Josiah Quincy, Jr., Takes the Case (Again)

Back in October 2006, I noted a public dispute over whether unpopular defendants deserve legal representation. The Republican candidate for governor of Massachusetts had criticized her opponent, current Gov. Deval Patrick, for doing so.

This month Liz Cheney raised the same complaint about people working for the U.S. Justice Department. Cheney is still best known for who she was born to, and the department is still dealing with how her father’s administration tried to politicize its personnel choices (inspector’s report as PDF).

Several prominent Republican lawyers have now called Cheney’s campaign “a shameful series of attacks.” They stated, “The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre,“ meaning it predates the U.S. Constitution. (Not that the Cheneys have shown much interest in the details of the U.S. Constitution.)

I’ve raised questions about Adams’s memory of how he came to defend the soldiers and how much grief he really took because of that. But there’s solid evidence of criticism for the same decision from Adams’s younger colleague on the defense team, Josiah Quincy, Jr.

As discussed in the Colonial Society of Massachusetts volume Portrait of a Patriot, Quincy was an energetic advocate for the Whig party in pre-Revolutionary politics. His father, Col. Josiah Quincy of north Braintree, wrote to Josiah, Jr., on 22 Mar 1770:

My dear Son,

I am under great affliction, at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of the fellow citizens. Good God! Is it possible? I will not believe it.

Just before I returned home from Boston, I knew, indeed, that on the day those criminals were committed to prison, a sergeant had inquired for you at your brother’s house,—but I had no apprehension that it was possible an application would be made to you to undertake their defence. Since then I have been told that you have actually engaged for Captain [Thomas] Preston;—and I have heard the severest reflections made upon the occasion, by men who had just before manifested the highest esteem for you, as one destined to be a saviour of your country.

I must own to you, it has filled the bosom of your aged and infirm parent with anxiety and distress, lest it should not only prove true, but destructive of your reputation and interest; and I repeat, I will not believe it, unless it be confirmed by your own mouth, and under your own hand.

Your anxious and distressed parent,...

Four days later the young lawyer replied to his father from Boston:

Honoured Sir,

I have little leisure, and less inclination either to know, or to take notice, of those ignorant slanderers, who have dared to utter their “bitter reproaches” in your hearing against me, for having become an advocate for criminals charged with murder. But the sting of reproach when envenomed only by envy and falsehood, will never prove mortal.

Before pouring their reproaches into the ear of the aged and infirm, if they had been friends, they would have surely spared a little reflection on the nature of an attorney’s oath, and duty;—some trifling scrutiny into the business and discharge of his office, and some portion of patience in viewing my past and future conduct.

Let such be told, Sir, that these criminals, charged with murder, are not yet legally guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation; that from abundant caution, I at first declined being engaged; that after the best advice, and most mature deliberation had determined my judgment, I waited on Captain Preston, and told him I would afford him my assistance; but, prior to this, in presence of two of his friends, I made the most explicit declaration to him, of my real opinion, on the contests (as I expressed it to him) of the times, and that my heart and hand were indissolubly attached to the cause of my country; and finally, that I refused all engagement, until advised and urged to undertake it, by an Adams, a Hancock, a Molineux, a Cushing, a Henshaw, a Pemberton, a Warren, a Cooper, and a Phillips.

Samuel Adams, John Hancock, William Molineux, Thomas Cushing, Joshua (probably) Henshaw, Samuel Pemberton, Dr. Joseph Warren, William (or the Rev. Dr. Samuel) Cooper, and William Phillips made up the bulk of genteel Whig office-holders and activists in Boston. They all agreed that Quincy should take the case and ensure the soldiers received a fair trail.

The young lawyer continued:

This and much more might be told with great truth, and I dare affirm, that you, and this whole people will one day REJOICE, that I became an advocate for the aforesaid “criminals,” charged with the murder of our fellow-citizens.

I never harboured the expectation, nor any great desire, that all men should speak well of me. To inquire my duty, and to do it, is my aim. Being mortal, I am subject to error; and conscious of this, I wish to be diffident. Being a rational creature, I judge for myself, according to the light afforded me. When a plan of conduct is formed with an honest deliberation, neither murmuring, slander, nor reproaches move. For my single self, I consider, judge, and with reason hope to be immutable.

There are honest men in all sects—I wish their approbation;—there are wicked bigots in all parties,—I abhor them.

I am, truly and affectionately,

your son,

Josiah Quincy Jun.

A few weeks later, Quincy also agreed to represent Ebenezer Richardson, an even less popular defendant charged with killing young Christopher Seider. Because an unjust trial doesn’t produce justice for anybody.