Counsel for the Defense

"I am convinced," wrote Arthur Garfield Hays, "that the struggle itself whether temporarily won or lost, is what counts. To press for some cause bigger than oneself, however hopeless it may seem, is not necessarily noble. It's just about the best fun there is in life for people of my disposition." Last week a heart attack put an end to Lawyer Arthur Garfield Hays's 73 years of fun and fighting. Among his mourners at a Manhattan funeral parlor were Old Socialist Norman Thomas, Dr. Charles Francis Potter, champion of evolution and founder of the Euthanasia Society, Gambler Frank Costello and Showman Billy Rose.

Scopes & Romanoff. Hays, the only lawyer in his time to bear the names (more or less) of three Republican Presidents (his family name was originally Haas), pursued his liberal ways as a Republican, a Bull Mooser, a Farmer-Laborer, a La Follette Progressive, a New Deal Democrat, and finally as a rugged independent. If he was inconstant in his politics, he spent his life in single-purposed dedication to man's right to his own freedom. It made no difference to Hays if he happened to disagree with a client's views: the heart of the matter, he always insisted, was whether or not an individual's liberties had been damaged. Lawyer Hays was able to defend Harry Bridges' freedom of action and Henry Ford's freedom of speech with equal fervor.

As assistant counsel to Clarence Darrow, he defended John Thomas Scopes in Tennessee, and he helped Samuel Leibowitz defend the Scottsboro Boys in Alabama. When "Prince" Mike Romanoff got into passport difficulties and when William Randolph Hearst had his private telegrams subpoenaed by a congressional committee, Hays came to their aid.

Although the Nazis would not allow him to plead because he was a Jew, Hays appeared in court and helped to defend the Bulgarian Communist, Georgy Dimitrov, in the Reichstag fire trial, and much later he spoke up for the rights of Nazis in the German-American Bund. He got his biggest fee--$578,000--in 1933, when he successfully broke the $50 million will of Ella Wendel, an eccentric spinster, on behalf of 60 heirs. In the '30s he defended Wall Street brokers, when he thought the SEC was trampling on their rights. "I hate censorship of business as well as of books," said Hays, who became rich on the fees of his banker and broker clients.

Hatrack & the Countess. When Henry Mencken fought the Watch & Ward Society and was arrested in Boston for selling the issue of his American Mercury that contained the story of a casual prostitute called Hatrack (she took her customers to cemeteries*), Mencken retained Hays. When the Countess Cathcart was denied entry to the U.S. because she had had an affair with the Earl of Craven (the Earl was admitted without a fuss), Hays was at her side. In his autobiography, City Lawyer, Hays recalls that when the Countess was brought before a deportation board of inquiry, she asked: "But haven't you men ever committed adultery?" The board, Hays reported, replied almost in chorus: "Madam, we are American citizens!"

In summing up his own career, Hays liked to draw a parallel from the life of

John Brown: "After his capture, John Brown said he was worth more for hanging than for any other purpose. For myself, it may well be that I have been worth more for the defense of the rights of others to express their ideas than for any other purpose."

*Protestant for Roman Catholics, and vice versa.

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