of abstraction that matched the men’s presentations. Clara Foltz, on the other hand, gave an old-fashioned barn burner of a speech, featuring drama and pathos. Her speech came on the second day of the three-day congress, and hers was the first female voice heard there. Her rhetorical flourishes and rolling periods distinguished her presentation almost as much as the fact that a woman was speaking the lines. The content of Foltz’s public defender address was a pastiche of her “Lawyers” lecture, sections from the Wells brief, personal observations and experiences, and some fairly original constitutional theories. Here are her main points, in the order she followed, much in her own words. The form was classic, starting with a tribute to the protection of innocence. Using phrases molded for a jury, Foltz led her audience gently to the revolution. Our Public Defenders If we were to inquire

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Of Wisdom, Through her sages and statesmen: Of Morality, Through her poets and preachers; Of Sympathy Through her orators and actors What were the duties of the State toward those accused of crime? They would unite with a common voice in declaring that the Citizens of a State are far more vitally interested in saving an innocent man from unmerited punishment than in the conviction of a guilty one. Foltz then turned immediately to the central question of criminal defense: how do we distinguish the innocent from the guilty? Her answer: we don’t. Until the jury verdict, everyone is presumed innocent and should be so treated. Not only, she said, “because of the legal maxim, but because in over one-half the criminal cases the accused is actually found not guilty.” Both the prosecutor and the police, she told her audience, mistakenly believe, however, that “it is the duty of the State to convict whoever is arrested.” In portraying the power of the state, Foltz first described the prosecutor—a composite of her opponents of the last fifteen years: “strong of physique, alert of mind, learned in the law, experienced in practice and ready of speech.” Then, from the Wells brief, she added, “Around and behind [the prosecutor] is an army of police officers and detectives ready to do his bidding, and before him sits a plastic judge with a large discretion often affected by newspapers.” As a specific example of unfairness, Foltz mentioned “the manacling of prisoners in court,” adding from her own experience that “a few years ago in California the officers constructed cages in the court-rooms and confined the accused in them like wild beasts, till an outraged public sentiment demanded and secured their removal.” She did not mention that it was she who stirred the pot of public sentiment, which led to their removal. Having pictured all the force arrayed against the accused, Foltz rhetorically asked what machinery is provided to defend the innocent,

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and answered, “None.” “Even if acquitted,” Foltz continued, “the accused comes from the court-house a changed man. He remembers a malicious arrest, an unjust incarceration, an expense that has impoverished him, a trial in which every court officer seemed doing his utmost for his conviction, the abuse of his witnesses and the slander of himself and possibly of his family. . . . Disgrace has crushed his manhood and injustice has murdered his patriotism.” Foltz’s learned audience was surely amazed, perhaps even shaken, to hear a woman speak on topics so apparently removed from either feminist causes, or the usual stuff of scholarly debate and concern. Not only the subject itself, but the frankness of her language was unsettling: She repeatedly used the words “vicious” and “malicious,” referred to a “plastic judge,” and discussed police perjury. Having painted the scene, plainly and harshly, Clara Foltz then offered her solution. “For every public prosecutor there should be a public defender chosen in the same way and paid out of the same fund as the public prosecutor. Police and sheriffs should be equally at his command and the public treasury should be equally open to meet the legitimate expenses.” This powerful figure, on a par with the public prosecutor, would produce immediate benefits: Malicious prosecution would cease. The accused would have an adequate defense. Courts would be freed from the squabbles that now disgrace them. The profession would be relieved from compulsory services. Clara Foltz brought her creation forth, whole and freestanding, without the support of precedent or practical detail. She gave no clue about the provenance of her ideas. Rather, her speech was a declaration of principles, the first text in a movement, leaving us today with the question, How did a seriously undereducated single mother of five, living in the far West long before women had the vote, conceive an entirely new way to practice law? Foltz’s achievements were all in a real sense products of the women’s movement. On the most basic level, she would not have been a lawyer,

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or even imagined it, without the movement. Access to the professions was one of the original goals of organized women, along with suffrage, property rights, and the freedom to choose their own “sphere of action.” We know the original aims because the first generation of feminists memorialized them at Seneca Falls, New York, in , the year before Clara Shortridge Foltz was born. Foltz was not a convert but was imbued with the ideals of women’s equality from her youth. One of her earliest memories was hearing Lucy Stone speak in the church where her father was a minister in the little town of Mount Pleasant, Iowa. From the age of eleven to fourteen, Carrie Shortridge attended Howe’s academy in Mount Pleasant, whose founder, Samuel Gridley Howe, was an abolitionist and a suffragist. Foltz’s first popular lecture was entitled “Impartial Suffrage,” and her last public act was running for governor of California on an equal rights ticket. Throughout her varied career, she was always identified as a women’s rights advocate, and, as she told her own story, her struggles were all for the cause. Though she was far from a single-issue person, women’s rights anchored virtually all her other causes because it endowed her with a reformatory attitude or approach to life. She wanted suffrage as a badge of full citizenship; she also thought women voters would make government more responsive to human needs. Similarly, she believed that once women became lawyers, they should work to improve the administration of justice. The public defender was an example of the kind of idea women would bring to the profession. As conceived by Foltz, it would not involve charity, which can degrade the giver and the receiver, but would make criminal defense a high calling for lawyers, “full, adequate and free” for everyone. The public defender was taken up by the Progressives in the early twentieth century, and the first public defender office was established in Los Angeles in , authorized in the same election in which women won suffrage in California. Foltz took credit for both developments. After the initial flurry of interest and the founding of offices in a dozen or so states, however, the public defender idea faded from the political scene. Not until the great  case of Gideon v. Wainright, which held that the government must provide free counsel to indigent defendants facing

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incarceration, was the public defender revived. Today public defense is central to the criminal justice system, though the institution is still not well understood or politically popular. Underfunded and overworked, public defenders often labor under conditions like those that Foltz decried more than a hundred years ago. Foltz’s fifty years of practice were filled with first-woman achievements. In the late s she moved to San Diego, where she started a daily newspaper and participated in that city’s real estate boom. After returning to northern California for a few years, she moved to New York City in , where she lobbied for the public defender in Albany and by some accounts was the first woman to argue in the city courts. She also started the Clara Foltz Gold Mining Company with a group of prominent businessmen. Foltz settled in San Francisco at the turn of the century after practicing law for a brief time in Denver. Upon losing her home and office in the  earthquake and fire, she moved to Los Angeles for the remainder of her life. There she was appointed the first woman deputy district attorney (–), was the first woman member on the state board of charities and corrections, and for a few years published a magazine, the New American Woman. Though she longed to be the first woman U.S. senator, she worked instead in her brother’s successful campaigns— Samuel Shortridge served two Senate terms (–)—and her  campaign for California governor was notable as the first time a woman sought that office. Four years later, the extraordinary life of Clara Shortridge Foltz came to an end. Among her accomplishments, Foltz’s vision and advocacy of a public defender is the most impressive and important. At a time when there was a growing gap between rich and poor and when wealth determined the outcome of criminal cases more often than guilt, Foltz made her proposal to the Congress of Jurisprudence and Law Reform: “Let the criminal courts be reorganized upon a basis of exact, equal and free justice; let our country be broad and generous enough to make the law a shield as well as a sword.” Then she promised for the people “the blessings which flow from constitutional obligations conscientiously kept and government duties sacredly performed.” The promise holds true today.

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  Babcock, Barbara. “Clara Shortridge Foltz: Constitution-Maker.” Indiana Law Journal , no.  (): –. ———. “Clara Shortridge Foltz: ‘First Woman.’” Arizona Law Review , no.  (): –. Schwartz, Mortimer, Susan Brandt, and Patience Milrod. “Clara Shortridge Foltz: Pioneer in the Law.” Hastings Law Journal , no.  (): –. Women’s Legal History Website, Stanford University. http://womenslegalhistory .stanford.edu/.

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NOAH PARDEN In the Eye of the Storm

Mark Curriden

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ANY PEOPLE WHO HEARD Noah Parden speak felt he should have been a Presbyterian evangelist. His strong intellect led coworkers to think he should have been a college professor. Instead, he knew early in life that the law was his calling. But as a young African American practicing law in the South, Parden never dreamed he would present a landmark case before the Supreme Court of the United States. He never imagined his legal argument would change how criminal cases were handled for more than a century. The year was . Parden’s client was a convicted rapist sentenced to death. The execution was a mere week away when Parden filed a novel appeal with a Supreme Court that was none too friendly toward criminal defendants or civil liberties. The lawyer sought to have the justices intervene in a state criminal case through a unique and unused mechanism buried in federal law called federal habeas. All the lawyers and judges back in Parden’s home state, Tennessee, declared his legal argument frivolous. They considered his appeal nothing more than a tactic to delay the execution of justice in one of Chattanooga’s most heinous crimes. Everyone was betting that the U.S. Supreme Court would quickly reject the argument, a reasonable belief

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because the justices had never before granted relief to a state criminal defendant due to flaws in his trial. On this one day in March , however, Parden overcame all the obstacles he had faced in his life and all the barriers that had been erected in this case. On this one day, Noah Parden used all his oratorical skills and knowledge of the law to save the life of a single man. His arena was but a small conference room, and his congregation consisted of only one man. But on this day, the sermon he preached may have saved the soul of American law. Noah Parden was born in  in Georgia. His mother was a newly freed slave who struggled to make a living by cooking and keeping house for two neighboring families. People said Parden’s father was white, but father and son never met. As a child, he dreamed of becoming a sheriff. By the time he was in high school, his aspirations leaned more toward the law. Parden’s mother fell ill when he was six. Neighbors packed up Noah’s few belongings and sent him to an orphanage in nearby Rome that was run by missionaries, where he attended school and did his chores. As a young teenager, Noah spent several hours a day working in the tobacco fields. At night he worked in a factory to save money for law school. During college and law school at Central Tennessee College, near Nashville, Noah worked evenings and weekends as a barber to pay for tuition, housing, and food. During his third year of law school, he met and married Mattie S. Broyles, a woman seven years his junior. In  Noah Parden graduated first in his class. This education in some ways set him above even his white peers. Most attorneys in the late s didn’t study law in a classroom but instead “read law” for years under an experienced trial lawyer in order to receive their law licenses. Parden’s law school education gave him a stronger grasp of common law, the Constitution, state and federal statutes, and court rulings. Parden was offered a variety of jobs after graduation, from schoolteacher and newspaper editor to church pastor. Ultimately, he decided to settle in Chattanooga, where he opened a law firm with Styles Hutchins, the only other black lawyer there. Hutchins was a historic figure, the first African American to graduate from the University of South Carolina

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School of Law in  and the first black person admitted to practice law in Georgia later that same year. In  Hutchins made history again when he was elected to serve in the Tennessee legislature. At age fiftyfour, Hutchins was looking to mentor a successor, and as a young lawyer, Parden approached Hutchins looking to be mentored. As a fledgling attorney, Parden’s background was similar to that of many of his clients. Like them, he had grown up poor and was frequently the target of racism. He was mostly hired by black men who couldn’t afford a white lawyer. Payment for his services often came in the form of a home-cooked meal with the client’s family. He took on more pro bono criminal cases than any other Chattanooga lawyer at the time. Thus, although Parden and his partner represented nearly two-thirds of the black defendants in their area, their work was not particularly profitable. Parden provided more than legal advice to his clients, scolding them for bad behavior and trying to help them find the right path in life. At times, he would not pursue a vigorous defense against a client he knew to be guilty, urging him instead to accept responsibility and punishment. This vision for future advancement of his race was another result of his education. As a student, Parden had studied under Tuskegee Institute leader Booker T. Washington and espoused his views that the time for blacks to pursue full civil rights had not yet arrived. Full acceptance would come more easily after respect was gained from the white community through the betterment of blacks through education, the cultivation of skills, and by becoming law-abiding citizens. Parden openly chastised his own race in articles he wrote for black newspapers. “Many colored complain to me that they are not treated equally by the whites,” he opined in a column in the Chattanooga Blade. “Why should the whites not look down on the Negro when he acts as he does? We shame ourselves by frequenting the taverns. We shame the Negro race through thievery and drunkenness and improper conduct. Negroes who violated the law should not seek to avoid punishment. And the law-abiding Negroes should not protect Negroes who steal or cheat or violate another person.” Devoutly religious, he never missed church on Sunday and he knelt beside his bed every night for an hour-long conversation with God. He

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treated his body as a temple, eschewing tobacco, alcohol, and pork. His knowledge of the Bible spilled over to his professional life, as he frequently quoted scripture or cited a parable in closing arguments. According to Parden’s granddaughter, Lillian Bracy, “He loved to read. He read the Bible a lot. He said when he was trying a case, he could find out anything about a case in the Bible.” Regardless of his strong moral character or high standing among the black population of Chattanooga, Parden never represented a white man during his thirteen years of practice there, although he actively pursued white clients. This had nothing to do with his skills as an attorney. A white lawyer once told a newspaper, “Even though he’s black and they’re white, Noah Parden develops a bond with a jury faster than any lawyer I have ever seen. He makes jurors like him and trust him, and in return, they like and trust his client.” Explained Parden, “Emotion is the greatest single factor in appealing to a jury.” But at times, he still had pangs of conscience about a job well done. “I have hung my head in shame after clearing men who should have been sentenced to life,” he once told the St. Louis Post-Dispatch. Parden aggressively pursued civil cases, working on a contingency fee that supplemented his meager income from criminal clients. Many of his civil cases dealt with insurance companies that refused to honor policies sold to blacks. Parden convinced many white jurors—especially low- and middle-income individuals—that they would be the next victims of such insurance practices, putting them in a position of solidarity with his black clients. Because of his legal prominence in Chattanooga, Parden was approached by defense lawyer Lewis Shepherd to help represent Ed Johnson, a poor black man accused of the brutal rape of a white woman in early . Like everyone else in Chattanooga, Parden initially assumed Johnson was guilty and declined Shepherd’s offer, deciding that the case was too politically and socially divisive. However, he did use his community connections to locate several witnesses, research Johnson’s character and background, and find information about anyone else who may have committed the crime. The mob mentality that was taking over the city was particularly irritating to Parden. He believed Johnson deserved a fair trial and was upset to find that Judge Samuel D. McReynolds re-

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fused requests to delay the trial or move it to another jurisdiction. And the more Parden looked into the case, the more he became convinced that Johnson was not the culprit. The jury disagreed. On February , , following a three-day trial, Johnson was found guilty. Judge McReynolds issued a death sentence as the punishment. Only hours after the sentence had been issued, Parden and Hutchins found a heartbroken man standing in their office. “Skinbone” Johnson, Ed’s father, pleaded with the lawyers to take his son’s case on appeal. He repeated over and over that his son was innocent and that he had not received a fair trial. Parden and Hutchins agreed with the latter statement, having closely followed the trial. Its flaws included the fact that only white men had been called to jury duty and that the judge had refused to allow pretrial motions for a change of venue in light of two lynching attempts on the defendant’s life. They also identified numerous irregularities during the trial, including a juror threatening Johnson by yelling across the courtroom, “If I could get at him, I would tear his heart out.” Finally, Parden believed that Johnson’s lawyers had abandoned him at the end of the trial when they advised him to waive his right to appeal the verdict and accept the death sentence. But Parden and Hutchins also recognized that this was the most racially divisive case in Chattanooga’s recent history. To accept Ed Johnson as a client could have a devastating impact on their legal practice, ending any chance to attract better-paying clients. And they realized that there was such anger about this case in the community that a lynch mob could come after them. Even so, Parden and Hutchins were convinced that the trial had been a sham and that Johnson was convicted in the minds of the jurors before the trial even started. At first, Parden was inclined to say no to Johnson’s father. But Parden changed his mind after Hutchins reminded him of a biblical principle: “Much has been given to us by God and man. Now, much is expected.” The lawyers went to work, preparing a motion for a new trial. On February , Parden and Hutchins stood before Judge McReynolds and announced their intention to file the motion as the first step in appealing the case to the Supreme Court of Tennessee. Their efforts were quickly

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thwarted as Judge McReynolds publicly chastised them. “What can two Negro lawyers do that the defendant’s previous three attorneys were unable to achieve?” he asked the lawyers in open court in front of two reporters. “Do you know the law better than this court or the lawyers who represented the defendant? Are you aware of some legal principle that I have never heard of ? What can a Negro lawyer know that a white lawyer does not? Do you think a Negro lawyer could possibly be smarter or know the law better than a white lawyer?” Judge McReynolds then denied Parden’s request to obtain a transcript of the trial, which was necessary in filing the appeal with the state supreme court. McReynolds told the lawyers he found their actions to be a personal affront. But Parden was undaunted. He saw the case not as the plight of a single black man but as a reminder that laws must protect all people equally, regardless of race. His lofty notions did nothing to protect his reputation in the community. Parden and Hutchins were shunned by whites and blacks alike. The morning of February  found Parden on a train to Nashville, the state’s capital, with a writ noting the alleged flaws in Johnson’s trial as well as a writ requesting a postponement of the execution. The former included three main points. First, the evidence did not warrant a conviction. Second, the mob mentality in the city, including attempts to lynch Johnson, meant the defendant could not receive a fair trial in Chattanooga. Third, the fact that a juror had been allowed to threaten the defendant in open court without admonishment from the judge proved that Johnson did not receive a fair trial. Though the justices had to agree with only one of the three points to reverse the conviction, they denied the petition. Johnson was scheduled to be executed in ten days. The decision did not surprise the attorneys, who had also prepared an alternate plan. On March , Parden headed to Knoxville, where he filed a nine-page petition for a writ of habeas corpus with the United States District Court for the Eastern District of Tennessee. The petition asserted that Johnson had not received a fair trial and that his federal constitutional rights had been violated. The right to file such a petition was provided under the federal Habeas Corpus Act of , passed by Congress to allow defendants in state criminal cases, under certain circumstances, to seek federal relief if their constitutional rights

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were violated or if a state court had denied the defendants due process or equal protection under the law. However, the federal law had been rarely cited or successfully argued, as it did not fully define what federal constitutional rights were covered. Such writs were thus viewed primarily as a delay tactic. If Parden’s requests were granted, the result would be nothing short of revolutionary in the legal world. Parden placed much of his faith in an  ruling by the U.S. Supreme Court that systematically keeping black people off juries by not including their names in the jury pool was a violation of a defendant’s right to equal protection. Parden argued that the absence of black people called to serve on Johnson’s jury should prompt a review by the federal courts. Not willing to rely on a single point, however, Parden also noted other violations in the state court, including Johnson’s rights to a fair trial, his right against self-incrimination, and his right to appeal. The filing of the writ placed Johnson under the physical protection of a U.S. marshal. When Chattanooga sheriff Joseph Shipp went to collect Johnson for execution, the marshal refused to hand over the prisoner until the federal court reviewed the case. The turn of events shocked Shipp, who was in disbelief that the federal government could intervene in the case. On March , Parden, Hutchins, and Lewis Shepherd appeared in federal court before Judge Charles Dickens Clark. While his words closely stuck to those written in his petition, Parden presented his opening statement in charismatic style: he waved his arms, pointed fingers, and his voice boomed. He forcefully reviewed the facts—the lack of blacks on the jury, the lawyers’ abandonment of Johnson, juror misconduct, even a secret meeting between McReynolds, the defense attorneys, and others that indicated the judge would allow a lynch mob access to Johnson if the trial were delayed or a change of venue pursued. Parden played every card he had and was drenched in sweat by the time he had finished. Hamilton County district attorney Matt Whitaker disputed Parden’s claims, denying every point in the petition. “These charges are utterly false, without foundation, and made evidently of a desire to misrepresent the judiciary, and made with a malignant purpose and a wicked heart,” Whitaker told the judge.

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Witnesses were called, and the two sides argued for eight hours. During closing arguments, Parden said testimony supported his claims of a violation of Johnson’s rights to due process and equal protection. He also questioned the fairness of rape allegations in general, pointing to more arrests and stiffer penalties for suspects when the victim was a white woman as opposed to a black woman, pressing the notion that the case was about more than the fate of Ed Johnson. “The law is not being applied equally,” Parden said. “People are being treated differently in Chattanooga because of the color of their skin. And that is a violation of the Fourteenth Amendment’s equal protection clause. The federal government must step in and correct the situation.” Whitaker’s closing statements pointedly questioned the right of the federal court to involve itself in a state case. Three hours later, Judge Clark issued his decision. While admitting that mob rule terrorized the defense, he said there was not enough evidence to prove that black people were illegally excluded from jury duty. Agreeing that Johnson’s trial could easily have been a sham, Clark said his hands were tied and he had no right to intervene because the Sixth Amendment guarantee of the right to a fair trial did not apply to state court cases. Only Congress or the U.S. Supreme Court could grant federal courts such power, and they had not yet done so. Still, Clark said he believed he did have the power to issue a stay of execution to allow Johnson’s lawyers to appeal to the High Court, and he postponed the execution until March . Parden and Hutchins had little time to prepare for their appearance before the Supreme Court. They also faced another hurdle. An attorney could appear before the High Court only if he was sworn in as a member of the Court’s bar by a justice after being recommended by another lawyer member. Few black lawyers fit this description, and, of those who did, all had appeared as cocounsel. Hutchins knew one black lawyer who was properly certified, Emanuel D. Molyneaux Hewlett, and asked for his assistance. Hewlett agreed, but reminded them of another hurdle—federal constitutional issues regarding a fair and impartial trial had never before been reason for the justices to hear a state criminal case. Previous appeals before the Supreme Court had focused on alleged procedural errors. Still, Hewlett believed that the evidence pointing to

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Johnson’s mistreatment in the justice system were strong enough to take before the High Court. The next few days were a blur of sleeplessness and adrenaline as Parden and Hutchins worked ceaselessly at their task. Parden, especially, boned up on the federal statute on habeas corpus appeals, searching prior Supreme Court rulings for some forgotten precedent or other point that would bolster his case. At about : AM on Thursday, March , Parden’s work was interrupted by the sound of people running. He smelled smoke when he opened the back door, and he saw flames in the house next door. Parden and two other men quickly beat down the flames; a nearby gas can indicated that the fire was the work of arsonists who apparently had ignited the wrong building. The mischief did not end there. An hour later, Parden’s wife arrived with two shotgun-toting neighbors to inform Parden that their house had been pelted with rocks and gunshots. The neighbors stayed until daylight to guard the couple, and the acts of intimidation only strengthened Parden’s resolve to continue seeking justice before the High Court. Hutchins arrived at eight that morning with some good news. He had secured enough money to pay for the transcript of testimony taken at the Knoxville hearing. By late that afternoon, Parden had the transcript in hand. The two lawyers and Shepherd put the finishing touches on their paperwork, which included the habeas corpus petition they had filed before Judge Clark, the final order, and the transcript. Parden took the packet to Johnson for his approval. Johnson signed it with an X, and within minutes Parden was on a train bound for the nation’s capital. On March  Hewlett arrived at his office and found Parden there, waiting for him. Hewlett went over the petition and then spent much of the day answering Parden’s questions concerning the rules, decorum, and procedures of the High Court. One such item was Rule , which dictated that a lawyer who wanted permission to present a case to the justices must have been licensed to practice law in a state for at least five years. Another rule stipulated that an attorney was sworn in as a member of the Supreme Court bar by a justice only after being recommended by another lawyer who was already a member. Having already been accepted, Hewlett would make the recommendation for Parden.

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Because Johnson was indigent, certain fees would be waived. The emergency nature of the petition meant one justice would hear only the party seeking the immediate intervention in an ex parte hearing. A full hearing, in which both sides presented extensive arguments to the Court, was not guaranteed. If the justices agreed to hear the case, it would not be held for weeks or possibly even months. Hewlett warned Parden that the Court had not shown any inclination to interfere in matters of state law enforcement and showed little kindness toward criminal defendants. On the brighter side, the petition would likely be heard by Justice John Marshall Harlan of Kentucky, who was the most likely of the nine justices to be sympathetic to their cause. After he was appointed to the Supreme Court, Harlan became a strong advocate for civil rights, terming slavery the “most perfect despotism that ever existed on this earth.” That afternoon, the pair walked to the U.S. Capitol and filed their request. They were told by the clerk to return the following morning in case the Court had any questions. They made plans to meet again the next day on the steps of the Capitol. Parden woke to dismal weather that Saturday and sloshed nine blocks through the rain to the U.S. Supreme Court. A long wait lay ahead of him and his cocounsel in the Old Senate Chamber, which served as the High Court’s waiting room and robing area. Parden felt out of his element. “Mr. Hewlett and I were the only Negroes present, except for the man handing out towels in the bathroom,” Parden later commented. “He sure seemed surprised when I walked in. He looked at my new suit and new shoes and just smiled. Never had I felt so far away from home.” Once called into the dimly lit Supreme Court conference room, the two attorneys were met by Harlan, an imposing man at six feet, two inches and weighing more than  pounds. Addressing Harlan, Parden outlined his reason for the interview: “Here we have a defendant who is certainly innocent, but who has never been afforded the presumption of innocence.” The victim in the case admitted she could not definitively identify her attacker, Parden said. Another key witness came forward only after he was offered a $ reward to do so. He cited violations of Johnson’s Fourth, Fifth, Sixth, and Fourteenth amendment rights.

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Parden further noted that two of Johnson’s appointed lawyers had never before handled a criminal case, and they were denied adequate time to investigate and prepare the case. Attempts to fairly represent their client were met with warnings that any delay in the trial would result in Johnson’s lynching. Because the jury was composed entirely of white men (and evidence suggested that the judge and court officials had purposely attempted to exclude black men) Johnson was denied a jury of his peers. During the trial itself, Johnson had been threatened twice by two different jurors. Parden argued that pretrial emotions and publicity were such that the trial should have been moved to another jurisdiction. In fact, there was such intense pressure from both the public and the media to act quickly to punish Johnson that public officials, including the sheriff and judge, had to do so to keep bloodthirsty mobs at bay. Following the trial, Harlan was told, Johnson’s own lawyers were so worried about their reputations within the community that they dissuaded Johnson from appealing the verdict. While the specific details of Parden’s request for Supreme Court intervention dealt with his client’s case, what Parden was saying was more profound: equal protection for blacks requires more than the show of a lawyer and a trial—it requires the same rights and privileges as whites are accorded in the courtroom. The following day, Parden returned by train to Chattanooga. Bone tired from the fifteen-hour trip, he felt he had done his best but was unsure of the result. He didn’t have long to wait, as Shepherd greeted him at the train with a big grin and a small piece of paper. Parden grabbed the telegram Harlan had sent. “Have allowed appeal to accused in habeas corpus case of Ed Johnson,” it read. “Transcript will be filed tomorrow and motion also made by Johnson’s counsel for formal allowance of appeal of court.” Harlan had notified Judges Clark and McReynolds, as well as Sheriff Shipp, about the stay of execution. Formal paperwork would be sent in a few days, and a date would be set for oral arguments. A time of celebration had arrived. Congratulatory telegrams rolled in from across the country. Shepherd invited Parden and Hutchins to his weekend home in Georgia for their first moments of peace since they had taken on the appeal. While they were gone, a lynch mob began forming

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in Chattanooga. By dawn the next morning, March , all the work Parden, Hutchins, and Shepherd had done for Johnson had been in vain. Johnson was lynched on the county bridge. As his body swung one hundred feet in the air, several rounds were fired into him to make sure there was no life left in him. When he was lowered, another man placed a gun to Johnson’s head and fired five more shots into his skull. A note was pinned to the dead man’s body: “To Justice Harlan. Come get your nigger now.” The praise that Johnson’s lawyers had received for saving their client’s life now turned to blame for his untimely death. McReynolds commented that Johnson was provided protection from the angry mobs while he was in the state court system. “Had the federal courts not interfered and delayed the adjudication of this case, the mob violence we so deplore would never have raised its fierceful face,” McReynolds said. As angry as Parden was at the turn of events, he made a plea for peace, asking for an end to mob violence and the punishment of those who took part in the lynching. But there was little chance for peace in Parden’s own life—at least not in Chattanooga. While offers were pouring in from around the country for speaking engagements, editorials, and articles, the atmosphere in his hometown was increasingly threatening. He and Hutchins were branded troublemakers. They were despised by white lawyers and judges in town, and as a result no one wanted to hire them. They had little choice but to pack up their lives and move on. Parden acknowledged his predicament and, in his farewell address to a church gathering in Chattanooga, again called on help from the federal government. As lawyers, we have been threatened and the city is in an uproar against us, as bedlam reigns. The Sunday following the lynching, Rev. Jones of the white First Baptist Church, preached a very strong sermon against lynching. He was notified through several letters that if he did not retract the statements made in that sermon that the mob would call on him. This he refused to do. The following Saturday night [actually Thursday] his house was set on fire.

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Never before in the history of this country has lynching been brought so plainly within the power of the federal government to punish the perpetrators. Johnson at the time of his death was a federal prisoner. It is now up to the federal government to deal out justice. The federal government did intervene, and Parden cooperated with two secret service agents sent to Chattanooga to investigate. For three hours, he provided them with names, leads, tips, and insights into the attitudes in the city and the atmosphere surrounding the trial. Because of his close ties to the witnesses, he had in some cases gathered more information from them than the agents. He was so helpful that the federal agents requested his help in subsequent interviews. Parden agreed in exchange for promises that witness identities would be protected as much as possible and that he would not have to be a witness, should the case go to trial. He did, however, want a role in prosecuting the potential case. In September  the U.S. attorney general, with the blessing of the U.S. Supreme Court, issued arrest warrants for Sheriff Shipp, five of his deputies, and nineteen members of the lynch mob. These individuals were arrested by U.S. marshals, charged with criminal contempt of the Supreme Court of the United States, and taken by train to Washington, D.C., where they were arraigned and forced to post bond pending trial. It is the first and only such case ever held before the nation’s highest court. The physical and verbal assaults on Noah Parden and Stiles Hutchins only increased after the popular Sheriff Shipp was arrested. Many Chattanooga residents continued to blame the African American lawyers for the mob violence. In fear for their lives, Parden and Hutchins fled Chattanooga in October , never to return again. Parden initially moved to Pueblo, Colorado, then relocated to East St. Louis, Illinois, just across the Mississippi River from St. Louis. He opened a law practice and was immediately successful. After living in East St. Louis for one year, he was elected to the Old St. Clair County board of supervisors and served as chairman of the board’s judiciary committee, according to the St. Louis Dispatch.

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During the three decades that followed, Parden served as assistant state’s attorney in Illinois and Missouri. He was known in the community simply as Lawyer Parden. Parden died of pneumonia in March , at Homer G. Phillips Hospital in St. Louis at the age of seventy-six. He was buried in Booker T. Washington Cemetery at Centerville Station, near East St. Louis. In June , portraits of Parden and Hutchins were unveiled in the Supreme Court of Georgia, and the Criminal Law Section of the State Bar of Georgia created a scholarship in their names for minority and low-income students interested in pursuing a law degree. Several years later, the Illinois legislature passed a resolution honoring Parden as a true American hero. All are testimony to Parden’s courage and his life of noble purposes.

  Curriden, Mark, and Leroy Phillips, Jr. Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism. New York: Faber and Faber, Inc., 1999.

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RACE , PART Y, CL ASS The Contradictions of Octaviano Larrazolo

Phillip B. Gonzales

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C TAV I A N O L A R R A Z O L O ’ S career spanned the rather modest compass of sparsely populated rural New Mexico between the s and , and yet, together with his personal life, it entails a remarkable American story. Born on the frontier in an old Mexican ranching community in the mid-nineteenth century, he came to be elected U.S. senator in the late s, the first foreign-born Latino to accomplish this feat. Larrazolo served but a brief time in the Senate, and quite late in life, when his formidable energies as a public servant were fast diminishing. The pinnacle of his career came ten years earlier, when he was elected governor of New Mexico, also a first for a foreignborn Latino, and the only Mexican native to become a U.S. governor. Larrazolo had a mixed administration as governor of New Mexico. While he succeeded in getting important measures passed, his term also proved stormy. A key aspect concerned the dedicated commitment to the rule of law that he assimilated in his acculturation into the American legal profession. A number of the decisions he made in its name proved problematic for his governorship, alienating some key powers in the state and contributing to his failure to receive a second gubernatorial nomination.

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Octaviano Ambrosio Larrazolo was born in  to a prosperous ranching family in El Valle de Allende in the northern Mexican territory of Chihuahua. By right, the young Octaviano would have inherited the family assets and become a leading rancher like his father. But war intervened to alter this life course, when Austrian archduke Maximilian, under Napoleon’s command, invaded Mexico. As the ensuing strife reached Chihuahua, the archduke’s forces confiscated the Larrazolo property. After the defeat of Maximilian, the Allende community was devastated, and the Larrazolo family failed to recoup its fortune. When Octaviano was eleven years old, his father entrusted him to the care of Jean Baptiste Salpointe, the first bishop of the Arizona Territory, who took the youth with him to be educated in the Catholic schools in Tucson and Las Cruces. During Larrazolo’s five years under Salpointe’s tutelage, he traveled with the bishop about the frontier diocese, where many Mexicans and Indians, and some Anglos, lived, and he was provided with rich learning experiences. Studious, he quickly mastered the English language, learned Latin, and developed his skills in Spanish. As he thought of becoming a priest, in  Larrazolo was sent to Santa Fe, the capital of the New Mexico Territory, to continue his studies at St. Michael’s preparatory school. The lad from Allende took classes in Christian doctrine, orthography, English grammar, Spanish, French, typewriting, geography, algebra, U.S. history, music, bookkeeping, chemistry, assaying, and geometry. He excelled in elocution, public speaking, debate, and oratory, attracting the attention of elders at recitals. Larrazolo finished his formal education at the age of eighteen. Deciding against the priesthood, he returned to Tucson, where he taught school. He considered returning to Mexico, but because family and economic prospects appeared dim there, he moved to San Elizario, Texas, outside El Paso, to be a teacher and school administrator. He took in his parents and siblings, got married, and started a family of his own. Because his obligations were growing and because it met his interest in serving people, the twenty-three-year-old decided to become an attorney, especially after receiving encouragement and advice from a former Arizona chief justice. Financially, and because of family obligations, law school was out of the question, so he hit the books at night with the

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assistance of an El Paso County district judge, while teaching and farming by day. Local attorney friends introduced him to the various issues and branches of civil and criminal law. He also studied American political history and the contributions to democracy of Thomas Jefferson, Alexander Hamilton, and Abraham Lincoln. As his son put it in his biography, at this point in his life, “[h]is public mind was developing.” Not only was Larrazolo’s mind developing, it was becoming steeped in the principles of American jurisprudence and in the ideals of popular participation in civic and political matters. He became an American citizen and soon thereafter received an appointment as chief clerk of the U.S. Circuit Court and District Court at El Paso, where he was exposed to the details and rigors of the legal profession. He next ran for district court clerk of El Paso County, winning handily and getting reelected in . He passed the Texas bar in a relatively short time, became associated with a local law firm, and was twice elected district attorney for the thirty-fourth district of the state of Texas. In El Paso, Larrazolo met Félix Martínez. While maintaining business ties in El Paso, Martínez lived in Las Vegas, New Mexico, where he served as owner-editor of La Voz del Pueblo, one of the two largest Spanishlanguage weeklies in the territory. Lying at the eastern edge of the northern New Mexican settlement area (the so-called Nuevomexicano homeland), where it was the first to greet the heavily loaded trains from back east, Las Vegas by the s had developed into the territory’s bustling center of commerce, industry, and ranching. After the deaths of his father, his mother, a brother, a sister, and his first wife, and his subsequent remarriage, Las Vegas beckoned. Thirty-six years of age and under Martínez’s suasion, he packed his family and moved to the rapidly modernizing New Mexico town in . Larrazolo soon had a wide-ranging law practice, specializing in representing indigents and workers, as well as government agencies in land issues. He was also drawn into New Mexico’s dynamic politics, in which Hispanic natives had been fervently participating since the s, shortly after the United States annexed the Southwest from Mexico. This was significant in the biennial election of the territory’s delegate to Congress, local races, and presidential appointments of the territory’s governor, secretary, and supreme court justices.

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The Republican Party had dominated territorial politics since the s, and the great majority of Spanish-speaking Nuevomexicanos were Republican. However, Larrazolo was a Democrat living in this sea of Republicans. Despite that affiliation, Larrazolo came in contact with an interest group that would figure strategically in his political career, the Nuevomexicano sheep rancher–businessmen in key homeland counties who provided powerful local leadership for the Republican Party. San Miguel County, of which Las Vegas was the seat, was the territory’s largest Republican domain, its machine under the iron-fisted rule of Secundino Romero. This meant that most Democrats were Anglo, and the majority of them lived in the so-called Little Texas counties in the southeastern part of the territory. In the Nuevomexicano homeland, the leaders of the Democratic Party operated out of Las Vegas. Among the Nuevomexicanos of that tough and determined cadre, Félix Martínez and his coeditors at La Voz, Ezequiel C. de Baca and Antonio Lucero, were the major figures in mobilizing the Nuevomexicano electorate for the Democrats. While a streak of southern unreconstructed sentiment ran through Little Texas, the Las Vegas Democrats were of a clearly progressive stripe, holding to Jeffersonian principles of direct democracy and siding with agrarian populism and labor. Trained by liberal Democrats in Texas and son of a supporter of the populist Mexican president Benito Juárez, this ideological bent suited Larrazolo. Soon, he was heralding progressive ideals in articles for La Voz del Pueblo and campaigning for the staunch progressive Harvey Fergusson, the  Democratic candidate for delegate to Congress. With the help of Larrazolo’s campaigning in Spanish-speaking villages, Fergusson defeated Thomas Catron, the titular head of the conservative Republicans. In addition to his alliance and close friendship with the Nuevomexicanos Martínez, C. de Baca, and Lucero, Larrazolo developed key associations with prominent Anglo progressives such as Fergusson, William McDonald, and Andrieus Jones. Larrazolo’s own leadership qualities soon surfaced. Tall and handsome, he exhibited striking talents in English and Spanish expression, earning the sobriquet “the silver-tongued orator.” In  the Democrats nominated him as a delegate to Congress. However, because the Repub-

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licans had gained much political capital from their investment in the campaign for statehood for New Mexico, their candidate defeated him. The pattern was repeated in , although here the results were so close Larrazolo contested the election, accusing the Republicans of fraud. The Republican-dominated House Committee on Territories delayed action on the contest until the next election came up. Larrazolo ran again in , and once again the Republican machinery defeated him. An undeterred Larrazolo stayed publicly active. To classic American progressivism, he added his voice on behalf of equality of opportunity and civil rights for the Nuevomexicano populace, a sociological, if not a demographic, minority in the territory whose impoverished folk were spread across a rural expanse. The issue of their status arose forcefully as New Mexico citizens fought to gain statehood for their territory. Congressional representatives hearing petitions for statehood tended to look on Nuevomexicanos as foreigners unfit for full inclusion into the American union. Still, Larrazolo joined middle-class Nuevomexicanos in advocating for statehood. His speeches sought to dispel the stereotype that they were ill-prepared to govern themselves, pointing out their patriotism, knowledge of American democracy, and Christianity. This work made Larrazolo popular in spite of the fact that he was a Mexicano—a person directly from Mexico, a country that had become distant from the everyday lives of Nuevomexicanos—a label that New Mexico residents sometimes used to distinguish Larrazolo from Spanish-speaking natives. This tendency was facilitated by the fact that a Spanish American identity, which tended to reject an association of being Mexican, had surged to the fore in New Mexico’s changing public arena. In this context, Larrazolo toned down his Mexican roots, and his speeches helped spread the idea that Nuevomexicanos were actually Spanish, not Mexican. Larrazolo fervently maintained loyalty to Nuevomexicanos and the Democratic Party until . The previous year, Congress had finally passed the Statehood Enabling Act, which permitted New Mexico to draw up a state constitution. If Congress accepted it, New Mexico would become a state. One hundred citizens were elected to a convention that would draft a constitution, but as a Democrat in a Republican district, Larrazolo was not among them. However, he attended its sessions to lend counsel.

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The central issue at the convention was whether New Mexico would adopt a liberal or a conservative legal framework. The Democrats pushed for the referendum, the initiative, primary elections, and regulation of corporations, all of which Larrazolo supported as benefiting Nuevomexicanos. But he also joined Republicans in lobbying for guarantees of integrated educational facilities and absolute voting privileges for Nuevomexicanos. In the name of economic development, the Republicans opposed an easily amended constitution and feared that the reform measures would create an unstable political process. As the greater majority of the delegates belonged to the Republican Party, they easily defeated the Democrats’ liberal proposals. On the other hand, the Republicans were not averse to giving what Larrazolo and others proposed as a special consideration to Nuevomexicanos. Because of their support over the years, Anglo Republican chiefs endorsed educational and voting protections—the so-called Spanish American bill of rights—that went into the proposed constitution. So crucial did he consider the Spanish American bill of rights, and despite its conservative cast, that Larrazolo championed ratification of the constitution, stumping to encourage Nuevomexicanos to vote for it in Bernalillo, Mora, Rio Arriba, San Miguel, Santa Fe, and Taos counties. However, this put him at odds with old Democratic friends, including his longtime partner, Harvey Fergusson, who bitterly opposed the constitution. Fergusson regretted Larrazolo’s decision, but vowed to fight the constitution to the last. This difference caused a rift between Larrazolo and his Democratic comrades of some fifteen years. New Mexico voters did indeed vote in favor of adopting the constitution, and in January  President William Howard Taft welcomed New Mexico as the forty-seventh state of the Union. Larrazolo now reevaluated his membership in the Democratic Party. He had always felt that the Democratic leaders had not fully supported his  election bid for congressional delegate because of racial considerations. It also appeared to him that in  the Anglo Democrats in Little Texas had crossed party lines, voting for an Anglo of the opposing party rather than for him, a Mexican. Soon after statehood, Larrazolo resigned from the Democratic Party. In an anguished letter to his former friend, state Democratic chairman

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W. C. McDonald, he emphasized his twelve years of service to the party and his good-faith efforts in striving to build it and bring its diverse elements together “in fraternal fellowship.” He questioned the party’s willingness to fulfill its lofty aspiration to respect the rights of all New Mexico citizens and its ability to run state government in harmony and good will among cultural elements. Analyzing his races for delegate to Congress in  and , he was left with the “humiliating conviction” that the party had allowed itself to be taken over by an intolerance he could not countenance or encourage. News of Larrazolo’s resignation spread rapidly. Republicans, led by Larrazolo’s former enemy, San Miguel County leader Secundino Romero, welcomed Larrazolo to their ranks, not least because of his popularity with the Nuevomexicano electorate. Larrazolo’s resignation also contained a manifesto that launched the native son movement for political equality. After the  election to select the first state officials, in which every Nuevomexicano who ran against an Anglo for major office lost, and only two of sixteen nativos were elected, Larrazolo led a struggle to pressure the political parties to include Nuevomexicanos as nominees. Reflecting their ratio of the state’s population, his group demanded that the parties give half their state ballot nominations to Hispanos while they worked the ranching communities of north-central New Mexico to have voters support Nuevomexicano candidates. Larrazolo incurred the wrath of many Anglos and some Nuevomexicanos for fomenting dissension on the “race issue.” Nevertheless, the first native son victory came in  with the election of Republican Benigno C. Hernández to the U.S. House of Representatives, and  brought the second native son trophy, the election of Larrazolo’s old Democratic Party comrade, Ezequiel C. de Baca, as governor. In part because of the mobilization efforts of Larrazolo’s cadre of activists, C. de Baca beat an Anglo popular with the Nuevomexicano electorate. Ironically, given Larrazolo’s resignation from their party, the Democrats came close to sweeping the state races. Because of his skill in delivering both Nuevomexicano and Anglo votes, the Anglo Republican old guard tapped Larrazolo for the gubernatorial nomination in . Though Hispano Democrats emphasized that their candidate was a native while Larrazolo was Mexican, Larrazolo

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prevailed, winning all the Hispano homeland counties and doing well in traditionally Anglo counties in the eastern part of the state. While he left the progressive wing of the Democratic Party, Larrazolo did not give up on the ideals of the Progressive Era. As governor, he succeeded in getting many reforms passed, including child labor laws and ratification of the woman’s vote. True to his adopted Hispano identification, Governor Larrazolo instituted a native son program in his administration, striving to award  percent of his administrative appointments to Nuevomexicanos, and he worked on behalf of bilingual education. Larrazolo’s major problems as governor began just as the workers in the steel, railroad, mining, and agricultural industries throughout the country were intensifying their demands for better working conditions and employee benefits while the captains of industry intransigently rejected their sweeping demands. Capital’s hardened resolve rendered labor organizers more militant in hundreds of strikes that occurred nationally in –, many involving physical threats, violence, and the destruction of company property. Ideologically electrifying the troubles between labor and industry was the agitation of the International Workers of the World. The IWW had not only opposed the United States’ entrance into World War I but hardly denied the Bolshevik label its enemies pinned on it. East European immigrants made up much of the IWW, which campaigned to sway workers into sustained rebellion. Meanwhile, the campaign known as “ percent Americanism,” initiated by Theodore Roosevelt, President Woodrow Wilson, and major civic organizations, whipped up a fear of foreign nationals clandestinely intent on bringing down the U.S. government and subverting the American way of life. As historian David Kennedy has noted, mainstream progressives were torn by the divisions between capital and labor and were disturbed by class struggle in the postwar years. Reactionary capital and restless labor, as well as the nation’s discord over race, menaced the visions of social harmony and a classless community that informed their middle-class utopia. In a measure of how far he had come in his political Americanization, Larrazolo deeply felt the horns of this dilemma. In his policy statements, he defined government’s role as that of a mediator in the conflict, and

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yet his untiring commitment to the rule of law put him at odds with both labor and corporations at different moments. In his campaign for governor, Larrazolo had received the support of New Mexico’s coalition of labor unions based on his association with the progressive tradition’s support for the worker and on his legal representation of worker grievances while practicing law in Las Vegas. In calling himself a champion of “equal rights and privileges for all the citizens of New Mexico,” he meant it comprehensively to include women and working families. In spite of this record, he ran into trouble with the unions as miners organized in the coalfields of western and northeastern New Mexico. In the  legislature he submitted a measure to prevent hostile acts, riot incitement, and intimidation in times of labor troubles. The bill addressed both labor aggression and the use of hired goons by company officials. However, both the Central Labor Union of New Mexico and the State Federation of Labor opposed it, calling it one of the worst arbitration laws. While the bill failed to make it out of committee, labor began to view Larrazolo as being on the side of corporations. That opinion became a conviction in the fall of , after the coal miners’ union called for a nationwide strike. Having heard reports that miners were generally satisfied with their work conditions, Governor Larrazolo urged them not to strike. If they must, he pleaded that they not use violence or obstruct miners who wished to continue working. Like many other liberals, he feared for a nation on the brink of collapse, warning of the “red” IWW propaganda and flaying at foreign influences that had instigated the threat of destruction and overthrow of the American government. As strike day neared, Larrazolo called for the American Legion to join with the mounted police in preparing for any emergency. Claiming he did not want to be alarmist, he nonetheless heard “the hoarse rumbling of internal forces gathering and about ready to burst into eruption like a destructive volcano, and threatening the very existence of the only real popular and constitutional government that has ever existed on earth.” If the IWW, the Bolsheviks, and radical foreigners did not like the United States, “the road was open for them to return to their own countries, and if they did not have a country to return to, they could simply go to hell.”

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If there was a political lapse in such pronouncements, it was in not also emphasizing the mine company’s propensity for hiring armed vigilantes to “deport” union strikers out of the county. In any case, New Mexico miners did walk out on the day of the national strike. Claiming a “state of insurrection,” Larrazolo declared martial law in Colfax and McKinley counties. Federal troops from El Paso arrived to occupy the mining districts, yet coal production was sharply curtailed, causing hardship on businesses and homes. Larrazolo ordered nonworking miners evicted from the coal districts and union activists arrested. While this heavy handling of the strike drew public praise, labor representatives condemned him for ordering martial law when no violence had occurred. Larrazolo lifted martial law in McKinley County two months after declaring it. However, on New Year’s Day  a prominent labor lawyer issued a public indictment of the governor, calling the corralling of miners and their families violations of the U.S. and New Mexico constitutions. “I will not trust to the paucity of my own diction in condemning your action,” Arthur Hannett said in an open letter, “but will quote to you the words of the Supreme Court of the United States and other giants of Anglo-Saxon freedom, who have been fighting the battles of constitutional government to preserve the liberties of a free people for the past seven hundred years.” Hannett denied that foreign elements had exacerbated the conflict in the mines, emphasizing that the large majority of the workers were Anglo-Saxons, “whose ancestors have labored, fought, bled and died for constitutional government long before you immigrated from our sister republic in the south.” Larrazolo, he added, “needed perspective on the constitutional guarantees” of that government. Larrazolo hardly needed a lecture on the constitutional principles of American democracy, nor did he appreciate Hannett’s references that gratuitously flung ethnic lineage in the spirit of  percent Americanism. Hannett certainly would not have done so if Larrazolo had been a native “Spanish American.” While his remarks represented the depth of labor resentment against Larrazolo, it was no coincidence that Hannett was a rising figure in the Democratic Party, destined to become governor himself later in the s.

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But staying true to the principle of social stability, Larrazolo ordered a special legislative session for the “just purpose” of enacting necessary legislation on the strike question, sternly warning the mining and manufacturing workers who would “scatter far and wide theories and doctrines of revolutionary tendencies, counseling, and actually creating, armed opposition to law and order.” He requested funds so that the National Guard could exercise “public defense” apart from the federal government. The legislature passed a weak bill, but his purpose, to repress strike activity, appeared clear to labor. After the session, union leaders attacked the administration’s handling of the coal miners’ strike, much to the pleasure of Democrats looking forward to the nominating convention later in the year. Larrazolo had all along claimed that it was the responsibility of capital, as well as labor, to iron out the problems inherent in industrial production. It was thus with some consistency—despite the possible political consequences—that he sought to curb the economic power of New Mexico’s largest private businesses, another element in his progressive package. Larrazolo led the  legislature into passing a progressive income tax law to include private corporations. When questions concerning its constitutionality arose, the Chino Copper Mining Company threatened to sue for its repeal, and during the  special legislature, Larrazolo requested that the tax be adjusted to conform to the state constitution. The lawmakers repealed the previous income tax law, but rather than pass the stronger one Larrazolo wanted, they provided for only a study of the issue. Larrazolo vetoed the repeal, stating that he wanted a tax law in effect while courts considered the original law’s constitutionality. After the special session, the governor appointed a special commission to devise efficient methods for implementing the tax, which would have applied to mining revenues for the previous three years. The most powerful Republican leaders opposed Larrazolo’s method of equalizing taxes, as did mining and railroad lobbyists closely associated with U.S. senator Albert Fall. A key critic and an investor in mining, Republican national committeeman Holm Bursum, called the law a reckless attack on legitimate industry, sure to curtail the state’s economic prosperity and possibly “array class against class, incite class hatred between its citizens.”

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Bursum, along with Fall, had been instrumental in drafting Larrazolo for governor. A third interest group to become alienated from the Larrazolo administration consisted of the Republican chiefs in Hispano counties. Because of his steadfast defense of their people, Larrazolo should have retained the support of the Republican Nuevomexicanos who accepted him after his defection from the Democrats. And yet, in quick succession, Secundino Romero in San Miguel County, Eduardo Otero in Valencia County, and Jesús Romero in Bernalillo County turned against him. The most important matter concerned patronage. In essence, county chiefs were ward politicians who expected the spoils of electoral conquest, but this system went against the governor’s belief in good government and individual merit, and so he refused to grant the county leaders’ demands. That the Nuevomexicano Republican leadership would turn on Larrazolo was highly significant. Rejection by their delegates to the Republican nominating convention would spell catastrophe for any gubernatorial aspirant. Battle lines hardened between elements who felt betrayed by the governor and his progressive supporters. The Santa Fe New Mexican and the Albuquerque Morning Journal stayed with Larrazolo, relishing an all-out fight to break control of the Republican Party by corporate “gang” interests. The Albuquerque Evening Herald, with its close ties to the Republican chiefdom, inflated every grievance lodged against the Larrazolo administration. Different Republican circles met in secret to deliberate strategies for the nominating convention. A set of Nuevomexicanos denounced Larrazolo and put forth the name of another from its ethnic group. Because it appeared that President Warren G. Harding would appoint Senator Fall to his cabinet, it was crucial that a Republican win the governorship. Since Larrazolo appeared vulnerable, Fall began to express opposition to him. The Republican strategists decided to offer Larrazolo the U.S. congressional nomination in exchange for a peaceful withdrawal from the gubernatorial race, but Larrazolo insisted on being a candidate for governor “and nothing else.” In noble progressive pose, he emphasized his commitment to the interests and needs of the people based on well-defined issues, “not popularity.” He denounced mining interests’ opposition to him and to his veto of the bill repealing the

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income tax law. Still, the New Mexico Federation of Labor passed a resolution protesting the election of Governor Larrazolo because he had declared martial law the previous winter. In New Mexico’s system of indirect primaries, the fight against Larrazolo began in county conventions, where state convention delegates were selected. The state Republican committee figured that the way to defeat him was to have delegations go uninstructed. In the end, only one convention went to Larrazolo, though he retained strong pledges in others. As no challenger appeared dominant, Larrazolo went to the state convention confident of victory. Agitated jockeying behind the scenes characterized the boisterous state convention, much depending on attempts by Republican chiefs to influence county delegates during the balloting. Larrazolo challenged the bosses to let the delegates vote untrammeled and defended his arrests during the coal miners’ strike and his efforts to correct the corporate tax laws. However, some Nuevomexicanos rationalized their disassociation from “Larrazolo’s people who come from Mexico,” and the keynote address of Republican national committeeman Bursum condemned “any agency which would seek to incite class prejudice between either industrial or social activities” as “promoting a menace to orderly government.” Placing the governor in nomination, progressive Santa Fe attorney A. B. Renehan defended Larrazolo’s dispatch of troops during the coal strikes as having preserved the “constitutional peace,” and he deflected the matter of the governor’s national origins by saying that he had come to New Mexico a Mexican and had come out an American. However, Secundino Romero, the San Miguel County boss who had initially welcomed Larrazolo to the Republican Party, advanced the nomination of another Nuevomexicano, District judge Everett Mechem, saying, “We bring you no candidate from the republic of Mexico—what we want and what we will get solidly behind is a native son of the soul of the sunshine state.” In the balloting, Larrazolo started out strong, but the tide turned with Bursum’s expert horse trading behind the scenes. Mechem won on the third ballot. After his ignominious defeat, Governor Larrazolo joined other Republicans who openly defected from their party for its “shameful”

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treatment of the governor. In a bitterly fought campaign, Republicans, including Mechem, won the majority of the major offices, although by close margins. Summing up his gubernatorial reign, Larrazolo made major contributions in the crusade for Nuevomexicano political equality, and at key moments he shepherded some important labor and women’s legislation. However, his Mexican origins in a land where contemporary Mexican immigration had relatively little impact are a metaphor for the isolation that befell him as governor when strong extended ties were sorely needed. Personality played some part. Quite the Victorian rector, Larrazolo expected all to follow his strict devotion to matters of right. At times that inflexibility may have prevented him from compromise when it might have been the best course of action. On the other hand, opponents often demonstrated even more rigid adherence to their positions, and the fundamental problems Larrazolo encountered as governor were not of his making. In general, he fell victim to a political environment filled with entanglements, contradictions, traps, and competitive ruthlessness. New Mexico’s infancy as a state created a free-for-all among various interest groups seeking power and influence, and an official with an active agenda had little chance to survive in such a cutthroat atmosphere. Indeed, in the political volatility of the s and s, only two New Mexico governors were renominated for a second term, and one lost. Party competition weighed heavily in all major issues, including the conflict with labor. Had the key union leader not been a die-hard Democrat with an interest in carrying on an extended opposition to the Republican governor and turncoat from his party, the issue of martial law need not have loomed so crucially in the election, particularly since Larrazolo’s support of economic equality was clearly shown in his first legislative session. One researcher has argued that Larrazolo was a “prophet” of another time when liberalism would come to prevail in the political system and among the electorate in general. Another important factor was the two-year gubernatorial term, which proved particularly consequential in regulating corporations. After his experience with labor unions, it would have been best to take some time before enacting tax reform. But Larrazolo was rushed into action by a

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time limit that crimped his ability to enlist the cooperation of corporate interests beforehand, alienating an important pillar of support. After stepping down from the governor’s seat, Larrazolo moved to El Paso, but he soon returned to New Mexico, where he once again became politically active while carrying out a successful legal practice with Mexican interests. Though he did not attain the degree of power that had led him to the governor’s mansion, his stature grew as an elder statesman. In , based on the support of a rising progressive Republican, Bronson M. Cutting, he won the special election to fill the seat of suddenly deceased Senator Andrieus Jones. In sending him to Washington, the voters paid tribute to Larrazolo for a life of public service. While there, he took seriously ill and was forced to return home. While bedridden, he summoned an associate to help look after some official business. True to American constitutionalism to the end, he admonished the young man that the law was “a jealous mistress, you must not neglect her call.” His health rapidly worsened, however. Octaviano Larrazolo died on April , , at the age of seventy.

  Córdova, Alfred C. “Octaviano Ambrosio Larrazolo, the Prophet of Transition in New Mexico: An Analysis of His Political Life.” MA thesis, University of New Mexico, . Córdova, Alfred C., and Charles B. Judah. Octaviano Larrazolo, A Political Portrait. Albuquerque: Department of Government, University of New Mexico, . Larrazolo, Paul F. Octaviano A. Larrazolo: A Moment in New Mexico History. New York: Carlton Press, . Twitchell, Ralph Emerson. The Leading Facts of New Mexican History. Vol. . Cedar Rapids, IA: Torch Press, . Vigil, Maurilio E. Los Patrones: Profiles of Hispanic Political Leaders in New Mexico History. Washington, DC: University Press of America, . Zeleny, Carolyn. “Relations Between the Spanish-Americans and AngloAmericans in New Mexico: A Study of Conflict and Accommodation in a Dual-Ethnic Situation.” PhD dissertation, Yale University, .

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LOUIS MARSHALL Attorney General of the Jewish People

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T T O O K C O U R A G E T O S TA N D up for civil rights in America during the first three decades of the twentieth century. It was the heyday of Jim Crow—a system of laws and customs that enforced segregation in the South. It was also high tide for a nativist movement that viewed with suspicion all “foreign” ideologies, religions, and ethnic groups. From coast to coast, African Americans, Asians, Catholics, immigrants, Irish, Jews, Mormons, Native Americans, socialists, and others, were discriminated against to varying degrees. In this environment, people who held unpopular points of view courted ruin. To make matters worse, World War I triggered a government crackdown on dissent, and the nation experienced its first Red Scare, during which suspected radicals were swept up in government dragnets, detained without trial, and often deported. Courts showed little sympathy for civil rights. Demagogues ridiculed those who spoke truth to power. Nevertheless, an intrepid few defended the values enshrined in the U.S. Constitution and the Bill of Rights. One was Louis Marshall. Cruelly forgotten by history, Marshall was the foremost champion of the civil rights of Jews between  and . While often affectionately

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referred to as the attorney general of the Jewish people, his efforts were not confined to his coreligionists. He fought at the barricades of some of the great civil rights battles of his era and made presidents and foreign powers listen to the cause of the oppressed. In the words of Supreme Court justice Benjamin Cardozo, Marshall was “a great lawyer; a great champion of ordered liberty; a great leader of his people; a great lover of mankind.” The son of poor Jewish immigrants, he rose though sheer native ability and inexhaustible energy. Only in America could he have accomplished what he did, when he did. Marshall was born in Syracuse, New York, on December , . His parents had immigrated to the United States from Germany virtually penniless. His father found work on a construction gang in New York City and then became a porter and peddler. Eventually he and his wife settled in Syracuse and established a hide, fur, and leather business from which they eked out a living. Marshall remembered his parents as “worthy people who possess[ed] the pioneer spirit.” His father was “industrious, conscientious, law-abiding,” and imbued with “deep religious feeling.” His mother instilled in him a love of literature by reading to him in German, the only language she knew. One of Marshall’s strongest emotions as a child was gratitude that he was born in America. His parents told him stories about how Jews were persecuted in Germany. Such bitter memories were “little calculated to inspire love or tender recollections” for the Old World. But in contrast to the comparatively idyllic childhood Marshall enjoyed, his parents’ travails taught him to appreciate “the beauty of the American ideal.” He became fiercely patriotic and pledged “to defend America and American principles with all my soul.” By the same token, Marshall learned from firsthand experience that American Jews were not free from discrimination. Christian classmates made disparaging remarks about Jews following daily Bible readings in school. And every year on Good Friday, emotional teachers presented the Crucifixion story in such a way that, after recess, Jewish students “were violently attacked, they were insulted, and it took some weeks before the usual amicable relations were, at least upon the surface, restored.” As a student, Marshall was fascinated by American history. He joined a debating club and began studying how America’s “laws had been

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drawn and its institutions founded.” He was particularly interested in the Constitution, which he came to revere “as the enduring document of all time,” the “holy of holies, an instrument of sacred import.” After graduating from high school, he served as an apprentice in a Syracuse law firm. He read every law book he could lay his hands on and eventually saved enough money to pursue a formal legal education. In  he enrolled at Columbia University’s law school, where the faculty instantly recognized his intellectual promise. Because he was blessed with a photographic memory, professors would call on him in class to cite the name of a case, along with the book and page where it was located, which he was invariably able to do. To economize on time and money, he compressed the two-year course of study into one—a feat no one had ever before accomplished. In  Marshall returned to Syracuse and began practicing law with William C. Ruger, who later became chief judge of New York’s highest court, the Court of Appeals. Marshall had an extraordinary aptitude for appellate work, which involved researching and writing briefs and arguing points of law. He was “a magnificent advocate,” one judge recalled, “skilled in the techniques of the profession, painstaking and thorough in preparation, blessed with a grace of manner, a pleasing voice and flashing wit, a master of anecdote, vigor of speech and a tone of high earnestness.” By the time he was forty, he had argued over  appeals before the Court of Appeals. Although Marshall was active as a business and corporate lawyer, it was his expertise in constitutional law that first brought him fame. When he was only thirty-four, he was appointed to a special commission to revise the state constitution. He became one of America’s preeminent constitutional advocates, reportedly arguing more cases before the U.S. Supreme Court than any private attorney in American history. No contemporary was as successful in persuading courts to strike down statutes as violative of the federal or state constitutions. By the s Marshall had ascended to the top of the legal profession in Syracuse. With little left to accomplish in his hometown, he accepted an offer in  from a law school classmate, Samuel Untermeyer, and another prominent attorney, Randolph Guggenheimer, to join their law firm in New York City. The move created unique opportunities for

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Marshall. The new law firm catered to the needs of the wealthy, assimilated German Jewish elite, which dominated Jewish communal affairs during the late nineteenth and early twentieth centuries. From this exclusive circle, Marshall’s legal genius attracted a prospering clientele of bankers, brokers, and businessmen. It did not take long before he became their intellectual leader and was drawn into a variety of local civic and Jewish communal affairs. In  Marshall assumed the role that defined him in the public’s consciousness for the next quarter century: American Jewry’s principal defender. His springboard was the anti-Semitism of Dr. Melvile Dewey, founder of American library science. Best known for inventing a decimal classification system of books for libraries, Dewey had served as the New York state librarian since . He was also president of the Lake Placid Club, which ran an exclusive resort hotel in Lake Placid, New York. Like many hotels in the early twentieth century, the Lake Placid Club banned Jews as guests. In fact, its advertising circulars explicitly so stated, likening Jews to consumptives and invalids: No one will be received as a member or guest against whom there is physical, moral, social or race objection or who would be unwelcome to even a small minority. This excludes absolutely all consumptives or invalids whose presence might injure health or modify others’ freedom or enjoyment. This invariable rule is rigidly enforced; it is found impractical to make exceptions to Jews or others excluded, even when of unusual personal qualifications. Because social discrimination of this sort was not then illegal, Jews ordinarily could do little, if anything, to fight back. But Marshall found a way. As the state’s librarian, Melvile Dewey’s salary was paid for by the citizens of New York State, , of whom were Jewish. In Marshall’s view, public officials should not be leaders of discriminatory practices, even in their private affairs. He thus decided to “mak[e] a public lesson of Dewey.” Although some colleagues counseled against this—lest it stir up further anti-Semitism—Marshall answered that one “who would be free, himself must strike the blow.” Turning the other

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cheek was “an exercise to which we have become accustomed by the practice of centuries. It has, however, grown somewhat monotonous.” Marshall swung into action. He drafted a petition to the state university’s board of regents demanding Dewey’s dismissal as state librarian, and he had the petition signed by distinguished figures in the Jewish community. Marshall argued that Jewish taxpayers “have a right to demand that one who is a public servant representing all the people of the state, of whom they are a part, so long as he remains such servant and receives compensation from the State Treasury, shall not with impunity, pander to the lowest prejudices of which man is capable.” To allow Dewey, a known anti-Semite, to remain as state librarian would undermine “the foundations of the State government” and establish an “infamous precedent.” “Dewey may today impose obloquy upon the Jew,” Marshall warned, “but tomorrow he may attack the Catholic, the next day the Methodist.” In response to the petition, the board of regents held a public hearing at which Marshall questioned Dewey. At one point Dewey stated that he got along well with Jewish staff members at the hotel. Seizing on this patronizing remark, Marshall said it was “ten times worse than the original insult.” American Jews no longer wished to be tolerated in this fashion, he observed. Under mounting pressure, the board censured Dewey, who later resigned as state librarian. Marshall was thrilled. “I have succeeded in getting Dewey’s scalp,” he told a friend. “The result is most gratifying.” More important, he had proved his point, “that a public officer could not, directly or indirectly, identify himself with any movement that smacked of anti-Semitism.” By the s Jews had made great progress in establishing their place in American life. They were on the threshold of economic security and beginning to exert a measure of political influence. One area remained, however, in which their full citizenship rights were impaired. Under the terms of the Russian-American Treaty on Trade and Navigation of , Jewish American citizens were not free to travel to Russia. The treaty granted reciprocal rights to American and Russian citizens to enter and conduct business in the other country, provided they submit “to the laws and ordinances there prevailing.” By all rights, this

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should have entitled all American citizens, without regard to religion, free entry and movement in Russia. But Russia interpreted the treaty to allow it to discriminate against American Jews. Citing the treaty’s laws and ordinances provision, the Czarist regime took the position that because Jews living in Russia had no civil rights, American Jews entering its territory would be subject to the same economic and residential restrictions. Russia was then the great international bastion of anti-Semitism, and few Jews wished to travel there. But Russia’s passport policies threatened to relegate American Jews to second-class citizenship in their own country. The State Department began lodging protests with Russia in the s because of its decision to deny visas to American Jews, and Congress issued a series of resolutions to the same effect throughout the s, s, and early s. Similarly, the Democratic and Republican parties condemned Russia’s interpretation of the treaty through planks in their platforms for the presidential campaigns of  and . Still, Russia persisted in discriminating against passport holders of Jewish faith. Russian bureaucrats even suggested that America disguise passports for Jews wanting to travel to Russia, “thereby sparing itself the embarrassment of having its citizens discriminated against by a ‘Friendly’ foreign power.” Years of diplomacy had come to naught. Clearly, a new strategy and leadership was needed. Louis Marshall answered the call. Marshall was well familiar with the passport issue. A staunch Republican, with ties to the presidential administrations of Theodore Roosevelt and William Howard Taft, he spent several years lobbying for an aggressive approach toward Russia. He now recognized that the only way to get Russia to change its behavior was if America abrogated the treaty itself. Marshall publicly unveiled his position on January , , in his keynote address at the convention of the Union of American Hebrew Congregations held in Albany, New York. He demanded that President Taft abrogate “every treaty now existing between the United States and Russia.” He based that demand not on the ground of wrong done to Jews but rather on the ground of wrong done to Americans: “It is not the Jew who is insulted; it is the American people.” Thirty-five thousand copies of Marshall’s speech were distributed to key leaders in American society, setting off shockwaves that quickly

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reached the White House. Deluged with protests, Taft summoned Marshall and other Jewish leaders to a meeting on February , . Taft made clear he did not support abrogation and expressed concerns about the potential impact on American investments in Russia. A disgusted Marshall shot back: “We cannot get rid of anti-Semitism merely by speaking with bated breath, Mr. President.” Marshall normally preferred discreet, behind-the-scenes communication with government officials. After the meeting with Taft, however, he realized that his customary restraint would be counterproductive. “If the Jews took no action, the President and the Congress might well argue that they who are directly involved are indifferent, then there would be no occasion for a resort to drastic remedies.” Marshall saw no alternative but to launch a public, frontal campaign aimed at changing Taft’s mind. Marshall tirelessly mobilized political allies, community and civic leaders, and the press. He gave countless addresses and wrote innumerable letters and memoranda. He shrewdly used the implied political strength of Jewish voters while at the same time pointing out that Russia had also discriminated against Protestant and Catholic clergymen. He wrote to Baptist congressmen when Russia denied missionaries admittance and Catholic congressmen when priests were banned. He also testified for hours before the Foreign Affairs Committees of the U.S. Senate and House of Representatives. Marshall’s efforts bore fruit. Leading newspapers, magazines, clergyman, and fraternal organizations condemned the trade and navigation treaty. Numerous state legislatures passed resolutions urging abrogation. The campaign reached its climax on December , , at a rally held in New York City that included Woodrow Wilson, who would subsequently defeat Taft in the presidential election; the Speaker of the House of Representatives, Champ Clark; and newspaper tycoon William Randolph Hearst. A week later, by a vote of  to , the House of Representatives passed a resolution instructing Taft to notify Russia of America’s intention to abrogate the treaty. A parallel resolution was submitted to the Senate Foreign Relations Committee and was certain to pass. Reading the writing on the wall, Taft did not wait for the Senate’s concurrence. He directed his secretary of state to notify Russia that it was necessary to allow the treaty to expire.

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This was an extraordinary victory. Never before had any nation renounced its treaties with another government principally because the latter discriminated against Jews. Marshall, who deserved much of the credit, was elated: “I feel as though I had won the greatest law suit in which I have ever been engaged, or ever will be engaged. It operates as the removal of the last civil disabilities to which Jews of this country have been subjected. . . . It is a lesson to all the world, by showing the regard in which Jewish citizens are held by this country.” Over the years, Marshall lost his share of battles—but none was more painful than the miscarriage of justice that befell Leo Frank. “The Frank case,” writes historian Philip Dray, “is one of the great national criminal dramas, on a par with the Lizzie Borden trial, the Lindbergh kidnapping, and the O. J. Simpson case.” Frank was a Jewish businessman from New York who moved to Atlanta, Georgia, to manage a pencil factory. In  he was arrested on charges of raping and murdering Mary Phagan, a thirteen-year-old girl who worked for him. The prosecution’s case was flimsy—based on rumors, unsubstantiated charges, and perjured testimony. The chief witness against Frank was Jim Conley, an ex-convict with a record of assaults and burglaries, whose own lawyer believed him to be the true murderer. Conley was African American, and in the segregationist South that ordinarily would have assured Frank’s acquittal. No white man had been tried and convicted in Georgia on the word of an African American. But Frank was no ordinary defendant, and this was no ordinary time. He was a Northern Jew, and many old-line native whites in Georgia were alarmed by developments in the North, particularly the influx of millions of immigrants, the growth of urban crime, and the rise of industry. Anyone who threatened the established Anglo-Saxon culture of the South needed to be put in his place. African Americans, of course, fell into this category, but so did Northern Jews, who were seen as a symbol of the new urban, industrial world. Moreover, after the police arrested Frank, Atlanta was whipped into an anti-Semitic frenzy by the media, political demagogues, and an overzealous prosecutor. Frank never had a chance. As the trial drew to a close, a mob gathered inside and outside of the courtroom. Men with rifles stood at the open windows, some aimed at the jury, some aimed at the judge. The

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mob repeatedly chanted a loud and clear message: “Hang the Jew or we’ll hang you!” Although the judge who tried Frank’s case believed that the prosecution had not proven its case, he told one of Frank’s lawyers: “Why, if Christ and all his angels came to show this man innocent, they would still vote him guilty.” The jury returned the inevitable guilty verdict, and the city of Atlanta rejoiced. The mob lifted the prosecutor— later elected Governor of Georgia—onto their shoulders in triumph. The next day Frank was sentenced to death by hanging. Louis Marshall viewed the case “as almost a second Dreyfus affair” and agreed to join Frank’s legal team. Believing Frank’s position to be “legally and morally impregnable,” Marshall confidently took the case to the U.S. Supreme Court. Every seat in the courtroom was filled when the justices heard oral argument. Over two days, Marshall passionately made his case, arguing that the conduct of Frank’s trial in the midst of a mob constituted a judicial lynching and denial of due process of law. But on April , , the Supreme Court rejected Frank’s appeal, holding that “as long as a state court observed the form of a trial the federal government had no right to go beyond the form and inquire into the spirit which animated the trial.” Marshall was devastated. “I shall never again be able to feel that reliance upon the courts in respect to the accomplishment of the ends of justice, that I have hitherto entertained.” Frank’s last remaining hope was to obtain executive clemency from Georgia’s governor, John M. Slayton. Outside the state, a swelling chorus of voices called for Frank’s life to be spared. Slayton was inundated with pro-Frank petitions, newspaper editorials, letters from fellow governors, legislative resolutions, and the like. Ultimately, with the help of Marshall, Slayton courageously commuted Frank’s death sentence to life in prison. Marshall immediately sent Slayton a letter of thanks: “You have earned the eternal gratitude of the good people of Georgia and the admiration of every lover of justice in America.” Marshall did not know the people of Georgia as well as he thought. Most were outraged by Slayton’s actions, and an angry mob, including community leaders, decided to take matters into their own hands. On the evening of August , , the mob kidnapped Frank from jail, transported him near where Mary Phagan’s family lived, and lynched him.

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After the Frank atrocity, Marshall developed a greater appreciation for the plight of African Americans, who for generations had been lynching victims. He also saw that minority rights could be safe only within a general context of freedom and that the ill-treatment of one minority had implications for others. To protect themselves, Jews needed to be willing to protect other minorities. Marshall turned outward and assumed the responsibility and burden of securing civil rights for all. Representative of these efforts was the free legal counsel he provided the National Association for the Advancement of Colored People (NAACP) in some of its early legal battles in the U.S. Supreme Court. One of Marshall’s greatest triumphs was the  case of Nixon v. Herndon, in which he persuaded the Court to strike down a Texas statute that prohibited African Americans from voting in primaries. He also served as a member of the NAACP board of directors, helping rally public opinion against the Ku Klux Klan, which was then a potent political and social force. Catholics also found a staunch defender in Marshall. He played an important role in helping the Catholic Church win the  landmark case Pierce v. Society of Sisters of the Holy Name, which involved a constitutional challenge to an Oregon law requiring all children between the ages of eight and sixteen to attend public schools. The law was aimed at members of the state’s Catholic minority who sent their children to parochial school. In the U.S. Supreme Court, Marshall argued, “The State may [not] come in and take away from [parents] that sacred right and the performance of the duty which they conscientiously believe that they owe to their children and to future generations.” The Court agreed and upheld the right of parents to send their children to either religious or secular private schools. Numerous others benefited from Marshall’s advocacy. In California he represented Japanese Americans protesting state legislation that limited their rights to hold land. He fought against a water project in the Rio Grande valley that would have stolen the water rights of the Rio Grande Pueblo Indians. He headed a delegation of lawyers that protested against the American occupation of Haiti. And he defended five Socialists who had been elected to the New York State Assembly but who were refused their seats on grounds of disloyalty.

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The denouement of World War I once again propelled Marshall onto the international stage. The Great War had been a catastrophe for all, but no people bore a greater burden than the Jews of eastern Europe. In addition to hardships suffered by the region’s civilian populations generally, Jews were targets of violent pogroms, brutal massacres, and economic boycotts. As the war drew to a close, Marshall concentrated on protecting these Jews through the postwar settlement, and he traveled in February  to Paris, where representatives from the twenty-seven victorious Allied nations convened to draw the outlines of the new Europe. Over the next four months Marshall served as the principal negotiator at the peace conference for all Jewish national delegations, including the United States, Britain, France, Italy, and the eastern European nations. In Paris the western leaders established a chain of successor nations out of the wreckage that was the former Austrian, Russian, German, and Turkish empires. The muddled ethnography of these lands made it impossible for the emergent new states to contain entirely homogenous populations. As a consequence, the newly created countries had enclaves of minorities that needed special protection. The question was how best to protect these minorities. The answer, Marshall contended, was to force the nascent governments to write provisions into their constitutions recognizing the civil rights of minorities living within their borders. After unifying the Jewish delegations behind this position, Marshall sought to persuade the assembled statesmen of its merit, starting with the president of the United States, Woodrow Wilson. In meetings and correspondence with Wilson and his advisers, Marshall made the case that the human rights of all minorities—not just Jews living in eastern Europe—required legal protection against governments that otherwise might act solely at the will of nationalist majorities. He held up as a model America’s Bill of Rights, urging that its constitutional guarantees for minorities be extended to the fundamental law of all nations. Marshall’s advocacy carried the day, winning the president’s assurance that he would lend his full support to civil and religious rights for such minorities. With Wilson on board, other Allied leaders fell in line. The new states in eastern Europe were required to sign treaties obligating

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them to guarantee all religious, racial, and linguistic minorities full civil and political rights. Minorities were also given the right to use their own languages and to maintain their own institutions in certain regions. “Louis Marshall’s diplomatic achievement was an extraordinary one,” historian Howard M. Sachar writes. As a matter of law, Jews living in the successor states became part and parcel of the citizenry, with the guarantee of constitutional rights. Marshall regarded this as “the most important contribution to human liberty in modern history.” But such guarantees proved illusory; they were ignored in countries such as Poland and Romania, where anti-Semitism and nationalism remained powerful forces. The Jews of eastern Europe again found themselves physically insecure and psychologically desperate. And just two decades later they were virtually wiped off the face of the earth by Nazi Germany and its collaborators during the Holocaust. Less than a year after returning from Paris, Marshall witnessed the beginning of the most serious anti-Semitic episode in American history, perpetrated by the country’s most celebrated industrialist: Henry Ford. In the s, Ford was an icon. He made available to the masses an affordable automobile, the Model T, which revolutionized the American way of life. As Ford biographer Steven Watts observes, “a love affair [existed] between [the] pioneering automaker from Detroit and common Americans that transcended all reason.” Ford even considered running for president, as polls showed that at one point he would have had widespread support. Along with his automobile company, Ford owned the Dearborn Independent, a newspaper that he made his dealerships distribute to customers and that transmitted his views to the American people unfiltered by the mainstream press. On May , , the Independent initiated a series entitled “The International Jew: The World’s Problem,” which ran on the front page for ninety-one successive weeks. The series described a worldwide Jewish conspiracy to capture social, cultural, and economic power through financial and political deception. Ford’s admitted motivation for running the series was “to awake the Gentile world to an understanding of what is going on. The Jew is a mere huckster, a trader who doesn’t want to produce, but to make something out of what somebody else produces.” Ford collected and published the series in book form as

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The International Jew and disseminated hundreds of thousands of copies. The books struck a chord, as evidenced by the increase in the Independent’s circulation from seventy thousand in  to seven hundred thousand by . The result was an increase in anti-Semitic discrimination in parts of the country. At first, Marshall could not believe anyone would take seriously the preposterous claims published in the Independent. But he soon recognized the gravity of the threat. On June , , he fired off a telegram to Ford accusing him of “palpable fabrications” that “constitute a libel upon an entire people who had hoped at least in America they might be spared the insult, the humiliation and the obloquy which these articles are scattering throughout the land.” Thereafter, Marshall used behindthe-scenes pressure to try to get Ford to stop. In , for example, Marshall met with President Warren G. Harding, seeking the White House’s intercession with Ford. Over the course of several years, Ford recognized that his anti-Semitic tirade was bad for business. The press and politicians turned against him, an informal Jewish boycott of his products took hold, and some Gentile firms with Jewish trade took their business elsewhere. Added pressure came from three major libel suits against Ford by Jews who were personally attacked in the Independent. In the summer of , Ford reached out to Marshall to negotiate a settlement. Marshall dictated terms, the most significant of which was that Ford had to sign a letter containing an unqualified retraction of the charges against the Jews, together with a complete apology, all of which would be written by Marshall. Ford accepted and Marshall drafted the letter of retraction and apology for Ford’s signature. Ford signed the letter without changing a word and authorized its release to the press. He later shut down the Independent and dramatized the event by traveling to New York City to meet with Marshall at his law office in January . In front of the assembled media Ford and Marshall shook hands and exchanged pleasantries. Ford offered Marshall a brand-new car, but Marshall declined, saying he was “devoted to pedestrian locomotion.” The two men then adjourned to Marshall’s inner office for a conversation. As recalled by Marshall, Ford said that “the Independent no longer exists . . . that he had destroyed every copy of the pamphlet, The International

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Jew, which he could find, that he never had anything against the Jews as Jews, and that the ending of the entire affair afforded him the greatest satisfaction.” Not everyone was altogether pleased with this outcome. Some felt Marshall let Ford off the hook too easily, while others questioned Ford’s sincerity, stressing that Marshall penned the retraction and apology letter. But Marshall could not have been happier. “My great and outstanding objective,” he wrote, “has been accomplished. . . . Today the Jews stand vindicated and absolved.” Long before his triumph over Ford, Marshall had become a hero to American Jews. He was the protagonist of their rights and liberties; the epitome of what his friends called “a martial Jew.” His ascendancy in communal affairs was recognized in  when he became president of the American Jewish Committee, the first organization to safeguard the civil and religious rights of Jews in America and abroad. From this, his “principal and favorite office,” which he held until his death seventeen years later, hardly an issue of moment in American Jewish life was resolved without his input. Some quipped that American Jewry lived under “Marshall Law.” It was as if, Benjamin Cardozo suggested, he had “been transformed into a great civic institution, coordinating the energies and activities of many men, so that with all his intensely human traits he has acquired in his own life, a new and, as it were, a corporate personality.” On September , , Marshall died suddenly in Zurich while working on the problem of Jewish resettlement in Palestine. Millions mourned his loss, and memorial tributes poured in from around the world. President Herbert Hoover wrote of his deep grief over Marshall’s passing, noting that his “eminent services in law, government, conciliation and philanthropy will remain of enduring value to his country.” The NAACP paid tribute to one “who, believing that justice should know no color line, fought valiantly for the rights of the Negro.” Over four thousand people attended a memorial service for Marshall held in New York City that included delegates from more than seventy-five legal, civic, religious, and philanthropic organizations. Marshall once said that his “great desire” was “to help [Jews] attain their civil, religious and political rights.” He not only realized his life’s

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ambition but in the process pointed the way for other minorities. He proved that no Americans need settle for second-class citizenship. Nor need they hide their light under a bushel. In pursuit of a noble cause, they should speak out forcefully and demand their due. Before Marshall arrived on the scene, many doubted the wisdom of such militancy. But Marshall proved the doubters wrong, and America was never the same. He left behind a nation freer, more tolerant, and more diverse than it had ever been, and he showed future civil rights leaders how to make it even more so.

  Baldwin, Neil. Henry Ford and the Jews: The Mass Production of Hate. New York: Public Affairs, . Oney, Steve. And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank. New York: Pantheon, . Reznikoff, Charles, ed. Louis Marshall, Champion of Liberty: Selected Papers and Addresses. Philadelphia: Jewish Publication Society of America, . Rosenstock, Morton. Louis Marshall, Defender of Jewish Rights. Detroit: Wayne State University Press, . Sachar, Howard M. Dreamland: Europeans and Jews in the Aftermath of the Great War. New York: Knopf, .

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FRANCIS BIDDLE Protecting the Rule of Law during Wartime

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HE RULE OF LAW IS OFTEN a silent witness during wartime, but this was less true during World War II, a conflict that gave impetus to the development of important new legal institutions both domestically and internationally. The United Nations, a new system of international law, the war crime tribunals, and an equalprotection jurisprudence that ended racial apartheid in America are a few of the legal innovations that grew out of the war. There were, of course, serious breaches of the rule of law as well, including the internment of Japanese Americans with little or no due process. Yet the war was an important turning point in protecting civil rights in the United States and human rights around the globe. It symbolized an affirmation that law could limit unrestrained power and protect human freedom, even in the face of the most horrendous acts of man’s inhumanity to man. If the rule of law played a more prominent role in World War II, it was due in part to the work of Francis Beverley Biddle. Biddle served as attorney general for Franklin Roosevelt and as the American judge at the Nuremberg war crimes trials. Born on May , , Biddle was a scion of an old and prestigious Philadelphia family. His father, Algernon



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Sydney Biddle, whose family arrived in this country in , was a professor at the University of Pennsylvania. Biddle’s mother, Frances Robinson, was descended from Edmund Randolph, George Washington’s assistant during the Revolutionary War and the first attorney general of the United States. As a boy Francis attended Groton School in Massachusetts and then went on to Harvard University, graduating in  before receiving his degree from the law school in . After law school he served as private secretary to Justice Oliver Wendell Holmes, an experience that fundamentally shaped his future views. In  he was admitted to the Pennsylvania bar and entered law practice in Philadelphia. Biddle’s private practice consisted mostly of corporate clients, where he specialized in railroad law, although he also served a brief, part-time stint as a special assistant U.S. attorney for the Eastern District of Pennsylvania from  to . In  President Franklin Delano Roosevelt asked him to head the National Labor Relations Board (NLRB). Biddle knew Roosevelt from his days at Groton, where FDR was a senior classmate, “a magnificent but distant deity, whose splendor added to my own shyness.” Biddle’s appointment was the result of an encounter with Lloyd Garrison, outgoing chair of the NLRB, who recommended Biddle as his replacement. Roosevelt’s secretary of labor, Frances Perkins, liked the idea because Biddle’s name and ties to the corporate legal world would reassure industry that the appointee was “knowledgeable about the practical affairs of business.” The NLRB was created to enforce the National Industrial Recovery Act (NIRA), an ill-fated attempt in  to establish a system in which industrial competitors, labor, and government would work together for economic recovery. The benevolent cooperation envisioned under the act never materialized and NIRA agencies were torn with conflict. During this time, Biddle became a leading New Dealer and a strong advocate for labor rights. For example, he championed labor’s position on a controversial section of the NIRA protecting rights to collective bargaining. The critical question was whether, once a majority of workers chose a union, if that union was entitled to represent all workers in the given plant or only those who voted for it?

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Management fought bitterly the majority representation approach, which required them to negotiate with the strongest unions rather than less militant, company-sponsored ones. Biddle convinced the Justice Department to enforce the majority-rule interpretation of the law, but other influential members of the administration, including NIRA general counsel Donald Richberg, sought to reverse its position. The issue came to a head when a lower federal court ruled against the NLRB, calling its view un-American. Hoping to calm criticism, Roosevelt sided with Richberg and reversed the NLRB. Labor threatened antiadministration strikes, and prolabor newspapers encouraged Biddle to resign in protest, but he remained loyal to the president. The NIRA, however, was doomed to failure, and in  it was declared unconstitutional by the U.S. Supreme Court in the famous “sick chicken case,” Schechter Poultry Corporation v. United States. Although the labor board was reestablished under the National Labor Relations Act of , Biddle decided to return to private practice. In  Biddle returned to Washington, D.C., to serve as a deputy chairman of the Federal Reserve System and as chief counsel for the joint congressional committee investigating the Tennessee Valley Authority. Having gained the attention of Attorney General Frank Murphy, he was recommended for a seat on the U.S. Court of Appeals for the Third Circuit. Biddle was reluctant, protesting in a telephone conversation with the president, “I don’t want to be a judge, Mr. President. It’s like retiring. It’s like becoming a priest, taking the veil.” Roosevelt apparently convinced him by promising that his appointment would be temporary. Although Biddle enjoyed his colleagues on the Third Circuit, he was unhappy as a judge. He later wrote that being a judge “bored” him, adding that “lawyers, not judges, make the law.” He did not have to wait long before returning to the bar. On November , , Justice Pierce Butler, one of the conservative “four horsemen” on the U.S. Supreme Court who had consistently voted to strike down New Deal legislation, died. Roosevelt made good on his promise to Biddle—he appointed Murphy to the Supreme Court, elevated then solicitor general Robert Jackson to be attorney general, and on January , , nominated Biddle to become the twenty-fifth solicitor general of the United States.

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In contrast to the sterile life on the bench, Biddle found the solicitor general’s office exciting, given its elite status and responsibility for handling the federal government’s appellate litigation. Indeed, the close relationship with the Supreme Court has led the solicitor general to be dubbed the tenth justice. In a classic statement of the office’s role, Biddle described why he found the position so satisfying: His job is to represent the United States—his only client— in arguments before the Supreme Court of the United States. . . . He is responsible neither to the man who appointed him nor to his immediate superior in the hierarchy of administration. The total responsibility is his, and his guide is only the ethic of his own profession framed in the ambience of his experience and judgment. And he represents the most powerful client in the world. Nor are there any of the drawbacks that usually go with public work, no political compromises, no shifts and substitutes, no cunning deviations, no consideration of expediency. The Solicitor General has no master to serve except his country. By the time he became solicitor general, the tide on the High Court had already turned decisively in favor of the New Deal. Roosevelt had named five justices to the Court, and most key cases testing the constitutionality of New Deal legislation had been argued by Biddle’s predecessors, Stanley Reed and Robert Jackson. Nevertheless, many legal issues remained unresolved and Biddle’s guidance was invaluable to the Court. The case he most enjoyed arguing was United States v. Darby Lumber Co., a  decision overturning the Court’s infamous  decision in Hammer v. Dagenhart. The latter case invalidated a federal law prohibiting interstate shipment of items manufactured with child labor. In Hammer, Oliver Wendell Holmes dissented from the majority, remarking caustically, “I should have thought that, if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States . . . It is not for this Court . . . to say that [prohibition] is

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permissible as against strong drink, but not as against the product of ruined lives.” Darby involved a similar statute regulating the interstate sale of materials produced by employees making less than the federal minimum wage. In arguing the case, Biddle relied heavily on Holmes’s dissent in Hammer. Chief Justice Harlan Fiske Stone, writing for a unanimous Court, upheld the federal law and followed the solicitor general’s lead, paying homage to that “powerful and now classic dissent.” Biddle took immense pride in making the views of his old mentor the law of the land. As solicitor general, Biddle was a major force behind expanded federal protection of racial equality. In coordination with the newly established Civil Rights Section of the Justice Department, he sought test cases to revitalize federal protections under the Fourteenth Amendment and various post–Civil War federal statutes, dormant laws aimed at ensuring racial equality that had been narrowly construed by a hostile Court in the late nineteenth century. Biddle was “determined to breathe new life in them, to see if we could not persuade the Court, now more sensitive to the values which they were adopted to achieve, to give them more humane interpretation.” In the  case of Mitchell v. United States, he took the extraordinary step of attacking the legal position of one of his own client agencies, the Interstate Commerce Commission. The ICC had ruled against a complaint by Arthur Mitchell, an African American member of the House of Representatives forced from a Pullman car into a secondclass “Negro coach” when his train crossed into Arkansas. Biddle permitted the ICC to represent itself and asked the Court for special leave to challenge the commission’s position. The Court agreed with Biddle’s contention that the discrimination in this case was “palpably unjust” and a violation of a “fundamental right” protected under the Fourteenth Amendment. Although states could require segregated cars, a passenger with a first-class ticket had to be furnished with equal accommodations. Within a decade the case became the “controlling precedent” for the Court’s decision in Henderson v. United States, which in  outlawed segregation in interstate travel. Under the Civil Rights Act of , it was a criminal act for state officials to deprive a person of his or her rights. Beginning in  the

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Justice Department brought prosecutions against local police officials on behalf of African Americans and others subjected to police brutality or left unprotected from mob violence. Biddle sought to use the law for a more far-reaching political reform as well. Although African Americans had a right to vote in general elections, states did not have to guarantee open participation in primaries. In the South this made the right to vote meaningless, since elections were effectively decided in Democratic Party primaries. In  Biddle brought the case of United States v. Classic, arguing that primaries were an integral part of elections and that the actions of local election officials fell under the purview of the  law. Defendants in the case argued that the federal law did not apply to primaries because they were not in general use in . The Court sided with the government, sustaining the constitutionality of the act’s criminal sanctions as applied to local election officials. In January  Justice James McReynolds, the last of the old four horsemen, resigned. Six months later Chief Justice Hughes also retired, giving Roosevelt two seats on the Court to fill. Roosevelt elevated Justice Stone to be chief justice and named Robert Jackson to one of the open seats. Jackson had become close friends with Biddle during their time at the Justice Department and he recommended Biddle to succeed him as attorney general. Roosevelt, however, was concerned that Biddle might be “too soft” and too protective of civil liberties to become the nation’s chief law enforcement official when the nation was preparing for war. Roosevelt had a long conversation with Jackson on the subject, knowing that Jackson would report back to his friend. Having thus sent a signal to Biddle, three months later he nominated him to become the nation’s fifty-eighth attorney general. Roosevelt had good reason to believe Biddle would be reluctant to sacrifice individual rights, and it says much about him as a wartime leader that he appointed Biddle anyway. As solicitor general, Biddle had demonstrated his evenhandedness when Jackson put him in charge of the government’s alien registration program, a law passed after the fall of France to German forces in June . Fear of a fifth column of alien spies and collaborators in the United States swept the nation, and Congress passed the Alien Registration Act, requiring a half million aliens to be registered and fingerprinted. Having witnessed how Hitler regis-

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tered Jews as a preliminary step toward sending them to concentration camps, America’s aliens understandably were shaken. In implementing the new program, Biddle and Jackson were determined to reassure aliens. They also wanted to avoid the paranoia and hysteria that had marked American entry into World War I. They wanted to show that America was now different, more confident in its own values, and more determined to protect individual rights and the rule of law. Biddle saw the challenge of implementing the program as “a test of American democracy, an opportunity to show that we believed what we said. . . . We must show a frightened world that we could share our country with the exiled and the oppressed.” The task was made more difficult as an isolationist press, led by the Hearst newspaper chain, fanned flames of suspicion. In Congress, nativists fought immigration (especially of Jews), precisely when refugees were fleeing war-torn Europe. The Dies Committee on Un-American Activities had begun its witch hunts to ferret out fascists, communists, and others who held “foreign ideas.” Biddle set out to counteract the hysteria by educating aliens and citizens about America’s great immigrant heritage. To ease apprehensions, he arranged registrations to be done at post offices instead of by the FBI. Registrars were instructed to be patient and courteous, and advance publicity in many languages and interpreters for non-English-speaking aliens were arranged. Biddle persuaded the president to designate I Am an American Day to celebrate the virtues of American immigration. He also gave speeches emphasizing what foreigners had given to the United States and the importance of treating loyal noncitizens the same as citizens. A few months after Biddle became attorney general, the Japanese bombed Pearl Harbor, and the country was at war. During the next four years, Biddle’s faith that a nation could keep its commitment to freedom during its most perilous times was tested but never abandoned. Just a few days before Pearl Harbor, Biddle gave a speech at the Library of Congress, warning that “we had fought wars before, and our personal freedoms have survived, there had been periods of gross abuse, when hysteria and fear and hate ran high, minorities were unlawfully and cruelly abused.” At such times every man “who cares about freedom must fight for it for the other man with whom he disagrees.” Biddle also

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found himself fighting others in the administration, especially those in the military and the War Department. The military, he later wrote, “found it easier to clamp down on everything than to exercise the difficult practice of judgment,” and he soon found himself recalling the words of a friend who warned him when the war began that “to a great extent your part in the war effort would be fighting the army.” Once war began, Biddle was determined to avoid internments and the persecution of aliens. He spoke out strongly against companies who discharged foreign workers. With the declaration of war, Germans, Japanese, and Italians instantly became “enemy aliens,” a term Biddle tried not to use. As attorney general, he issued regulations that restricted their travel and barred them from areas around military instillations, but he resisted pressure for mass internments. In Great Britain the government had succumbed to popular pressure and put more than seventy-four thousand Germans and Austrians (many of them Jews fleeing persecution on the continent) into hastily built camps. Biddle persuaded a skeptical president to rely instead on a selective alien control program. Building on the alien registration program implemented before the war, Biddle established alien parole boards across the country. Individual aliens were interned only after both a showing by the U.S. attorney that they posed a risk and a fair hearing before a parole board in which the alien could present evidence. Under this selective process, of the more than one million enemy aliens in the United States, only sixteen thousand were arrested, and only about one-third of those were interned. Biddle also implemented an outreach program expediting the naturalization of aliens loyal to the United States, and in October  he persuaded the president to remove Italians from the category of enemy alien altogether. FDR saw it as “good politics” that would play well in the foreign press, while Biddle saw it as a matter of fairness. The Italians in America posed little threat. Of the six hundred thousand living in the United States, only  had been deemed dangerous enough to intern, and thousands had sons fighting in the American army. During the war years, Biddle continued to champion racial equality. In a  speech on democracy and racial minorities, he argued that acts of discrimination only served enemy propaganda. Yet, he continued, “I am less concerned about how the United States looks to her enemies.

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What I care about is what she looks like to her friends; to those who love and believe in her; to Americans in the field who fight and die for her.” How can any American “believe that the cause is a common one,” he asked, “if he sees discrimination against him as a member of a race or of a religion; discrimination in the Army in which he must fight, in industry, in the civil offices of the Government?” Biddle’s efforts to protect civil rights and liberties during the war were not always successful. The most glaring breach of rights by the government was the decision in May  to “evacuate” one hundred twenty thousand persons of Japanese ancestry, citizens and aliens alike, from the West Coast and hold them in relocation camps for the duration of the war. The plan, pushed by the War Department, was accomplished by classifying the entire West Coast as a “military zone” and then excluding all persons of Japanese ancestry. Biddle opposed the plan from the beginning and argued strenuously against it in meetings with FDR, Secretary of War Henry Stimson, and General John DeWitt, the commanding officer of the Pacific Coast. With respect to Japanese aliens Biddle felt it was legal but entirely unnecessary, but with respect to Japanese Americans it was flatly unconstitutional; “their rights,” he said, “were the same as those of the men responsible for the program.” Biddle bluntly reiterated his position to the president: “the Justice Department opposed the plan and would have nothing to do with the evacuation.” Despite his strong opposition, Roosevelt authorized the relocation. When it was later challenged in the  case of Korematsu v. United States, a divided Supreme Court, with Murphy and Jackson dissenting, upheld the president’s order. The Court admitted that the program was “inconsistent with our basic governmental institutions.” But, it said, “hardships are part of war. . . . Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.” Biddle remained unconvinced. In his memoirs, he partially excused military leaders; after all, he wrote, “they had been caught with their pants down at Pearl Harbor” and were not taking more chances. But while such “considerations might explain the decision they did not justify it.” The FBI and the military’s own investigators found no evidence of sabotage or significant espionage activity on the West Coast.

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Military leaders, he concluded, simply had given in to “anti-Japanese prejudice . . . and the clamor of [local] politicians rather than to a genuine belief in military necessity.” Biddle was more disappointed in the president: “I do not think he was much concerned with the gravity or implications of this step. . . . Nor do I think the constitutional difficulty plagued him—the Constitution has never greatly bothered any wartime president.” Despite his disappointment over the evacuation decision, Biddle admired FDR’s wartime leadership, noting that the president “never tried to interfere with any decision I made, even if he thought it might have serious political repercussions, or might affect the war unfavorably.” But on at least two other occasions Biddle’s fidelity to the law produced friction with the White House. The first involved the treatment of isolationists and pro-Nazi rabble-rousers such as the Reverend Gerald Winrod and Father Charles Coughlin, who spewed anti-Semitic and profascist propaganda. Biddle believed that the “extravagant abuse of prosecutions for sedition” had been the most serious example of hysteria during the First World War, and he was determined to avoid them except in the most extreme cases. He directed U.S. attorneys not to initiate prosecutions for sedition without his personal authorization, and he announced that “public speech would be curtailed only when public safety was directly imperiled” (emphasis added). His reluctance to go after alleged seditionists and antiwar dissidents angered Roosevelt, who grew tired of attacks on his wartime policies. The president, said Biddle, “considered me out of step, and he began to go for me in the Cabinet. . . . When my turn came, as he went around the table, his habitual affability dropped. . . . He looked at me, his face pulled tightly together. ‘When are you going to indict the seditionists?’” Biddle remained steadfast, patiently explaining the importance of free debate in democracy— even during war. He eventually brought a few sedition prosecutions, but only when there was a clear showing that the speech directly impacted the war effort. Roosevelt’s impatience with “legal niceties” also clashed with his attorney general’s commitment to the rule of law during the prosecution of eight German saboteurs transported to U.S. shores by two U-boats in June . One team of saboteurs landed on Long Island; a second

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team landed south of Jacksonville, Florida. Each team had explosives and planned to attack railroads, bridges, and industrial centers. The men were quickly captured but the problem was what to do with them. The president wanted them tried before a military tribunal and executed. Because they were not apprehended on the battlefield and were not in uniform, however, they could seek a writ of habeas corpus transferring them from military custody into civilian courts. As far back as the Civil War, in Ex parte Milligan (), the Supreme Court had declared that military commissions could not try civilians if the civil courts were functioning. But the president was adamant: “I want one thing clearly understood, Francis,” he said, “I won’t give them up. . . . I won’t hand them over to any United States Marshal armed with a writ of habeas corpus. Understand?” Biddle thought Milligan could be distinguished, as the eight Germans were members of the enemy’s armed forces who, having penetrated battle lines, were waging war within our country. Moreover, unlike the Civil War, during which Congress had restricted the use of military tribunals, it had specifically authorized their use during World War II. Biddle, however, wanted the Germans’ trial to be fair and expeditious, and so he tried the case before the tribunal himself. After evidence for both sides was in, the defense filed a petition for habeas corpus, which was immediately denied by the district court. On Biddle’s request, the Supreme Court called itself into special session, soon affirming the district court’s denial of the habeas petition. Arguments before the military commission concluded on August , and all eight were sentenced to death. On Biddle’s recommendation, two who had cooperated had their sentences commuted by the president. The remaining six were executed on August . Biddle later wrote, “Exactly six weeks elapsed between the last arrest and the ultimate carrying out of the sentences. The defendants had been given every right afforded by our law, and were represented with unusual ability and perseverance by lawyers assigned to them by the country to which they had come in order to wreck war plants. It was an extraordinary example of justice at its best—prompt, yet fair—in striking contrast to what was going on in Germany.” As the war wound to its conclusion, Biddle approached Roosevelt about the advisability of trials for German and Japanese leaders accused

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of war crimes. In his mind, trials with due process protections would be indispensable in distinguishing the causes for which the war had been waged. The president agreed and took a preliminary plan with him to the Yalta Conference in February . Two months later, Roosevelt passed away and Harry Truman assumed the presidency. In the reorganization of the cabinet, Biddle resigned in May. Only a few months later Truman called on him to serve as the American judge for the International Military Tribunal in Nuremberg. Robert Jackson, on leave from the Supreme Court, was to serve as chief American prosecutor. The Nuremberg trials marked a major step in the law of war. Never before had a judicial process been used to structure justice at the end of such an armed conflict. The trial began in November  and concluded on October , , when eleven defendants were condemned to death, one to life in prison, and three were acquitted for what Jackson called “crimes so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” The fact that four great nations, Jackson continued, “flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.” Of the four presiding judges (one for each Allied power), Biddle gained a reputation as the most attentive and the most challenging cross-examiner. More suited to the role of advocate, he was at times impatient and even caustic from the bench, but he insisted on fairness throughout the trial. His evenhandedness toward the defense even led to a brief falling-out with his old fried Jackson, who thought Biddle had gone out of his way to rule against him. On two particular occasions Biddle clashed with Jackson, siding with the defense. The first involved a request to issue interrogatories to Admiral Chester Nimitz, commander of the American navy in the Pacific. Leaders of the German navy had been charged with authorizing unrestricted U-boat activity in violation of the Treaty of London. The defense wished to show that Nimitz had followed a similar policy and interpreted the London treaty the same way in the Pacific. Jackson objected that what happened in the Pacific had no relation to German warfare in the Atlantic, but Biddle disagreed. Interrogatories were issued and Nimitz’s answers confirmed

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the defense’s claim. Biddle later wrote: “Had we refused to permit Admiral Nimitz’s interrogatories because they might reveal that the United States had acted illegally, we would have been behaving like politicians and not like judges.” Biddle also clashed with the prosecution over its theory of conspiracy. The prosecution wanted the tribunal to declare criminal certain organizations, such as the Gestapo, the SS, or the Nazi Party. Under the charter establishing the tribunal, once such a declaration was made, any Allied power might later try other individuals for membership in these groups, and the criminal nature of the organizations could not be contested. Biddle thought this to be “a startling application of the doctrine of guilt by association on an international level.” He suggested a compromise that the tribunal eventually adopted: persons could be tried for conspiracy only when they became or remained members of an organization with personal knowledge that it was engaged in criminal acts. This took the teeth out of the tribunal’s formal finding that an organization was criminal and “in substance restored the necessity of proving individual guilt.” Nuremberg was a dramatic development in international law. The tribunal had established the principle of individual responsibility for violations of laws of war and had held heads of state accountable for their actions. Upon Biddle’s return, Truman nominated him to become the U.S. representative to the United Nations Economic and Social Counsel. His nomination, however, was withdrawn in the face of Republican opposition that considered Biddle too liberal and “a veritable symbol of the New Deal.” Biddle continued his advocacy for civil rights and liberties as chair of Americans for Democratic Action (–), a member of the Permanent Court of Arbitration in the Hague (–), and chair of the American Civil Liberties Union (–). He also spent much time after the war writing, and produced, among other works, a two-volume autobiography, A Casual Past () and In Brief Authority (); a biography of Oliver Wendell Holmes Jr., Mr. Justice Holmes (); and two volumes on democracy and freedom, The World’s Best Hope () and The Fear of Freedom (). In this last book, Biddle chronicled episodes of repression in the United States and eloquently defended individual freedom against the

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McCarthyism of the Cold War. “The future of our liberty,” he wrote, “rests today with the people, as indeed it always has. If we remain timorous and uncertain under this queer obsession; if we are afraid to trust the strength and certainty of our own fundamental ideas of freedom; if our form of humanism becomes no longer a living faith but a doctrine of convenience, now outmoded, then our future will not be as free as our past has been.” Francis Biddle died on October , . His advocacy for the rights of the disadvantaged during the New Deal; his determination to protect liberty as attorney general during the war; his commitment to fairness, even for those who do not deserve it, during the Nuremberg trials; and his lifelong commitment to the cause of freedom mark a life of noble purposes.

  Biddle, Francis. A Casual Past. Garden City, NY: Doubleday, . ———. The Fear of Freedom. Garden City, NY: Doubleday, . ———. In Brief Authority. Garden City, NY: Doubleday, . ———. The World’s Best Hope: A Discussion of the Role of the United States in the Modern World. Chicago: University of Chicago Press, . Taylor, Telford. The Anatomy of the Nuremberg Trials: A Personal Memoir. New York: Knopf, .

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CONTRIBUTORS Barbara Allen Babcock graduated from Yale Law School in  and practiced criminal defense law for eight years in the District of Columbia, where she was first director of the Public Defender Service. In  she was the first woman appointed to the faculty at Stanford Law School and is now the Judge John Crown Professor of Law, Emerita. She has written and taught in civil and criminal procedure, sex discrimination, and women’s legal history. She served as assistant attorney general for the Civil Division in the Carter administration’s Department of Justice. Cornell W. Clayton is professor of political science and Edward R. Meyer Fellow at Washington State University. He is author and editor of numerous articles and books on law and judicial politics, including The Politics of Justice: The Attorney General and the Making of Legal Policy () and Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics (). Mark Curriden is a lawyer and journalist in Dallas, Texas. His book with Leroy Phillips, Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism (), won a  ABA Silver Gavel Award and in  was named by the Wall Street Journal as one of the five best criminal justice books of all time. Curriden regularly speaks around the country on Parden and the Johnson case. Paul Finkelman is President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow in the Government Law Center at Albany Law School. He is the author of more than twenty books and one hundred scholarly articles on legal and constitutional history, slavery and race, separation of church and state, and baseball and the law.

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Phillip B. Gonzales is professor and chair of sociology at the University of New Mexico. He is the author of Forced Sacrifice: The Hispano Cause in New Mexico and the Racial Attitude Confrontation of  (). He maintains an interest in Nuevomexicano politics and identity and is completing a book on the native son campaign for Hispano political equality. John D. Gordan III, a graduate of Harvard College and Harvard Law School, is a partner in the New York office of Morgan, Lewis and Bockius LLP. He has written a number of articles on American legal history. Henry M. Greenberg is a shareholder in the Albany, New York, office of Greenberg Traurig, LLP. He is a trustee of the Historical Society of the Courts of the State of New York and editor in chief of its newsletter. Kermit L. Hall was president and professor of history, University at Albany, State University of New York. His many publications include the award-winning Oxford Companion to the Supreme Court of the United States (rev. ed., ), a main selection of History Book Club, and The Magic Mirror: Law in American History (). John R. Vile, BA, College of William and Mary, and PhD, University of Virginia, is professor and chair of the Department of Political Science at Middle Tennessee State University. Among his many works, he is editor of Great American Judges: An Encyclopedia () and Great American Lawyers: An Encyclopedia () and author of The Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, – () and The Constitutional Convention of : A Comprehensive Encyclopedia of America’s Founding ().

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ILLUSTRATION CREDITS Engraving of Samuel Sewall by O. Pelton after the portrait by N. Emmons is reproduced from the collections of the Library of Congress, Prints and Photographs Division, LC-USZ-. Portrait of James Alexander is reproduced with the permission of the Historical Society of the Courts of the State of New York from its collection on its Web site at www.courts.state.ny.us/history. Further reproduction may not be made without express permission. Portrait of Lemuel Shaw is reproduced courtesy of Special Collections Department, Harvard Law School Library. Engraving of Hugh Lennox Bond by S. Kirchner for the Baltimore American is reproduced from the collections of the Library of Congress, Prints and Photographs Division, LC-USZ-. Portrait of Clara Shortridge Foltz by Truman Toland is reproduced with the permission of Barbara A. Babcock. Photograph of Noah Parden is reproduced courtesy of the Chattanooga–Hamilton County Bicentennial Library. Photograph of Octaviano Larrazolo is reproduced from the collections of the Library of Congress, Prints and Photographs Division, LCUSZ-. Photograph of Louis Marshall is reprinted from Louis Marshall: Champion of Liberty (vol. ), ©  by Oscar Handlin and edited by Charles Reznikoff, published by the Jewish Publication Society, with the permission of the publisher.

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I Illustration Credits

Photograph of Francis Biddle by Harris and Ewing is reproduced from the collections of the Library of Congress, Prints and Photographs Division, LC-USZ-.