This series about the life of Edward B. Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894 and another about his 22 years as a Chicago attorney, 1895-1917.[1]
The Federal Government Attorney
In 1917, at age 47, Burling finally did manage to leave Chicago to go to Washington, D.C. Though the urging of a law school friend, he became a lawyer for the U.S. Food Administration, which was an agency for the purchase and sale of foodstuffs and stabilizing the U.S. market price of wheat and which was directed by Herbert Hoover, another native Iowan from the small town of West Branch and, of course, a future U.S. President.
However, the two men did not get along with one another, and Ned immediately left this position to be a lawyer (and then General Counsel) for the U.S. Shipping Board, which was responsible for organizing U.S. shipyards during World War I, a position he held through the end of the war in 1918.
Burling relished the life of a top government lawyer. As he said at the time to his friend Learned Hand, “It’s like expecting a country girl who has spent her entire life milking cows to go back contentedly after she has been to the city–seen the bright lights and been screwed. That’s the way I feel–my first big screw. And I want more of it.”
At the Shipping Board Burling crossed paths with another future Grinnell College luminary, Joseph Welch, then one of its young lawyers. Welch later observed that in 1918 he was 28 while Burling was 48 and whenever he wrote a letter for Burling’s signature, Ned’s “first act was to seize a pen and sign it. Then you would read it and often suggest a change. But that beautiful gesture of confidence gave me so much happiness,” and Welch thereafter emulated that practice.[1]
Later Connections Between Burling and Joseph Welch
Parenthetically, 36 years later, in 1954, their paths again crossed, albeit indirectly. One of Welch’s clients in the Army-McCarthy hearings at that time, John G. Adams, thought that Welch was not doing a good job in defending him before the committee. As a result, Adams met with Burling to see if Covington & Burling could represent Adams. Burling’s response: Adams probably would not want the firm to represent him because one of its partners (Donald Hiss) was the brother of Alger Hiss, who had been convicted in 1950 for having provided classified documents to an admitted Communist, Whittaker Chambers. Having Burling’s law firm represent Adams, it was suggested, would leave the firm and Adams open to an attack by McCarthy. As a result, the law firm did not enter the McCarthy arena.
Indeed, the law firm’s connections with Donald and Alger Hiss were deep. In July 1949 Alger Hiss’ federal-court trial for perjury for testimony before the House Un-American Activities Committee ended in a hung jury, splitting 8 to 4 for conviction. Burling and his law partners were upset by the lack of an acquittal, and Burling thought Hiss’ well known attorney had made serious errors in defending the case.[2]
Conclusion
The next installment in this series about Burling will be a summary of his distinguished career as a Washington, D.C. attorney in private practice, 1919-1966.
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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).
Andrew Carnegie (November 25, 1835 – August 11, 1919) was a Scottish-American industrialist who led the enormous expansion of the American steel industry in the late 19th century.[1] He also was one of the highest profile philanthropist of his era who had given away almost 90 percent of his large fortune to charities and foundations by the time of his death.[2]
Carnegie also was a pacifist at heart, and starting in 1903 devoted significant time and money to promoting peaceful resolution of international disputes, especially by arbitration pursuant to treaties.
Hague Peace Palace
He helped to create the Palace of Peace at the Hague in the Netherlands with his 1903 formation of a Dutch foundation and his funding of the Palace’s construction that was completed in 1913. It initially was the site for the Permanent Court of Arbitration, which was established in 1899 and which now is an intergovernmental organization with 115 member states that provides dispute-resolution services for various combinations of states, state entities, intergovernmental organizations, and private parties.[3] From 1922 to 1946 it also was the site for the Permanent Court of International Justice of the League of Nations and since 1946 the International Court of Justice, the principal judicial organ of the United Nations.
In 1910 he funded the establishment of the Carnegie Endowment for International Peace, whose trustees were charged to use the fund to “hasten the abolition of international war, the foulest blot upon our civilization.” The Endowment is still operating today with its headquarters in Washington, D.C. Now it describes itself as “a unique global network of policy research centers in Russia, China, Europe, the Middle East, and the [U.S.]. Our mission . . . is to advance the cause of peace through analysis and development of fresh policy ideas and direct engagement and collaboration with decision makers in government, business, and civil society. Working together, our centers bring the inestimable benefit of multiple national viewpoints to bilateral, regional, and global issues.”
Carnegie Hall
Another activity Carnegie organized to promote peace was the April 1907 National Arbitration and Peace Congress at Carnegie Hall in New York City. The Hall, as its name suggests, was another Carnegie-financed project that opened in 1891 in Midtown Manhattan.[4]
The Congress with over 1,200 registered delegates was described as the “greatest gathering ever held in advocacy for the abolition of war as a means of settling national disputes.”
Carnegie himself, of course, gave a major speech at the Congress that in retrospect can be seen as an outline of the United Nations created after World War II. Carnegie said, “[W]e are met to urge the speedy removal of the foulest stain that remains to disgrace humanity, since slavery was abolished—the killing of man by man in battle as a mode of settling international disputes.” He also expressed his support for “the League of Peace idea—the formation of an International Police, never for aggression, always for protection to the peace of the civilized world. . . . “ States should agree “that no nation shall be permitted to disturb the peace.” Before use of the international police, there should be a proclamation of “non-intercourse [“sanctions” in our parlance] with the offending nation.”
President Theodore Roosevelt did not attend the Congress, but sent a letter that embraced its purpose. It said, “[I]t is our bounden duty to work for peace, yet it is even more our duty to work for righteousness and justice.” Moreover, the President stated,“[T]here can be at this time a very large increase in the classes of cases which [could ] . . .be arbitrated, and . . .provision can be made for greater facility and certainty of arbitration. I hope to see adopted a general arbitration treaty.” Roosevelt added that the Hague court [of Arbitration] should be greatly increased in power and permanency.”
On the other hand, Roosevelt cautioned the delegates to not insist “upon the impossible [and thereby] put off the day when the possible can be accomplished.” “[G]eneral disarmament would do harm and not good if it left the civilized and peace-loving peoples . . . unable to check the other peoples who have no such standards.” Indeed, according to the President, “[T]here are few more mischievous things than the custom of uttering or applauding sentiments which represent mere oratory, and which are not, and cannot be, and have not been, translated from words into deeds.”
The Congress adopted resolutions endorsing international peace and international law; calling for permanency for the Hague Court of Arbitration open to all nations; the adoption of a general international arbitration treaty; the creation of a committee to investigate international disputes and attempt to mediate them before the parties resort to war; the establishment of the neutrality of personal property at sea; and limitations on armaments. [5]
Baron de Constant de Rebecque & Andrew Carnegie
At the end of the Congress Carnegie was presented with the French Cross of the Legion of Honor by France’s Baron de Constant de Rebecque (nee Paul Henri Benjamin Balluet), a member of the Permanent Court of Arbitration and the 1909 winner of the Nobel Peace Prize. The Baron praised Carnegie for “his interest and energy in behalf of the peace movement” and for being “a good citizen of the whole world.”
According to the New York Times, Europeans were not interested in, or impressed by, this Congress. First, they did not have “a large number of peace propagandists.” Instead their prevailing view was that “universal, permanent peace is a long way off” and that the major issue was the practical one of adopting an agreement on the manner in which wars should be conducted. Second, many Europeans believe that U.S. policies regarding the Western Hemisphere threaten world peace, especially with respect to Germany’s interests in that part of the world. Indeed, The Times of London called Carnegie “an ardent but ill-informed amateur” and had “rushed in where sagacious statesmen fear to tread.” Another European critic said Carnegie should “endow a chair of contemporary history for his own instruction.”
Carnegie Mansion
Preceding the Congress, Carnegie hosted a large dinner at his beautiful mansion at Fifth Avenue and 91st Street in New York City to celebrate industrial peace in the U.S. and the upcoming Congress. In attendance were 100 “sons of toil” or workers’ representatives; prominent merchants; manufacturers’ executives; bankers; leaders of universities and other educational institutions; church leaders; publishers and editors; lawyers; and railroad executives, including William C. Brown, then Senior Vice President of the New York Central Railroad (and my maternal great-great uncle).[6]
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[1] This post is based in substantial part on Chapter XXIII (“The Quest for Peace, 1901-1910”) in Joseph F. Wall’s Andrew Carnegie (Oxford Univ. Press 1970), which won the 1971 Bancroft Prize for best book about history of the Americas (or diplomacy). Professor Wall was a revered History Professor at my alma mater, Grinnell College, and I was fortunate to have known him and learned from him.
[2] One of Carnegie’s philanthropic endeavors was funding the establishment of public libraries throughout the U.S. and other countries. My mother was the Librarian at the Carnegie Library in Perry, Iowa, and I studied at Grinnell College’s Carnegie Library during my first two student years.
[3] I have had two “contacts” with the Permanent Court of Arbitration. First, a Minnesota company had suggested arbitration of its claim against my client, an Asian manufacturer, under the UNCITRAL Arbitration Rules. Because my client and I did not believe that there was a valid arbitration clause and the claimant had not appointed the first arbitrator, we did not appoint a second arbitrator and then were surprised to receive a letter from the Permanent Court designating an appointing authority to appoint a second arbitrator. There eventually was a three-person arbitration panel that issued an award in favor of my client. Second, I have researched the life and career of Edward Burnham Burling, a fellow Grinnell alumnus (Class of 1890), whose gift funded the College’s library (the Burling Library) that replaced its Carnegie Library. Burling was the co-founder of the eminent Washington, D.C. law firm of Covington & Burling and represented the Kingdom of Norway against the U.S. over expropriation of shipping contracts during World War I with the Permanent Court of Arbitration in 1922 issuing an award in favor of Norway. Writing blog posts about Burling and the Norway case are on my list of future posts.
[4] This account of the Congress is based upon Andrew Carnegie’s Plea for Peace, N. Y. Times (April 7, 1907); Stead Recommends a Peace Pilgrimage, N. Y. Times (April 8, 1907); Frenchmen Arrive for Peace Congress, N. Y. Times (April 9, 1907); Prelude to Peace Congress To-Night, N. Y. Times (April 14, 1907); Women’s Part in Peace, N. Y. Times (April 14, 1907); War Talk Opens Peace Congress, N. Y. Times (April 15, 1907); The Afternoon Session, N. Y. times (April 16, 1907); Editorial, Peace on Earth, N. Y. Times (April 16, 1907); Peace Conference Not All Harmony, N. Y. Times (April 17, 1907); Honor Carnegie Friend of Peace, N. Y. Times (April 17, 1907); Editorial, Peace Congress Resolutions, N. Y. Times (April 18, 1907); Editorial, Peace Congress Sequels, N. Y. Times (April 21, 1907); Europe Is Amused at Peace Congress, N. Y. Times (April 21, 1907); Proceedings of the National Arbitration and Peace Congress, New York, April 14th to 17th, 1907 (1907).
[5] Roosevelt became a hero for Carnegie, but Roosevelt never liked Carnegie.
[6]Unique Party Carnegie Host, N. Y. Times (April 6, 1907). About one week before this special dinner, Carnegie, after a luncheon meeting with President Roosevelt at the White House, made a statement supporting the President’s policies regarding the railroads. The Carnegie Mansion now is the home for the Cooper Hewitt, Smithsonian Design Museum.
The dysfunctionality of the U.S. government has been common theme of this blog.
Another reason for this unfortunate phenomenon is posited by Philip Howard in an op-ed article in the Washington Post and presumably in his book, The Rule of Nobody: Saving America from Dead Laws and Broken Government.
Howard believes the “main culprit” for dysfunctionality is law. “Generations of lawmakers and regulators have written so much law, in such detail, that officials are barred from acting sensibly. Like sediment in the harbor, law has piled up until it is almost impossible — indeed, illegal — for officials to make choices needed for government to get where it needs to go.”
Examples are cited. The President “lacks the power to approve the rebuilding of decrepit bridges and roads.” Legally required reviews for highway projects now take up to eight years. New statutes these days are complex and lengthy.
“Human responsibility,” Howard argues, “should be restored as the operating philosophy for democracy. Only real people, not bureaucratic rules, can make adjustments to balance a budget, or be fair, or change priorities. Democracy cannot function unless identifiable people can make public choices and be accountable for the results.”
“Our government is failing not because of bad policies but because of flawed institutional design. No one is allowed to take responsibility.”
Howard is a frequent commentator on national issues and the author of several books. In 2002, he formed Common Good, a nonpartisan national coalition dedicated to restoring common sense to America. Howard is a Partner in the New York City office of the law firm of Covington & Burling, LLP, where he represents corporations and executives in a wide range of issues, including governance, regulatory disputes, securities litigation, and business transactions. He is a graduate of Yale College and the University of Virginia Law School.
Attorney Joseph Welch’s legal representation of the Army in the Army-McCarthy hearings was a very difficult assignment. It was not a trial in a court with established procedural and evidentiary rules to resolve a dispute under known substantive legal principles before an independent judge or jury. That is where Welch had many years of experience. Instead it was a congressional hearing without such rules or substantive law and without an independent trier of fact under the lights of television cameras before a jury of millions of fellow citizens. That is something for which Welch had no experience. Nor did any other lawyer at the time. As a result, it is difficult to evaluate Welch’s performance as a lawyer in the hearings.
As we have seen in a prior post, Welch ultimately was successful in showing the nation the bad side of McCarthy’s personality and tactics and in helping to undermine the Senator’s influence and power. Welch’s folksy,understated manner played an important part in this TV drama. In that most important test of performance, Welch was successful. [1]
During the first weeks of the hearings, however, Life Magazine said, “many television viewers felt sorry for [Welch]—and even sorrier for anyone who was relying on his advice and assistance. He simply sat there, looking terribly tired and half asleep, and when he did speak up it was in a mild and apologetic tone of voice that seemed pathetically inadequate.”
John G. Adams
Moreover, one of Welch’s clients, John G. Adams, who as an Army attorney had been personally attacked by McCarthy, thought that Welch was not doing a good job in defending him before the committee. Adams was being excluded from the daily meetings to prepare for the hearings, and Welch allegedly was making deals with committee counsel without Adams’ approval. In addition, Adams thought Welch was too much of a gentleman to conduct a rigorous cross-examination of McCarthy’s female secretary.
As a result, during the hearings Adams met with attorney Edward B. Burling of the eminent Covington & Burling law firm to see if it could represent Adams. Burling had Adams meet with one of the firm’s other partners, who said that Adams probably not want the firm to represent him because it was subject to potential smearing by McCarthy. One of its partners (Donald Hiss) was the brother of Alger Hiss, who had been convicted in 1950 for providing classified government documents to an admitted Communist, Whitaker Chambers.
After the hearings were over, Welch thought that he had made many mistakes and that the Army had not proved its case in the hearings. He privately said to fellow attorney Bruce Bromley, who had recommended him for this assignment, “Don’t think for a moment that I didn’t make bad mistakes because I did. Don’t think for a moment that I didn’t have gigantic anxieties that you were not aware of.”[1] Edward Bennett Williams, the noted trial attorney and legal counsel for McCarthy, opined that the Army did not put forth a convincing case on the evidence.
In addition, in an October 1954 speech, Welch publicly admitted, “There were many times when I sat stunned and speechless, and [the public] said, ‘What patience the man has.’ When I sat in an agony of indecision, [the public] said, ‘How wise he is. . . .’ Sometimes I was so weary my mind was almost blank, and then some of [the public] would say, ‘How witty he is!’”
Welch also said after the hearings that he had been hampered by the setting: the palpable fear and hate in the room, the crowded hearing room, the TV cameras, being forced to be seated and being far from the witness. For one watching the videotape of the hearings today, it is difficult to appreciate the fear and the hate that were present in the country and in the hearing room.
It is also difficult today to grasp the importance of the hearings because the issues that were being debated seem trivial: whether McCarthy tried to pressure the Army to give special favors to David Schine; whether a photograph of Shine and the Secretary of the Army had been cropped and by whom; and whether a purported letter from the FBI was authentic. Welch’s notes of levity in the hearings makes one wonder whether this was his way of signaling to the public that these issues were not really that important.
At one of the hearings, Welch was questioning a McCarthy investigator on how a photograph of Schine had been cropped to show only Schine and Army Secretary Stevens. Welch asked the investigator, “Do you think this came from a pixie?” McCarthy interrupted to ask Welch what a “pixie” was. Welch retorted: a “pixie is a close relative of a fairy.”
Al Pacino as Roy Cohn
At the time this was seen as an example of Welch’s clever wit. But it really was a double-entendre warning that McCarthy did not catch. Welch really was hinting that Cohn was a homosexual who was having an affair with Schine or maybe even with Senator McCarthy himself. (In the more recent Mike Nichols’ production of Tony Kushner’s Angels in America, Al Pacino plays Roy Cohn as a closeted homosexual dying of AIDS.)
Welch closed the hearings with these remarks: “I, alone, came into this room from deep obscurity. I, alone, will retire to obscurity. As it folds about me softly, as I hope it does quickly, the lady who listened and is called Judith Lyndon Welch [his wife] will hear from me a long sigh of relief. . . . I can say, as I have already indicated, that I could do with a little serenity. I will allow myself to hope that soon there will come a day when there will, in this lovely land of ours, be more simple laughter.”
Thereafter Welch wrote the Subcommittee’s lawyer, Roy Jenkins, “I think I cherish most the few words at the end of the hearing when you and I agreed that we had never had any really difficult moment. We did not always agree completely, but we seldom seriously disagreed and we never fought. To achieve that result in a room full of tensions required graciousness and good will; and while I would like to think my contribution approached half, I would be quick to say yours exceeded half.” (In response, Jenkins said, “I am going to write the lexicographers . . . so that the word ‘Welchian’ be incorporated as another synonym for the word ‘graciousness.’”)
Welch also wrote after the close of the hearings to Senator Karl Mundt of South Dakota, who chaired the subcommittee. Welch said Mundt “had an incredibly difficult assignment and there was no hope that you would please everyone. I do not claim I was always happy with what you did, but I do claim I was happy with every personal contact and proud to have the feeling that you and I are really good friends. I could not bear to have it any other way.”
During and immediately after the hearings Welch was always circumspect in what he said about McCarthy.
In 1959, however, Welch said that McCarthy was “the most completely fraudulent man I ever knew…. But for the life of me I never could figure out what he was up to. He seemed to me just a planless adventurer who seemed to me to get some sort of an adolescent joy out of thrashing around, making a loud noise, wounding people, and embarrassing the hell out of highly placed individuals. He seemed to me to take a sort of maniacal delight in selecting some highly honorable and dignified person in some high position, and at the lowest just scaring the hell out of him, and at the highest or at the worst destroying him.”
And in a 1957 speech Welch spoke out about the fear engendered by McCarthy and the appropriate remedy for same. “Eccentric conduct,” Welch said, “which ought only to produce a tolerant smile has instead provoked fear. Thoughts and words not in conformity with those of the great majority of our people have often brought a dissenter into hatred, ridicule, and contempt, or worse dangers.” Welch continued, “Fear is a painful and contagious disease. It is also a cumulative disease. A society beset by fear develops no immunity to fear. Instead it becomes more and more vulnerable, and fresh waves of fear sweep over the enfeebled patient, whose resistance to disease diminishes with each new attack.” Welch finished, “The cure for the malady of fear is found only in the sweet medicine of reason. And reason at its finest social form is law.”
[1] Subsequent posts will review President Eisenhower’s participation in the hearings, the Army’s hiring of Welch as its attorney, Welch’s activities after the hearings and his background. I interviewed Fred Fisher and James St. Clair in 1986 and have reviewed many source materials that document the assertions in this post. If anyone wants to see the bibliography of these sources, I will do so in another post at the conclusion of this series. Just make such a request in a comment to this or the other posts in this series.
