Saturday, August 1, 2015

The slurs of vessel owners

‘The trial comes on this week. I am to defend the mate; and that I can do with a clear conscience, for I believe him innocent even of an unjustifiable assault; but to stand by in silence and see a guilty man escape, when the weapon to convict him is in my own hand, is hard indeed.’ This is the American lawyer Richard Henry Dana Jr, born 200 years ago today, writing in his diary about the case of a ‘poor negro’ who had died from flogging on board a ship. Although the ship’s mate, being defended by Dana, had told him who was guilty he refused to testify to this in court. The diaries are said to provide one of the fullest portrayals available of the social life of a well-connected Boston family of the time.

Dana was born on 1 August 1815 at Cambridge, Massachusetts, into a distinguished New England family. His father - also Richard Henry - was a lawyer and a pioneer of American literature. Dana Jr was first schooled in Cambridgeport, then in a private school overseen by Ralph Waldo Emerson. In 1831, he enrolled at Harvard College, where he was given a six-month suspension for taking part in a protest. He contracted measles, followed by ophthalmia. Thinking it would help his failing vision to go to sea, he enlisted as a merchant seaman, on a brig called Pilgrim leaving Boston and bound for Alta California, then part of Mexico. On witnessing floggings, he vowed to try to help improve conditions for seamen. For much of the time in California, he was curing hides and loading them onto ships. He returned two years later on another vessel, the Alert, experiencing terrifying weather conditions.

Dana then enrolled in Dane (now Harvard) Law School, and was admitted to the bar in 1840. That same year he succeeded, after various attempts, to publish a book - Two Years Before the Mist - based on diaries he had kept during his experience as a merchant seaman. The book (available at Internet Archive) has become a classic of American literature. Essayist Morris Wright wrote, in a 1960s edition of the book, that it was ‘conceived as a protest and written to improve the lot of the common sailor’; and he also claims it influenced Herman Melville (who was born on the same day as Dana but four years later, and who would write Moby Dick a decade after Dana’s book). In 1841, Dana published The Seaman’s Friend, an authoritative guide to the legal rights and duties of sailors. The same year he married Sarah Watson; they had four daughters and one son.

Dana went on to specialise in maritime law, but also to become involved in the abolition movement, helping to found the anti-slavery Free Soil Party in 1848, and to offer free legal aid to black people captured under the Fugitive Slave Law. In 1859, he travelled to Cuba, while the US was trying to decide whether to annex it or not, and subsequently published To Cuba and Back. During the Civil War, he served as a US Attorney, and successfully argued before the Supreme Court that the US government could rightfully blockade Confederate ports. In the late 1860s, he was a member of the Massachusetts legislature; and he also acted as a US counsel in the trial of Confederate President Jefferson Davis. In 1976, President Ulysses S. Grant named him ambassador to Great Britain, but the Senate refused to confirm the appointment, partly because of a lawsuit for plagiarism brought against him concerning a legal textbook he had edited.

Dana retired from his law practice in 1878, and spent much of the rest of his life travelling. In 1881, he moved with his family to Rome, where he died the following year. Further biographical information can be found at Wikipedia, The Maritime Heritage Project, Mark Winthrop’s web pages, and Tom Tylers web pages.

Dana kept a diary for much of his life, extracts of which are liberally sprinkled through a two volume biography, edited by Charles Francis Adams and published, in two volumes in 1890, by Houghton, Mifflin. These are freely available at Internet Archive. In the 1960s, though, Harvard University Press (HUP) published a three volume edition of Dana’s journals, annotated by Robert F. Lucid. These contain, according to HUP, Dana’s diaries, begun in 1841 and continued through to 1860, in their ‘entirety’. (However, Dana clearly kept diaries before this date, since it is well known he used those he kept during his 1934-1936 seaman days to write Two Years Before the Mist.) According to HUP: ‘the Journal provides graphic descriptions of Dana’s important legal cases, political and social activities and, in the process, one of the fullest portrayals available of the social life of a well-connected Boston family of the time.’

Here are a few extracts from Dana’s diaries taken from the first volume of Adams’ 1890 biography.

18 January 1842
‘Nothing talked of but Dickens’ arrival. The town is mad. All calling on him. I shan’t go unless sent for. I can’t submit to sink the equality of a gentleman by crowding after a man of note.’

26 January 1842
‘Letter from T. Colley Grattan (“High-ways and By-ways”) saying that Dickens wishes to see me, and is surprised that I have not called before, and fixing two P. M. for a call. At two P. M. call at Tremont House and am told that he is engaged. Send up name and am shown up. Kept disengaged on purpose to see Longfellow and myself. Talk a few minutes when Longfellow comes in with Sumner. Disappointed in D.’s appearance. We have heard him called “the handsomest man in London,” etc. He is of the middle height (under if anything), with a large, expressive eye, regular nose, matted, curling, wet-looking black hair, a dissipated looking mouth with a vulgar draw to it, a muddy olive complexion, stubby fingers, and a hand by no means patrician, a hearty, off-hand manner far from well-bred, and a rapid, dashing way of talking. He looks “wide awake,” “ up to everything,” full of cleverness, with quick feelings and great ardor. You admire him, and there is a fascination about him which keeps your eyes on him, yet you cannot get over the impression that he is a low-bred man. Tom Appleton says, “Take the genius out of his face, and there are a thousand young London shop-keepers about the theatres and eating-houses who look exactly like him. He has what I suppose to be true Cockney cut.

He inquires for father, and wonders he has not been to see him. Offers to call on him if he is unwell.’

27 January 1842
‘Dine with Dickens at F. C. Gray’s. [. . .] Like Dickens here very much. The gentlemen are talking their best, but Dickens is perfectly natural and unpretending. He could not have behaved better. He did not say a single thing for display. I should think he had resolved to talk as he would at home, and let his reputation take care of itself. He gave a capital description of Abbotsford [the mansion built by Walter Scott]. It was enough to make you cry. He described the hat Scott wore in his last illness, and the dents and bruises there were in it from his head falling against his chair when he lost the power of his muscles. It was heart-sickening. “And to think of a man’s killing himself for such a miserable place as Abbotsford is,” adds Dickens.

C. P. Curtis asks him if there were any such magistrates in London as Fang in “Oliver Twist.” Dickens says, “One just such, and many more like him,” and tells us that his Fang is a portrait of a magistrate named Tang, who was sitting when the book appeared, and that he was removed by the Home Department in ten weeks after the publication, upon a thorough inquiry. . .’

5 February 1842
‘Called on Dickens at 10.30 A. M. by appointment, as he leaves at one. He was at breakfast. Sat down with him. He was very agreeable and full of life. He is the cleverest man I ever met. I mean he impresses you more with the alertness of his various powers. His forces are all light infantry and light cavalry, and always in marching order. There are not many heavy pieces, but few sappers and miners, the scientific corps is deficient, and I fear there is no chaplain in the garrison.

Mrs. Dickens appears to be an excellent woman. She is natural in her manners, seems not at all elated by her new position, but rests upon a foundation of good sense and good feeling.’

14 December 1842
‘I had sued Captain Perkins and his brother the mate of the bark Clarissa Perkins for assaulting two seamen named Singleton and Parsons. Singleton is likely to die of his wounds, so I made complaint, and had the captain bound over criminally. I was obliged to do this because the district attorney declined acting. I can conceive of no reason except that in arguing against Bryant he got his feelings settled in favor of the officers. Dehon, who defended Perkins, alluded to my forwardness in urging the complaint against the master as an interference. I took him to task for this, and we had a long talk which resulted in my feeling more affection and respect for Dehon than before. He is a good fellow and has honorable feelings.

I often have a good deal to contend with in the slurs or open opposition of masters and owners of vessels whose seamen I undertake to defend or look after. It is more unpleasant when this is retailed by the counsel. Young lawyers are apt to take up the excitement and prejudice of the clients, which they ought to allay and keep free from. I never have trouble with the upper class of merchants, but only with the small grinding machines and petty traders who save by small medicine chests and poor provisions.’

3 April 1843
‘Spent the forenoon in court hearing Choate and Dexter in United States v. Le Crow, indicted for withholding provisions from his crew. Choate made a good argument, but flowery, overstrained and extravagant. Dexter was admirable. That man always seeks to come down upon his case. He seems to be a gentleman practising law, and not a mere lawyer. Calm, courteous, liberal and high-minded man.

A very troublesome case of professional difficulty has been harassing me for a week or two. A captain and mate of a merchant vessel were complained of for causing the death of the steward, a poor negro. The facts, as testified to by the men at the preliminary examination, were these: That the master and mate flogged the steward badly about four P. M. for insolence, etc. That the steward then went about his business for an hour or two. That he was again, about eight P. M., flogged, kicked and beaten badly by the master alone, so badly as would have caused the death of many men, as the crew believed. That after this last beating the captain ordered the mate to assist in taking the steward into the cabin. The mate did so. They lifted him in, he groaning like a dying man. After this the crew saw no more. There were no passengers, and no one in the cabin but the master and officers. The second mate was in his state-room, and swore that he knew nothing of the matter. The next morning, when the cook went to call the steward, he found him dead. The cook told the master and officers, and they went to his berth, and there found a glass stopple. They then went to the medicine chest, and the laudanum bottle was missing. They then said that the steward poisoned himself. The crew doubted this story.

The preliminary examination took place, and the master and mate were bound over to appear before the Grand Jury. In the interval the mate came to me and told me that he wished to ask my advice and to retain me as his counsel. He said he had a distinct defence from his captain, and must have separate advice and defence. He then told me confidentially, as his counsel, the whole story. When he had assisted the master in taking the steward into the cabin, they set him in a chair and found him dead. The captain then said, “Then I am in difficulty. You must assist me.” They then took the steward, laid him in his berth, the captain got the laudanum bottle from the medicine chest, poured out the laudanum, and placed the empty bottle and stopple by the side of the berth, and then they went to bed.

This was the case. All the facts testified to by the crew sustained its probability. It was stated solemnly, and was somewhat unfavorable to the communicator of it. Here then was, as I could not doubt, a case of manslaughter, if not of murder. Yet my knowledge of the facts came to me in the sacred character of a professional communication. I could not use them against my client. The law, as well as my own sense of justice and of the reason grounded in the policy of the profession, would forbid my divulging it. Unless a man can be safe in making a communication to his counsel, there would be an end of defences against every charge. I had received it, too, from a man who had a right and was able to keep his own secret under the implied, if not express, promise of secrecy. On the other hand, unless some use was made of the mate’s testimony, the master would go unpunished. I did all in my power to persuade the mate to go to the prosecuting officer and divulge the story, and promised him my assistance, and assured him that he would be safe; but he would not become state’s evidence, and he said it would ruin him with his employers, who were connected with the master, and being a foreigner he had nowhere else to look for support.

In this state I had to stand by and see the case changed from a charge of homicide to one of mere assault and battery for want of sufficient evidence. I did, several times, in conversation, express a strong opinion to a prosecuting officer, grounded on the evidence in court alone, however, that an indictment for manslaughter would be sustained against the master. But he would not risk it.

The trial comes on this week. I am to defend the mate; and that I can do with a clear conscience, for I believe him innocent even of an unjustifiable assault; but to stand by in silence and see a guilty man escape, when the weapon to convict him is in my own hand, is hard indeed. I have struggled against a desire to divulge, in some secret manner, the truth and the means of getting at it to the prosecuting officer. But I feel it would be wrong. I am merely unfortunate in possessing this painful knowledge.’

Finally, it is worth noting that Dana’s only son, also called Richard Henry, kept a diary. He married 
the daughter of poet Henry Wadsworth Longfellow, and made a name for himself as a lawyer and civil service reformer. Part of his diary was published in 1921 by Houghton Mifflin as Hospitable England in the Seventies: A Diary of a Young American 1875-1876, and can be read online at Internet Archive.

No comments: