Bending Toward Justice

Friday, January 15, 2016
In the mid-19th century Richard Henry Dana Jr., was one of the most famous men in America.

He was just 25 when his f irst book, Two Years Before the Mast , a classic account of going to sea, was published in 1840 by Harper and Brothers, vaulting him to literary fame.

He was also considered one of the most brilliant legal advocates of his day, as he took on the infamous Fugitive Slave Act of 1850, the question of whether the Union could legally blockade Southern ports during the Civil War, and prepared for the trial of Jefferson Davis, president of the Confederate States of America, for treason after the end of the Civil War.

While Dana is probably remembered more for Two Years Before the Mast , a new biography of Dana, The Slavish Shore by Jeffrey Amestoy, argues that Dana’s contributions to American law and society have been overlooked.

Amestoy, who lives in Waterbury, served as Vermont’s attorney general from 1985 to 1997, and as Chief Justice of the state Supreme Court from 1997 to 2004, when he retired.

In 1999, Amestoy wrote the three-judge majority opinion of the Vermont Supreme Court in Baker v. Vermont , which held that the state’s denial of marriage rights to same-sex couples violated the Vermont Constitution, an opinion that paved the way for the state’s civil unions law. After leaving the bench, Amestoy has taught at the Kennedy School of Government at Harvard.

Published by Harvard University Press, The Slavish Shore examines how Dana’s early exposure to social injustice would shape his approach to the law. It is the first major study of Dana since the publication of his journals i n 1968.

Dana’s career was marked by his intellectual breadth, his willingness to buck the rigid orthodoxies of the day and his victories in cases of great importance to the Union.

“He combined both the facility to paint a picture with the capacity to make legal arguments that were persuasive,” said Amestoy in an interview. “It’s very difficult to think of another American lawyer who also wrote a literary classic. To say he was gifted is to understate it.”

And the story of Dana’s life, which spanned some of the most turbulent years in American history, is worth reexamining in another period of social upheaval and scrutiny of institutional racism, Amestoy said.

Today, Dana is probably remembered more for Two Years Before the Mast , his eloquent account of his experiences as a merchant seaman aboard the ships Pilgrim and Alert, sailing from Boston to California and back, battling the mountainous oceans and ice floes around Cape Horn at the tip of South America, and writing in keenly-observed detail about trading along the California coast when it was still part of Mexico.

It’s been 175 years since Two Years Before the Mast’s publication, and it has never gone out of print. Melville called it unmatchable and said that Dana’s descriptions of rounding the Horn “must have been written with an icicle.”

The legend, Amestoy said, is that when the `49ers flooded into California during the Gold Rush, they carried with them a pick-axe and a copy of Two Years Before the Mast , to acquaint themselves with the customs and the country.

Now 69, Amestoy first read Two Years Before the Mast in high school and returned to it later in life. “One of the things that drew me to Dana was his extraordinary tenacity and courage,” Amestoy said.

Amestoy was raised in Rutland but went to law school in California, and his family on his father’s side, which is Basque in origin, dates back to 19th century California. That parallel between Amestoy, a New Englander with California roots, and Dana, a New Englander who saw California in its earlier days of Spanish settlement (and whose name graces a number of sites in California), was one of the reasons that Amestoy began researching Dana’s life in earnest.

In 2010 Amestoy wrote the essay T he Supreme Court Argument that Saved the Union: Richard Henry Dana Jr. and the Prize Cases , which was published in the Journal of Supreme Court History , and subsequently was awarded the Supreme Court Historical Society’s Hughes-Gossett Prize for best article.

Dana was born into an old and prominent Boston family and trained at Harvard Law School. Like other Boston Brahmins before him, Dana could have trodden a well-worn path into the kind of law that protects the interests of the affluent and the powerful.

But from an early age, Dana rebelled against flagrant abuses of authority, Amestoy writes in his biography.

As a school boy Dana witnessed and endured corporal punishment, which filled him with indignation. Early on in Two Years , Dana writes powerfully about his feelings of moral outrage when the captain of the California-bound Pilgrim, a hard and capricious man, demands that sailors committing what he views as intolerable offenses, although they are actually very minor infractions, be mercilessly flogged.

Reading such passages, Amestoy said, “it didn’t seem possible to me that (Dana) was a stereotypical Brahmin lawyer” even though his lineage and circle of acquaintances might lead one to believe that.

And, indeed, he wasn’t.

A drawing of Dana, made around 1840, shows a young man with long hair to his shoulders, deep-set eyes, a searching, open gaze, and a jaw that looks as if it might set into uncompromising granite when confronting those whose views he found morally reprehensible.

And over the course of his life, there was no shortage of legal issues that fired Dana’s conscience. In a career of high-profile, high-stakes cases, one of the toughest things Dana ever did was to take on the Fugitive Slave Act of 1850, which Amestoy called the most draconian statute ever passed in the U.S.

The act mandated that persons who had allegedly fled slavery (and the word of a slave owner was considered sufficient evidence) were to be returned forcibly to the situations they’d escaped. It was a crime to aid or abet an alleged runaway slave. The writ of habeas corpus was not available to those apprehended as runaway slaves, and there was no right of appeal, Amestoy writes in the biography.

That Dana acted as lawyer a number of times for men who had fled slavery in the South and wanted to make, and had made, lives for themselves in Boston, only to be apprehended and, in some cases, forcibly returned to the South, earned him very few admirers in his elite circle in pre-Civil War Boston. He was also a member of the Free Soil party, which called for prohibiting slavery in the western territories.

“He was a reminder that most people of his social class supported sending Boston residents back into slavery. Northerners don’t like to hear that story,” Amestoy said.

The popular view of Boston is that it was the Athens of abolitionism, and a sworn enemy of the slave interests. But that is not always borne out by the facts, Amestoy said.

“Americans tell a better history of the country than we deserve,” Amestoy said. “Slavery was the public law of the U.S. The U.S. was a pro-slavery Republic, and there was not a moment from the beginning of the Republic to the Civil War, in which the legal system did not represent the slave owners.”

While Boston was home to such abolitionists as William Lloyd Garrison and Henry Wadsworth Longfellow, it was also home to such prominent Brahmins as Harvard professor George Ticknor, Oliver Wendell Holmes, Sr., and head of the Boston bar Rufus Choate, all of whom unquestioningly supported the Fugitive Slave Law because they viewed African-Americans as inferior, and because the law served their financial interests.

“Certainly in the context of Black Lives Matter, if you’re looking for perspective on why the African-American community has mistrusted the police and judicial authority, look to Boston,” Amestoy said.

The Brahmins who supported the Fugitive Slave Act were led by New Hampshire’s own Daniel Webster, whom Amestoy regards with an unblinking eye.

“He was unquestionably great, but greatness is a complicated concept,” Amestoy said. “Webster’s paramount ambition was to be president . He thought he could be elected in 1852, so part of his strategy was to convince the South that he would support the Fugitive Slave Law. He was willing to abuse judicial and executive authority.”

That Dana was outspoken in his opposition to Webster resulted in Boston’s legal establishment calling for a boycott of Dana’s practice, which proved to be a crushing financial burden and lost him six to seven years of solid income, Amestoy said.

Dana had married Sarah Watson, of Hartford, Conn., in 1841, and by 185 1 they had five children. (Their last, and sixth, child was born in 1857.) Dana worked extraordinarily long hours, was often called away and was rarely at home, leaving his wife to essentially raise their six children.

In 1863 , Dana was part of the legal team chosen to represent the government in the Prize Cases, which came before the Supreme Court. The issue was whether the Union could blockade Southern ports, seize vessels attempting to enter or leave those ports and then sell off a seized ship’s cargo. If two countries were at war, international law said, Yes; but did the same hold true for a country split into two opposing sides, with one side blockading the other?

Although there were other lawyers on the government team, it was Dana’s legal arguments that swayed the court in favor of the Union’s right to blockade Southern ports. Without that victory, Amestoy said, it’s possible that the Union would have had to negotiate a peace with the Confederate States of America. After the war, in 1868, the Union sought Dana’s help again in the case against Jefferson Davis for treason, which never came to trial for a variety of legal and political reasons.

Through out his career, Dana rose to meet the challenges, despite extraordinary pressures from those elements of Brahmin society that regarded him as a class traitor. He suffered from anxiety and stress, his marriage was not always a happy one and he tried to balance the obligations of family and work, not always successfully. The one part of his life that afforded him a measure of serenity and freedom was the sea.

“I greatly admired Dana’s willingness to risk everything, his financial security, his health, without giving it a second thought. I was fascinated by his struggle to balance his sense of duty with his desire to go to open sea,” Amestoy said.

Dana died in 1882 in Rome, where he is buried. Although Dana probably imagined he would die and be buried in Cambridge, where he grew up, it’s fitting, in a way, that he died in a foreign country, far from home, after having sailed the Atlantic one last time, Amestoy said. It speaks not only to the way he was of his country, but also to his estrangement from his political class.

And Dana’s life and career hold lessons still. Just as intellectual Boston has tended to ignore that during the 19th century, much of the city vigorously supported the Fugitive Slave Act, so much of contemporary America would prefer not to take a hard look at how the effects of slavery linger still, consigning racial animosity to a distant past.

“By forgetting that, it makes it much harder. If we had a more honest accounting , we’d have a better understanding of the current dilemma,” Amestoy said.

Amestoy will read from The Slavish Shore on Wednesday at the Phoenix Bookstore in Rutland at 4:30 p.m.

Nicola Smith can be reached at


Richard Henry Dana Jr., was 25 years old when Two Years Before the Mast was published. His age was incorrect in an earlier version of this story.

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