Arthur Garfield Hays

• Arthur Garfield Hays
• Born: December 12, 1881
• Died: December 14, 1954

Lawyer and civil libertarian, was born in Rochester, New York, the son of Isaac Hays and Laura (Garson) Hays, both Jewish immigrants from Frankfurt, Germany. In 1893 Isaac Hays, a prosperous clothing manufacturer, moved the family to New York City. Hays attended public school, the City College of New York, and Columbia, graduating from the latter with a B. A. degree in 1902. At college he continued his interest in debate, lacrosse, and other competitive activities, and in writing.

While attending Columbia Law School he wrote the lyrics for the 1903 varsity show, was elected to the Law Review, and acquired a reputation as a skilled and tough-minded but not brilliant advocate. He received his LL.B degree in 1905. After working a few months for a well-known law firm, he organized, in partnership with two other young lawyers, the firm of Hays, Kaufman & Lindheim, which specialized in international business law. The firm was dissolved in 1921 when his two partners were disbarred for having acted as German agents. Hays himself was labeled pro-German because he had defended his partners and had representing German and German-American clients.

The firm of Hays, St. John & Moore, founded in 1921, also specialized in international property law, but Hays soon acquired a variety of clients on Wall Street, on Broadway, and in Europe and many parts of the United States—clients who reflected and helped to shape his own far-ranging interests. Hays represented publisher Horace Liveright, who reopened The Captive, a play with a lesbian theme whose producers had closed it after threats from the authorities. He helped to organize the Songwriters’ Protective Association and to reorganize the Dramatists Guild. He represented bankers and brokers, and in 1933 earned the largest fee of his career when he broke the $50 million will of eccentric recluse Ella Wendel in behalf of sixty heirs. His divorce in 1924 spurred his interest in divorce law, and he published several articles on the subject.

It was his work on behalf of constitutional rights that Hays found most satisfying, and in this field he gained his lasting reputation. From the early 1920s to the 1950s he was involved in virtually every civil liberties cause célebrè, and in many cases not so well known, as counsel to and later director of the American Civil Liberties Union. During the 1921 coal strike Hays was beaten by company guards after speaking at a labor meeting and was then jailed by the authorities of Vintondale, Pennsylvania. He helped Clarence Darrow and Dudley Field Malone in the later stages of the John Scopes “monkey-trial” in Dayton, Tennessee, in 1925 (newspaper accounts contrasting Hays with the urbane and well-tailored Malone described him as “thickset, stocky and democratic-looking, with a rough shirt open at the neck”). He was a member of the Sacco and Vanzetti defense, and he joined H. L. Mencken in defying Boston’s Watch and Ward Society by peddling copies of Mencken’s American Mercury containing an article blaming respectable society for a young woman’s prostitution. He defended the Countess of Carnarvon when her entry into the United States, along with that of her husband, was denied because she had been divorced by her former husband on the ground of adultery. Hays published Lei Freedom Ring in 1928, an account of these and other cases, prefaced by a long essay deploring the menace to liberty caused by the conformity and Babbitry of postwar America.

In the early 1930s Hays went to Europe to join many other lawyers in intervening on behalf of the defendants in the Reichstag Fire trial in Germany. He participated in an appeal to the U.S. Supreme Court resulting in the reversal of the rape convictions of the Scottsboro Boys and the reaffirmation of the right to counsel. He defended freedom of speech for both the Nazi-oriented German-American Bund and the Communist John Strachey. He was a member of the ACLU’s Committee on Trade Union Democracy, which framed a bill of rights for union members. In 1937 he took part in a survey of civil liberties in Puerto Rico.

During the late 1920s and 1930s, the press, which had earlier generally denounced the ACLU as a front for radicals, gradually shifted toward approval, causing Hays, who regarded every case as a battle, to remark to reporters, “Sometimes we win, but we never lose.” The House Committee on Un-American Activities (HUAC) continued to call the ACLU a Communist front until 1939, when it temporarily reversed itself after apparently being assured by Hays and Morris Ernst that the organization would expel Communists on its national board.

After World War II, when HUAC picked up its anti-Communist theme, Hays submitted to it a proposal requiring that “all suspected Communists and people we don’t like” be subjected to a mental test; that $10 billion be appropriated to invent a Communist-detecting machine; and that pending its development all Communists, male and female, be required to wear boots, fur hats, and red shirts and to grow beards. The committee was not amused.

During World War II his long-standing interest in equal rights for blacks led Hays into an unsuccessful attempt to prevent segregation among draftees. He served on the law committee of the National Association for the Advancement of Colored People and resigned from the American Bar Association over its racist membership policies.

In politics Hays was an independent liberal. He began his career in the progressive period and became leader of the Progressive party in New Rochelle, New York. He was a prominent member of the Committee of Forty-eight that attempted to nominate Robert M. La Follette for president in 1920. For a while he wore the label of La Follette’s chief backers, the Farmer Labor party, and in 1924 he was New York State Chairman of the Progressive party. He generally favored President Franklin D. Roosevelt’s New Deal but believed that some of its legislation and regulations, particularly those of the Securities and Exchange Commission, were unduly burdensome because of vagueness.

In 1908 Hays married Blanche Marks; they had one daughter. Shortly after their 1924 divorce, Hays married Aline Davis Fleisher, who died in 1944. They also had one daughter. Hays in his later years devoted most of his time to writing and to civil liberties work.

Hays discussed his beliefs in Democracy Works (1939), his cases in Let Freedom Ring (1928) and Trial By Prejudice (1933), and his life in City Lawyer (1942). He wrote many articles for The Nation, The New Republic, Forum, and The Saturday Review of Literature. For his work with the ACLU, see C. L. Markmann, The Noblest Cry (1965); A. Reitman, ed., The Pulse of Freedom: American Liberties, 1920-1970’s (1975); C. Lamont, The Trial of Elizabeth Gurley Flynn by the American Civil Liberties Committee (1968); W. Goodman, The Committee (1964); and the Dictionary of American Biography, supplement 5 (1977).