Guest post by Michael Ariens:
This is the second of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).
In an April 1851 speech, thirty-five-year-old Boston lawyer Richard Henry Dana Jr. attacked Daniel Webster for his support of the slavery-protecting Compromise of 1850. Dana charged Webster had entered into a corrupt bargain with Boston’s elite, who kept Webster “in a state of endless servitude.” Cotton Whigs attacked Dana. In June, the Boston Daily Advertiser published an unsigned article suggesting economically retaliate against Dana by boycotting his services. Its author was George Hillard, a lawyer who served the Brahmins who wanted Dana punished. The following month lawyer Rufus Choate, Webster’s friend and a zealous representative of his paying clients, called out Dana at a social dinner of the [Joseph] Story Association. Dana was one of those “babblers of the law” who should remember the fate of Socrates.
Efforts in Boston to enforce the Fugitive Slave Act, an odious part of the Compromise of 1850, had failed by mid-1851. Now Secretary of State, Webster “ordered” United States Attorney George Lunt to enforce the Act. Lunt proceeded by obtaining grand jury indictments against ten men, including two lawyers, Robert Morris and George Davis. Morris and Davis had represented the alleged fugitive Shadrach Minkins in a so-called rendition proceeding. Minkins had successfully escaped re-enslavement with the aid of members of Boston’s Black community. Morris was the only Black lawyer in Massachusetts, and his indictment for aiding and abetting Minkins’s escape appeared intended to serve as a warning to that community. Dana represented each of the four persons eventually tried in the “rescue” cases. He and fellow counsel John Hale succeeded in each case. In Davis’s case, the indictment was dismissed before trial. Morris’s case initially ended in a mistrial. In his November re-trial, Morris was acquitted.
Dana represented all of the rescue case defendants for $400, a steep discount, and represented alleged fugitives without pay. One of those fugitives was Anthony Burns, who had been taken before a rendition commissioner in May 1854. Dana learned of these events, found Burns, and asked whether Burns wished to be represented, and if so, whether by Dana. Burns later agreed. Dana was unsuccessful, but one of his biographers characterized his actions as “extraordinary trial advocacy.”
On the evening of the day in which Burns boarded the ship marking his enslavement, Dana was walking home when he was attacked by a paid would-be killer. Dana was struck with an iron bar just above the eye; he not only survived, but continued to practice law.
In 1853, Massachusetts held a constitutional convention. George Hillard renewed his 1851 criticism of Dana: Dana’s decisions to represent clients unpopular to some of Boston’s elite ignored the fact that “the bread that he & I eat is drawn from the business community of Boston.” Dana should thus adhere to that community’s values and decline to represent unpopular causes. Dana immediately replied: “The hand that feeds us! The hand that feeds us! Sir, no hand feeds me that has any right to control my opinions!” As noted above, he represented Anthony Burns the following year. Dana may have exaggerated when he concluded his practice was hampered for six to eight years, but it appears to have caused his income to fall. After the rendition of Burns, the violent attack on Dana, and the adoption of the Kansas-Nebraska Act, all within a week’s time, the Brahmin boycott of Dana’s practice ended as a practical matter.
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