Slavish Shore: The Odyssey of Richard Henry Dana, Jr.

Quite how to share my review in Wall Street Journal, isn’t entirely clear. Here is the URL

http://www.wsj.com/articles/from-harvard-to-the-high-seas-1440024610

Or you can read below. What neither option conveys is that it was printed on the Opinion page along with a long piece by Karl Rove and F. W. de Klerk….In the immortal words of David Byrne “How did I get here?”

From Harvard to the High Seas

Dana’s experience sailing with ‘the scum of the sea’ led him to a career as a lawyer defending the rights of the downtrodden.

By CAROL BUNDY
Aug. 19, 2015 6:50 p.m. ET

In 1834 a young and disenchanted Harvard undergraduate, Richard Henry Dana Jr., threw over the expectations of his family and social class and signed on as an able- bodied seaman. For two years he lived among the flotsam and jetsam of humanity in the holds of two ships, the Pilgrim and the Alert. To mangle Wellington’s famous phrase, these men were “the scum of the sea” at a time when to rule the waves was to rule the world. And it was from them that Dana acquired his less-than-formal education. Of one of his mentors Dana said that “every sin that a sailor knows, he had gone to the bottom of.” Along the way he came to admire these men, not for their sinning but for their fortitude in withstanding the hardships and privations of maritime life, terrible even at the best of times. At its most extreme was the arbitrary power of a ship’s captain to inflict vicious floggings that could leave a man permanently damaged.

Dana’s account of his time at sea, “Two Years Before the Mast,” was published in 1840 and has never been out of print. But it was as a lawyer that Dana made his living and his reputation and as a lawyer that he daily expressed how his experience among common men had affected him. He began, in the 1840s, by defending the rights of sailors under admiralty law, a task not unlike drawing water from a stone. It was not surprising, then, that in the 1850s he moved to defending the rights of fugitive slaves.

In his biography of Dana, “Slavish Shore,” Jeffrey Amestoy, a former attorney general of Vermont and chief justice of the state’s Supreme Court, excellently reveals how Dana wrested from the text of the U.S. Constitution the acknowledgment that the African- American slave, a kind of property as far as the traditional reading went, also had rights. Dana explained the pleasure he took in advocating for the underdog: “There is nothing on earth nearer Heaven, than when judges of the land vindicate the rights of such a man against the popular sentiment, or popular interests of the hour.”

Dana’s decision to defend the rights of the downtrodden was courageous, particularly for a man who needed to earn a living. The Dana family, once the top-drawer of prerevolutionary Cambridge, Mass., kept their prestige after independence but lost their money. It fell to Richard Henry Dana Jr. to support father, brother, aunts, wife and many children—hardly the ideal conditions for a man to stand on principle. But that he did, and he was forced to take to the lecture circuit to supplement a legal career deprived of the lucrative retainers offered by New England’s wealthiest entrepreneurs.

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By the mid-1850s and the passage of the Kansas-Nebraska Act, when the tide of popular opinion in New England turned against slavery, Dana had the potential for a political career. When he finally held elective office, as a state legislator, his performance was compromised by the fact that, as Mr. Amestoy explains, he “had no instinct for the ‘politics’ of an issue—nor would he have followed it had he possessed one.” Honest to a fault, Dana never had the kind of influence he would have liked despite his prestige as an early opponent of slavery and his role as a founder of the Republican Party.

Mr. Amestoy goes out on a limb in a chapter titled “The Supreme Court Case That Saved the Union.” This concerns the Prize Cases, argued before the Supreme Court in 1863, when Dana was U.S. district attorney for Massachusetts. During the blockade of the Confederacy, ships were seized. Were these seizures piracy, or were the ships prizes of war? Congress had never declared war, nor did Lincoln wish to recognize the Confederacy and thereby acknowledge the right to secede. And yet to escape a piracy conviction, the government needed a state of war to exist.

Dana rather brilliantly argued that “war is a state of things, and not an act of legislative will.” The court accepted his argument and in its decision declared that “it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States.” Hard to believe this case saved the Union, and Mr. Amestoy backs away from the grandiose chapter title to claim that it “saved” not the Union but its morale.

Dana’s other big case was the charge of treason against Jefferson Davis. William Evarts, the U.S. attorney general, brought in Dana after the war as a special prosecutor to build the case for the federal government. Once again, the problem was that the government did not wish to recognize the Confederacy. Set up to take the fall for the administration, Dana was able to stall and delay until it became politically possible for the government to abandon its case: “It will settle nothing in law . . . not now settled & nothing in fact which is not now history.” Hardly the way to build a law business, but imagine how much more livable life would be if all lawyers thought that way!

Mr. Amestoy is at pains to show Dana as uniquely in conflict with his class. But Dana was by no means the only young man of high birth in Boston to take to the sea, or the only antislavery member of the upper classes, or the only Brahmin to wander into dens of iniquity. Other such freethinkers existed, but Mr. Amestoy ignores them. Without this context, one of the most perplexing aspects of this complex man is made more so.

Almost every August until his death in 1882, Richard Henry Dana Jr.—author, lawyer, federal district attorney, state legislator, member of the elite intellectual society the Saturday Club, scion of a founding family and the financial mainstay of his immediate family—left all that behind and revisited his youthful days as a common seaman. He disappeared to some port city dressed up as a sailor and spent several weeks in the most dangerous neighborhoods that sailors were known to frequent. What was he doing? And why? Mr. Amestoy offers us only the most oblique glance at this annual ritual, leaving us to guess its meaning. It is an opportunity missed to unlock a brilliant and enigmatic man.

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