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RICHARD HENRY DANA, JR. 
 
 {Author of " Two Years Before the Mast ") 
 
 SPEECHES IN STIRRING TIMES 
 
 AND 
 
 LETTERS TO A SON 
 
 EDITED, WITH INTRODUCTORY SKETCH AND NOTES 
 
 BY 
 
 RICHARD H. DANA (3d) 
 
 BOSTON AND NEW YORK 
 
 HOUGHTON MIFFLIN COMPANY 
 
 (^tt Stitier^iDe prz^^ Cambctii0e 
 
 1910 
 

 COPYRIGHT, 1910, BY RICHARD H. DANA 
 ALL RIGHTS RESERVED 
 
 Published November iqio 
 
 ©CI,A278098 
 
PREFATORY NOTE 
 
 Those who have followed Mr. Dana as a sailor in 
 his *' Two Years Before the Mast " may have a special 
 interest in following him as a lawyer, publicist, states- 
 man, and father in the Speeches and Letters. 
 
 In the Introductory Sketch and the Notes, I have 
 freely stated what I thought, without reserve. I be- 
 lieve the facts will warrant all the statements; but I 
 have not held back from saying what was in my 
 mind or heart for fear of any bias I may have in 
 writing of a much beloved father. 
 
 Let the reader, now that he is forewarned, forearm 
 himself with as many grains of chloride of sodium as 
 he desires. 
 
 R. H. D. 
 
CONTENTS 
 
 I. Introductory Sketch 1 
 
 II. Journal Entries of Conversations with "Uncle 
 Edmund"; Pitt, Fox and Sheridan in Parliament. 
 Washington's Laughter 64 
 
 III. The Bible in Schools 69 
 
 IV. Speech on the Judiciary; Massachusetts Constitu- 
 
 tional Convention of 1853 78 
 
 V. Usury Laws. February 14, 1867 117 
 
 VI. Boston Free Soil Meeting. 1848 145 
 
 VII. Buffalo Free Soil Convention. 1848 149 
 
 VIII. The Great Gravitation Meeting; a Parody on the 
 
 Fugitive Slave Law 164 
 
 IX. Argument on Behalf of Charles G. Davis; Fugitive 
 
 Slave Rescue Case 178 
 
 X. Against the Rendition of Anthony Burns to 
 
 Slavery 210 
 
 XI. The "Grasp of War" Speech. June 21, 1865; Basis 
 
 for Reconstruction 234 
 
 XII. The Prize Causes. Enemy's Territory and Alien 
 
 Enemies 273 
 
 Xin. Rufus Choate 288 
 
 XIV. The Monroe Doctrine 295 
 
EICHAKD HENRY DANA, JR. 
 
 1815-1882 
 
 INTRODUCTORY SKETCH 
 
 Mr. Charles Francis Adams in 1890 wrote a strik- 
 ing biography of my father, and for this our family is 
 deeply indebted to him. It was then planned that I 
 should publish, as a supplement, my father's speeches. 
 They had a far more permanent value than most liter- 
 ary remains. They dealt with important matters, on 
 broad, permanent principles. Many were on subjects 
 still before the public to-day, such as the appoint- 
 ment of judges for life as contrasted with election for 
 terms of years, the inutility of usury laws, the use of 
 the Bible in the public schools, and the true principles 
 of the Monroe Doctrine. Others were on subjects hav- 
 ing a lasting historical value, such as the arguments in 
 the Fugitive-Slave cases, his Lexington Oration, his 
 addresses on Edward Everett and Rufus Choate, the 
 arguments on the Prize Causes, and the speeches just 
 before the outbreak of the Civil War and on the begin- 
 ning of the Reconstruction Period. There were also 
 letters from my father to me, which I believe are 
 models to aid fathers generally in dealing with sons. 
 
 The project, however, of publishing a selection of 
 these was delayed some sixteen years by one of those 
 curious and provoking accidents that happen in the 
 best regulated families. Mr. Adams returned, by ex- 
 
2 RICHARD HENRY DANA, JR. 
 
 press, addressed to my mother's house in Cambridge, 
 the letters, journals, speeches, etc., mostly contained 
 in a large, bright green, sheet-iron box, in which they 
 had been sent to him. When I came to look for them, 
 they were nowhere to be found. None of my mother's 
 family or servants had seen this green box since it was 
 sent to Mr. Adams. They lit a candle, swept the house 
 and searched diligently, but found it not. Besides the 
 loss of letters, some of the addresses preserved were 
 only in the form of newspaper clippings, with correc- 
 tions by my father, impossible to be replaced. About 
 two years ago, being in the L attic of my mother's 
 house in search of some papers, a bit of bright green, 
 in the very eaves, caught my eyes. I climbed over 
 trunks and discarded furniture, through dust and cob- 
 webs, and there was the missing box ! Eagerly I dragged 
 it out and opened the cover, there to find all intact. 
 After this, who does not believe in ghosts .^^ 
 
 With regard to the letters from a father to his son, 
 the question arose, should I publish these or not? 
 I submitted them, with an introduction showing how 
 my father had dealt with me at critical times of my 
 youth, to several friends. The advice I received was 
 most contradictory. Some said, the cold unsympa- 
 thizing world would ridicule my frankness, deride 
 my youthful faults, and at best consider the whole 
 a string of trifling details, not worth the printing. 
 Others thought they would be a great help to perplexed 
 fathers in the difficult task of training their boys, 
 and that if published, there would be many grateful 
 fathers and many more well-brought up sons. For 
 the possible, and I believe probable, good that these 
 letters might do, and also as showing another side of 
 my father's character not brought out in the bio- 
 
INTRODUCTORY SKETCH 3 
 
 graphy or in the speeches, I have decided to lay aside 
 personal feelings, run the risk of caustic criticism, and 
 publish these letters and an introductory explanation, 
 for better or for worse. 
 
 As to Mr. Dana's dealing with permanent principles, 
 a late eminent jurist, who had known him as a student 
 in the Harvard Law School, said that Dana thought 
 out his moot-court cases on fundamental principles, 
 and sought the underlying philosophy of jurispru- 
 dence. My father told me that, in a case of doubtful 
 law, he first made himself master of all the facts, then 
 worked out the reasoning that should apply, and last 
 of all looked up the precedents, and in the light of 
 the principles he had evolved, could best weigh and 
 arrange the authorities. By pursuing a contrary 
 course, he said, and going first to the cases and text- 
 books, one would become lost in a thicket of under- 
 growth. 
 
 By this mental process, he, when twenty-nine years 
 of age, worked out the true rule of law regarding the 
 burden of proof in criminal trials, in the Peter York 
 case. 1 Peter York was charged with murder, and Mr. 
 Dana defended him. Mr. Dana urged that upon the 
 government lay the burden of proving, beyond rea- 
 sonable doubt, the malice aforethought as well as the 
 mere killing. The language employed in the legal 
 text-books and in the published judicial opinions was 
 opposed to Mr. Dana's contention, and the majority 
 of the Massachusetts Supreme Court then decided 
 against him; but Mr. Dana's view has prevailed, as 
 will be told more fully farther on in this sketch, and is 
 now the law of the land. 
 
 In 1854 the law of collision at sea as between a 
 
 * 9 Metcalf, 89 (1845). 
 
4 RICHARD HENRY DANA, JR. 
 
 sailing vessel and a steamer had been settled, as it 
 was supposed, by a decision of the celebrated English 
 Admiralty judge. Dr. Lushington. Mr. Dana, in the 
 case of the Osprey, before Judge Sprague, took the 
 stand that Dr. Lushington's opinion was wrong. He 
 not only had the English decision overturned and won 
 his case in an American court, but his rationale is now 
 the established law of the high seas for all nations. 
 
 In the celebrated Prize Causes during the Civil 
 War, there seemed to be a dilemma. Without the 
 power to stop commerce of neutrals with the Southern 
 Confederacy, the war would be indefinitely protracted. 
 The usually accepted definitions of the law of prize 
 and blockade, neutrals, and belligerents, riots, war, 
 and insurrection, seemed to make it impossible to 
 condemn blockade-runners as prizes without acknow- 
 ledging the Confederacy as an independent nation. 
 This would have given the Confederacy great advan- 
 tages in dealing with foreign powers, to say nothing 
 of its being inconsistent with our denial of a consti- 
 tutional right of secession. Thus arose a crisis in the 
 Civil War as real as the battle of Gettysburg. The 
 Justices of the Supreme Court of the United States, 
 though feeling that the power of blockade ought to be 
 justified, were unable to satisfy themselves on what 
 legal grounds it could be sustained. Mr. Dana argued 
 for the power of blockade. Judge Grier, who wrote 
 the opinion of the court, unanimously sustaining Mr. 
 Dana's contentions, afterwards said that Mr. Dana 
 had cleared up all their doubts. In the note to the 
 Amy Warwick and " Enemy 's Territory " will be found 
 w^hat was said of this argument by the court and mem- 
 bers of the bar who were present, and an explanation 
 of the points involved; but it is enough for the present 
 
INTRODUCTORY SKETCH 5 
 
 to say that Mr. Dana developed "the philosophy of 
 the law of prize" by excavating to the very founda- 
 tion of that law, and showing, when uncovered, its 
 real simplicity and unity, and that the confusion had 
 existed chiefly in the definitions under which the true 
 principles had lain concealed. 
 
 Mr. Dana's speech in the Massachusetts Legisla- 
 ture on the usury laws ^ is another illustration of his 
 power of thinking out on broad principles. He was 
 not a profound student of political economy, though 
 somewhat of a reader and ponderer on it, and yet, to 
 use Mr. Adams's words in the Life,^ this speech is 
 "one of the most admirable presentations of the argu- 
 ment against usury laws which has ever been made," 
 and "it has since been printed repeatedly, and is still 
 one of the documents in use wherever the question 
 ... is under discussion." 
 
 At the close of the Civil War arose another di- 
 lemma. That was how we could preserve the fruits 
 of the war without acknowledging the right of seces- 
 sion. Mr. Dana, in his speech on the "Grasp of War," 
 put the situation on what seems to be the most philo- 
 sophical ground. 3 In that speech he also advocated 
 an educational and property qualification for negro 
 voters, a measure which it is now generally believed 
 would have been the sane, wise course to have 
 adopted. It pleased neither extreme at the time, 
 however, and it was the extremists, both North and 
 South, that had the majorities in those times of 
 excited feeling. 
 
 In the debates in the Massachusetts Constitutional 
 Convention in 1853, he went "quite into the meta- 
 
 ^ See vost, p. 117. ^ Vol. ii, p. 337. 
 
 ^ See notes to "Grasp of War" speech. 
 
6 RICHARD HENRY DANA, JR. 
 
 physics of a constitutional government." Mr. Rufus 
 Choate said of Mr. Dana's speech on the Judiciary, 
 "It is philosophical, affecting, brilliant, logical, every- 
 thing." 
 
 Besides this power of original thought, is his power 
 of logical and orderly arrangement, with a sense of the 
 picturesque and striking. This we see carried out not 
 only in his "Two Years Before the Mast," and in his 
 journals of travel, in his account of the court-martial 
 of Commander Mackenzie for hanging Spencer and 
 others, printed in the Life,^ for example, but even in 
 treating of technical and abstruse subjects. As an il- 
 lustration of the latter is his article in the "American 
 Law Review" of 1871 on the "History of Admiralty 
 Jurisdiction in the United States." ^ There the reader 
 is led on to see the steps, one by one, by which the law 
 was developed into a complete and consistent whole, 
 the predicaments into which some of its own early 
 decisions put the vSupreme Court, and the ways taken 
 by that court to extricate itself. The article is some 
 forty pages; too long to reprint in this collection. It 
 shows how a technical subject may be dressed in 
 simple, every-day language, so as to meet the ordinary 
 reader on even terms. This treatise carries one along 
 with an absorbing interest, like that created by a well- 
 constructed detective story. 
 
 I, personally, shall never forget his clear and patient 
 explanation of the rig of sailing vessels, how the square 
 sails were worked in tacking, box-hauling, and the like, 
 or the methods of calculation of position at sea, told 
 while walking the beach or piazza at Manchester. 
 When I was sailing round the Horn in 1879-80, 1 used 
 
 ^ Vol. i, pp. 47-70. 
 
 ^ American Law Review, vol. v, No. 4, July, 1871, pp. 581-621. 
 
INTRODUCTORY SKETCH 7 
 
 to take the observations for latitude and longitude; 
 and I well remember, for example, how, with the 
 picture in mind which he had drawn in words only, I 
 avoided the mistake which the second mate made 
 when passing south of the sun and reversing condi- 
 tions. 
 
 In addition to the natural powers of mind and 
 trained habits of thought, quick observation, and or- 
 derly arrangement, Dana's writings are enriched by a 
 wealth of historical, literary, classical, and philosophi- 
 cal illustration, used, like gestures, with discretion. 
 His rule was to use neither gestures, quotations, nor 
 allusions, unless helpful to the presentation of his sub- 
 ject or required by the occasion; never for show. 
 
 Mr. Dana was born and lived in a veritable garden 
 of literature, where there were great trees, hardy per- 
 ennials, and many sweet annuals, whose memory 
 hardly lasts beyond the seasons they blessed, but 
 whose influence with him was none the less potent. 
 
 To begin with, he was born in one of the "literary 
 families," as Colonel Thomas Wentworth Higginson 
 calls them. His father, Richard Henry Dana, Senior, 
 was a poet and essayist. He was one of the founders 
 of the "North American Review," the first literary 
 magazine in America to last. He lectured on Shake- 
 speare, maintaining, against many authorities of the 
 time, that Shakespeare w^as the greatest poet in the 
 English language. Literary and philosophical discus- 
 sion and criticism formed the staple family talk, as 
 society gossip does in some circles, and reading aloud 
 was the most common entertainment. The elder 
 Dana kept up his varied, voluminous, and critical 
 study until the last week of his long life of over ninety- 
 one years, and my father, even after his marriage and 
 
8 RICHARD HENRY DANA, JR. 
 
 in the busiest parts of his hfe, was a frequent caller at 
 ''Chestnut Street" or visitor at the "Shore," as he 
 named the homes of my grandfather in Boston and at 
 Manchester-by-the-Sea. 
 
 The elder Edmund T. Dana, his father's brother, 
 was a delightful talker, humorist, traveler, and reader, 
 whose literary judgment was much sought after. He 
 greatly resembled, so Mr. Charles Eliot Norton said, 
 our delightful John Holmes. This Edmund T. Dana, 
 Senior, had listened to many great Parliamentary 
 speeches and debates of his generation. He had talked 
 with authors and painters in the England of his day, 
 and is said to have had remarkable powders of imita- 
 tion and narration. 1 
 
 Mr. Dana's aunt. Miss Martha Dana, had, in 1830, 
 when Dana was fifteen years old, married Washington 
 Allston, whose prose and verse were as remarkable as 
 his painting. Allston was a personal friend of Samuel 
 Taylor Coleridge, Wordsworth, Washington Irving, 
 Verplanck, Sir Thomas Lawrence, Collins, West, 
 Leslie, Hazlitt, Charles Lamb, Turner, Thorwaldsen 
 and other ^ painters and authors of, or frequenting, 
 
 ^ Some journal entries of conversations with this "Uncle Edmund" 
 are appended to this sketch. 
 
 ^ It may be suggested that I should have included Keats, Shelley, and 
 Byron. Sweetser, in his Washington Allston, quotes Vanderlyn as telling 
 how Allston frequented the famous Cafe Greco in Rome with Turner 
 and Fenimore Cooper in 1805, and adds, "There, too, were to be seen 
 Shelley, Keats, and Byron." This is a mistake if it means they were to 
 be seen there in 1805, the only year Allston was in Rome, for Shelley was 
 born in 1792 and would have been but thirteen years old, and did not 
 leave England for Italy until 1818; Keats was born in 1795, and was but 
 ten years old in 1805, and set sail for Italy in 1820; and Byron's first 
 trip to Italy was in 1809. Allston may have met them in England before 
 he returned to America in 1818, but of this we have no record. 
 
y^c^. ^c^^i^ 
 
 J'/7S> -W43 
 
INTRODUCTORY SKETCH 9 
 
 the old world. He sent and received letters from 
 some of them while he resided in Cambridge. All this 
 made such men seem real, while Allston's charm, so 
 fascinating to his associates, made a young man like 
 his nephew, Dana, fall in love with the humanities. 
 "All my childish notions of Europe," writes Mr. 
 Dana, on the death of his Uncle Edmund in 1859, 
 *'were derived from him and Mr. Allston and my 
 Uncle Francis. From them I heard of Pitt and Fox, 
 of Nelson, of Mrs. Siddons, John Philip Kemble, 
 Coleridge and Wordsworth and the painters. At his 
 room, on the green, in the old Trowbridge home, Ned 
 and I used to spend evenings listening to him and 
 Allston and such chance visitors as gathered there." 
 
 Miss Charlotte Dana, my father's elder sister, was 
 a woman of remarkable literary and philosophical 
 mind, wuth rare musical taste and discrimination; and 
 his brother, Edmund, first scholar of his class at Bur- 
 lington College, Vermont, a student for many years at 
 Heidelberg University in Germany, where he got a 
 doctor's degree " summa cum laude," and an accom- 
 plished gentleman, was one who made a deep impres- 
 sion on all who met him, for his varied acquirements 
 and keen powers of mind. 
 
 In that family life there was also an abundance of 
 wit, laughter, fun, humor, to offset the more serious 
 side of literature and art. 
 
 Such was the immediate family group; but beyond 
 was the greater part of this remarkable literary garden 
 of which I have spoken. To any one caring enough in 
 literature to take this book in hand, and wanting to 
 know the kind of flora that flourished there, it suffices 
 merely to name as friends or acquaintances of Mr. 
 Dana, whom he met often in Cambridge, or Boston 
 
10 RICHARD HENRY DANA, JR. 
 
 and the other suburbs of Cambridge, Longfellow and 
 his wife, Mr. and Mrs. James Russell Lowell, Emer- 
 son, Oliver Wendell Holmes, John Holmes, the Nor- 
 tons, Wheatons, Willards, Greenoughs, Charles and 
 George Sumner, Bancroft, Prescott, Sparks, Palfrey, 
 Ticknor, the Quincys, the Adamses, Everett, William 
 Ellery Channing, Professor E. T. Channing, Harri- 
 son Gray Otis, Thomas W. Higginson, the "young 
 Professors Child, Lane, Cooke, and Gould," Agassiz, 
 Rufus Choate, Dr. S. G. and Mrs. Julia Ward Howe, 
 Mr, and Mrs. James T. Fields, Leonard Woods, Wil- 
 liam M. Evarts, Senator and Judge Hoar, Hillard, 
 Henry James, Senior, Motley, and not a few others. 
 
 Mr. Dana not only lived in such a garden, with its 
 inevitable influence on any one with literary instincts 
 and aspirations, but he assiduously cultivated his 
 own plot in that garden. When going to boarding- 
 school, not being quite nine years of age, his father 
 gave him the parting words, "Put your bones to it, 
 my boy." This instruction he seems to have carried 
 out in his school-work, though he says he indulged in 
 no little day-dreaming during his one year in this 
 particular boarding-school, chiefly because he had 
 been so well prepared, and there was so little work to 
 occupy the school-hours. 
 
 He seems to have preferred those teachers who 
 enforced "system and discipline" as more likely to 
 "insure regular and vigorous study," and as on the 
 whole more valuable "though not so popular with us 
 nor perhaps so elevated in the habits of thought as 
 Mr. Ralph Waldo Emerson," who was his teacher at 
 the Cambridge school for a short time. While this 
 shows Dana's estimation, even when a boy, of hard 
 work, none the less did Emerson's "elevated habits 
 
INTRODUCTORY SKETCH 11 
 
 of thought" undoubtedly have then- influence for 
 good. 
 
 While a school-boy of scarcely ten, occurred the 
 fiftieth anniversary of Lexington and Concord and 
 Bunker Hill, with the great speeches of Webster and 
 Everett, with Lafayette's triumphal progress through 
 the country, and the popular enthusiasm aroused. 
 These things, he wrote, "made us all ardent patriots," 
 and led him to read Thacher's Journal, Heath's 
 "Memoirs of the Revolution," and "short lives of 
 Washington and Lafayette." 
 
 I must not close his boyhood work without noting 
 what he says of the day-school which he and so many 
 other dwellers in the literary garden attended. 
 
 "There is one feature of the school at Cambridge 
 which I always recur to with great pleasure. This 
 is the uncommon gentlemanly spirit that prevailed 
 among the scholars. We were all, with never more 
 than one or two exceptions, the sons of educated men, 
 lived at our own homes, and being so much connected 
 with the University, saw a good deal of literary society 
 and became familiar with much higher style of conver- 
 sation and range of topics than boys usually are. The 
 profanity, vulgar and indecent language so common 
 among school-boys was almost unknown among us 
 ... a high sense of honor and a certain pride of per- 
 sonal character was the esprit de corps. . . . Topics of 
 conversation also among the boys were much more 
 select and improving than I ever knew at any other 
 school, and even more so than with most college 
 students." 
 
 Who can tell how much this ''esprit de corps" and 
 these "topics of conversation" in the Cambridge 
 school, for which the boys themselves were respon- 
 
12 RICHARD HENRY DANA, JR. 
 
 sible, had to do with the wonderful growths that 
 followed in the literary garden! If these are some of 
 the causes, then let us exclaim, in a more primitive 
 sense perhaps than the words were used by Juvenal: 
 "Maxima debetur pueris reverentia." Perhaps it was 
 his experience as instructor of these very youths that 
 suggested to Emerson his oft-quoted remark, "Send 
 your son to school and the boys will teach him." 
 
 Mr. Dana was brought up, also, to be manly and 
 self-reliant as a boy. His father, though naturally 
 of a foreboding cast of mind, concealed his fears from 
 his son and encouraged him to run all the risks, or- 
 dinary and extraordinary, of boys' sports. Let me 
 give an illustration. Young Dana and his boy-friends 
 were in the habit of swimming in the Charles River, 
 with its treacherous bottom and sweeping tides. One 
 of his companions was there drowned. A few days 
 after, he asked his father if he should go in swimming 
 as usual. His father said, "Why not.^^" Off went 
 Richard; but his father, in his anxiety, walked the 
 floor of his study back and forth until his son returned, 
 though of this his son never heard a word until long 
 after he had grown to manhood. 
 
 In college Dana immediately took high rank in his 
 class. He returned from his two years before the mast 
 *'hungry for literature," and from then on, he not 
 only stood first, but had "the highest marks that were 
 given out in every branch of study." He took the 
 Bowdoin prize for English prose composition and first 
 Boylston prize in elocution. 
 
 Of his early college days, before going to sea, he 
 says in his journal, written ten years later: "Having 
 very strong eyes, I usually learned my morning lesson 
 by candle-light before breakfast, and gave my even- 
 
INTRODUCTORY SKETCH 13 
 
 ings to general reading, frequently sitting up until 
 past midnight. Croker's edition of Boswell's 'Life of 
 Johnson' and Carlyle's 'Life of Schiller' I remember 
 as among the books I dispatched during the winter." 
 
 In the vacation of his sophomore year, he read, 
 among other books, Johnson's "Lives of the Poets." 
 In the Law School, as he put it, "We were placed in 
 a library under learned, honorable, and gentlemanly 
 instructors [the chief of whom were Judge Story and 
 Professor Greenleaf], and invited to pursue the study 
 of jurisprudence as a system of philosophy," — and 
 in this pursuit he took a high stand. There was no 
 rank list in the Law School of those days, but he is 
 said to have held his own among such stimulating 
 opponents as his classmates, George Bemis, William 
 Davis of Plymouth, Judge Hoar, and William M. 
 Evarts. 
 
 The following anecdote, taken from Mr. Dana's 
 journal, shows Judge Story's estimate of how pro- 
 fitable the study in the Law School had been to his 
 pupil : — 
 
 "In the autumn of 1839, I made an argument be- 
 fore Judge Story upon the subject of the effect of 
 a judgment between creditors and accommodation 
 indorsers, which he requested me to write out for him 
 in full that he might take it to Washington with him 
 in the winter and show it to the judges of the Supreme 
 Court as a specimen of what could be done upon a two 
 years' education at a law school. I did so and upon 
 his return he brought me very gratifying compliments 
 from the judges and especially from Judge McLean, 
 in whose circuit the question had arisen, but had not 
 been argued." 
 
 While in the Law School, in furtherance of his edu- 
 
14 RICHARD HENRY DANA, JR. 
 
 cation, and to aid him financially as well, he taught 
 English and elocution at Harvard as assistant to 
 Professor Edward Tyrrel Channing. Under the influ- 
 ence of his father and Professor Channing, and also, 
 doubtless, from choice, his style was simple, and he 
 preferred the short, Anglo-Saxon words. A commit- 
 tee of the American oculists, recently preparing tests 
 for eyes, sought out passages of shortest words and 
 clearest style, and finding these in "Two Years Before 
 the Mast," wrote for permission to use extracts. This 
 was granted, and now, at the oculists' and opticians' 
 throughout the United States, one finds, put before 
 him in neat frames, in type of varied size, these ex- 
 tracts from Dana's sea narrative.^ During the last 
 year in college and two and a half years in the Law 
 School, he made a point of spending "one evening 
 a week" with Washington Allston. So much for his 
 early preparation of his own plot in this remarkable 
 garden. 
 
 But Dana did not stop with the spring digging, 
 fertilizing and seeding, as so many do, and then let 
 matters alone; but all through his career he kept up 
 his literary gardening. In the Life Mr. Adams gives 
 a picture of the killing work Mr. Dana did, and the 
 want of variety, entertainment, and diversion, that is 
 as pathetic as it is true. Mr. Adams ends a sketch of 
 a day as follows : — 
 
 "By and by, when the dreary evening meal — in 
 no way dreary to him — was disposed of, and the even- 
 ing paper read and the talk with the children over, 
 
 ^ Since the publication of the Biography, Two Years Before the Mast 
 has been included in a collection of the World's Greatest Books (1901), 
 and also in the Harvard Classics, edited by ex-President Charles W. Eliot 
 (1910). 
 
INTRODUCTORY SKETCH 15 
 
 Dana would disappear into his library, the green bag 
 would be emptied of its papers, and the lawyer would 
 be immersed in a study of his case until bedtime." 
 
 As to the detail of the evening paper, my father 
 told me he never read an evening paper except dur- 
 ing some critical periods of the Civil War, urging 
 on me that one paper a day was enough in the economy 
 of time. There is, however, an omission of real im- 
 portance from this picture of the evening habits, 
 and that is the hour, or hour and a half, before bed, 
 when Mr. Dana put his law papers back into the 
 green bag, changed from lawyer to student, and took 
 up general reading. He explained to me how much 
 could be accomplished by this one or two hours in 
 twenty -four, if persisted in. In this way, he told me, 
 taking notes and reviewing the previous night's 
 portion, he read the whole of Grote's Greece, twelve 
 volumes, Mitford's Greece, Gibbon's Rome, Hal- 
 lam's Middle Ages and Constitutional History, 
 Hume's England (unabridged), and, as he said, 
 "to get the Catholic view-point," Lingard's History 
 of England, then Macaulay's England, Burke's 
 speeches and essays, much of which he read and re- 
 read, learning passages by heart, and Campbell's 
 "Lives of the Chief Justices." He read many of 
 Erskine's and Webster's speeches and also some Euro- 
 pean history from the Middle Ages on, and I do not 
 remember what else. He told me he usually read a 
 little Latin, and he took up his French again at one 
 period in these evening hours, both reading and 
 writing, supplementing this at the time with French 
 conversation at the end of an afternoon or two a 
 week. In 1852 he writes in his journal of the plan of 
 cultivation as he was then carrying it on, as follows: 
 
16 RICHARD HENRY DANA, JR. 
 
 " My rule is to write a little Latin every Tuesday, 
 Thursday, and Saturday evening, and to read a little 
 French every other evening, and then to read in my 
 course of History or Law." 
 
 On Sundays, after the midday meal of cold roast 
 beef, which, under the ameliorating rules of Sunday 
 observance, later became hot roast beef, he retired 
 into his library for some turns of the clock's long 
 hand, before the children's hour with its questioning 
 and home-teaching; and there, excepting for the 
 afternoon church in the earlier days, and a walk in 
 the fresh air, besides his study of the Bible and com- 
 mentaries on it, the New Testament in Greek, and 
 purely religious works, he re-read his Milton's poems, 
 also "finished Milton's prose," and read, for ex- 
 ample, Coleridge's philosophy and poetry, Words- 
 worth, Southey, and other "Lake" poets, Spenser's 
 "Faerie Queene," Bishop Berkeley, Adam Smith, 
 Jeremy Taylor, Confessions of St. Augustine, "Prac- 
 tical View" and speeches of William Wilberforce, 
 and speeches of his son, the Bishop, speeches of 
 Gladstone, the Bishop of Oxford and other great par- 
 liamentarians, Life of Henry Martyn, "Double Wit- 
 ness for the Church," Newman, Pusey, Bacon's "No- 
 vum Organum," Tennyson, learning some whole 
 poems by heart and passages of others, which he some- 
 times repeated to us children, to our great delight, 
 at home or in the walks in the woods or on the smooth 
 sand beach at "beloved" Manchester. 
 
 It is true, as told by Mr. Adams in the Life, that 
 in 1856 he had not read, nor did he at the time care 
 to read, "Henry Esmond." He had read "Vanity 
 Fair," and from that judged Thackeray to be a cynic. 
 He had seen a bad effect of "Vanity Fair" on some 
 
INTRODUCTORY SKETCH 17 
 
 young people. He advised me not to read it while in 
 school. Later he read "Pendennis," and was so 
 fascinated that he read it right over again to his wife; 
 and later "The Newcomes" and the "Paris Sketch- 
 Book"; and ultimately he changed his view of 
 Thackeray. 
 
 In going over his journals and a few of his letters, 
 I find he speaks of reading, besides some of the above, 
 Romilly's Memoirs,^ Ruskin, "Guesses at Truth," 
 by Augustus and Charles Hare, "School-Days at 
 Rugby," "The Heir of Redclyffe," Cowper's Odys- 
 sey, "Friends in Council," "Broad Stone of Hon- 
 our," Adams's "Social Compact," "Don Quixote," 
 much of Dickens, Bulwer, George Eliot, Cooper, 
 Byron, Gray, Pope, Burns, Cowper, Scott, both 
 poems and prose, Keble, the "Judicious" Hooker, 
 Hazlitt's "Table Talk," and the "Spectator," and at 
 times he writes of re-reading Shakespeare on his short 
 journeys. 
 
 This is a meagre list, to be sure, but it is not fair 
 to limit the catalogue of his mental library by the 
 journal entries. Several times he speaks of "read- 
 ing," without naming book or author. "My mode 
 of life" one summer in town, for example, he says, 
 has been "as follows: Rise at six, take a swim in the 
 back bay at Braman's, and read and write till half- 
 past eight." The journal has lapses, first of weeks, 
 then of months, and later of half years, and ceases 
 altogether in 1859. We know, for example, he read, 
 re-read, and took the greatest delight in Smith's 
 "Rejected Addresses," but no mention of them ap- 
 pears of record. As another illustration of the im- 
 perfection of this kind of cataloguing, he nowhere 
 ^ Sir Samuel Romilly, three volumes. 
 
18 RICHx\RD HENRY DANA, JR. 
 
 speaks of reading Bolingbroke or Warburton, but 
 evidently must have, from the following, taken from 
 the journal account of his first visit to Washington 
 in 1844: — 
 
 "The (U. S.) Supreme Court was still in and I 
 heard parts of arguments from Choate, Daniel Lord, 
 and Crittenden and a little ex tempore classical en- 
 counter between Judge Story and Choate, relating 
 to a quotation from Pope, as interpreted by Warbur- 
 ton against the imputation of Bolingbroke. Choate 
 said, 'The infidel sentiment the poet was made to 
 utter.' Judge Story broke in with an expression in 
 defense of Pope from the charge of infidelity, which 
 Choate explained by referring to his own phrase, 
 ^was made to utter,' meaning what Bolingbroke had 
 said, and they both simultaneously referred to War- 
 burton's explanation. This little episode was quite 
 characteristic and agreeable. I doubt if Kentucky 
 Crittenden had ever heard of Warburton, though he 
 might of Pope and Bolingbroke." 
 
 Mr. Dana's delight in literature is constantly man- 
 ifested in his journal. When coming back from short 
 outings and settling down to work in his ofiice, he 
 sometimes wonders how it might be if he had a com- 
 petence and leisure, though concluding that perhaps 
 he is, after all, happier in hard work. These Elysian 
 dreams, it is worth noting, include "devoting" him- 
 self to "literature." In the autumn of 1853, he says: 
 "I am again established in my own house. . . . 
 If I can have a winter of successful work in my office 
 and in my library, with my delightful course of study 
 before me, with all my troubles, shall I not be per- 
 fectly happy?" 
 
 Showing how such things interested him, we may 
 
INTRODUCTORY SKETCH 19 
 
 note that, in a very busy period, when he made but 
 three entries in his journal in three months, one of 
 them is as follows, November 27, 1849: — 
 
 "Sunday Ev. Spent an hour at Uncle Edmund's. 
 Talking of Boswell's Johnson, he said that when he 
 was in England, visiting at his uncle's (Rev. Edmund 
 Dana of Wroxeter, Salop), he met a gentleman by 
 the name of Lockhart Johnstone, a near relative of 
 Mrs. Dana's, who was a daughter of Lord Kinnaird 
 and niece of Sir W. Johnstone. Mr. Johnstone had 
 been intimate with Dr. Parr,^ and some time in his 
 house. He said Dr. P. told him that Boswell used to 
 make a minute of Dr. J.'s conversation each night 
 when he got home, and take it to Johnson the next 
 morning, read it to him and have it corrected. Uncle 
 E. says he asked Mr. Johnstone if this could be relied 
 upon, and Mr. J. told him it might be, for he had 
 it from Parr himself, who was friendly to Johnson." 
 
 Some of his daughters, after "finishing" their edu- 
 cation, as was the too common phrase, joined a reading 
 club of friends, taking up serious history, philosophy, 
 and literature. They were surprised to find that their 
 busy lawyer father not only knew a great deal of 
 what they were studying, but was able and willing 
 to suggest and explain. While it is clear that his ex- 
 acting profession curtailed his general reading, yet, 
 with such tastes and enthusiasm, being a rapid reader, 
 hearing stimulating literary talk, and with books 
 at hand, he managed to be, or perhaps I had better 
 say, could hardly be kept from being, a remarkably 
 well-read man among well-educated persons. 
 
 In philosophy, he studied metaphysics and moral 
 and intellectual philosophy in college, and planned at 
 ^ Samuel Parr, LL.D., 1747-1825. 
 
20 RICHARD HENRY DANA, JR. 
 
 one time to pursue these studies in a post-graduate 
 course with Professor James Marsh of Burlington, so 
 great was his interest in them. Besides reading those 
 philosophical works I have previously mentioned, he 
 in later days discussed Spenser, Comte, Darwin, Tyn- 
 dall, Huxley, Emerson, ^ and some of the modern 
 German philosophers, with his father and brother 
 Edmund, who, with their leisure, had time to read 
 in full what he, with his quick mind, took in only in 
 talks or from essays, short passages and criticisms. 
 Comte, for example, was one of the familiar names 
 in the Chestnut Street talks, with his ideas on hu- 
 manity as the "deus," and "the impluse to serve 
 humanity" as "religion." Mr. Dana's friend and 
 former partner, Mr. Francis E. Parker,! have heard 
 discoursing on modern philosophy with my father. 
 Any philosophy, however, which seemed to militate 
 against Christianity was read with a critical eye, not 
 because he closed his mind to truth, but because he 
 queried whether every new philosophy, however plaus- 
 ible or convincing it might seem, was in reality the 
 truth. As he said to me, in substance, one generation or 
 decade has been carried away with a system that the 
 next modifies or refutes altogether. Even in nature, 
 what the scientist recently ridiculed as impossible 
 is the commonplace of to-day. He quoted Professor 
 Cooke as saying he had had to change his fundamental 
 ideas of chemistry some twenty times. He believed 
 there were mysteries behind the phenomena of na- 
 ture not dreamed of by the physicists. If, for exam- 
 ple, matter is but "centres of force," then, said he, 
 matter is non-material, as we think of the material, 
 
 ^ He writes in his journal of going out of town to hear Emerson 
 lecture. 
 
^^^z ^- 
 
 r, av :b:'.9 
 
INTRODUCTORY SKETCH 21 
 
 and comes pretty near being the creation of an om- 
 nipotent spiritual will. This view of "centres of 
 force" is coming prominently forward again, and we 
 are told the marvelous power of these forces is some- 
 thing almost beyond belief. We do not know what a 
 law of nature is. The usual definition, "an observed 
 sequence of phenomena," explains nothing. Some 
 German philosophers, he remarked, doubted the uni- 
 versality of the laws of time and space. Our reasoning 
 on infinity brings us to contradictions. He believed 
 Coleridge's idea, that human reason is limited perhaps 
 wholly to the scope of its experience. If, even in the 
 region of experience, Mr. Dana added, it cannot ex- 
 plain such familiar things as matter, or the laws of 
 nature, oreven what electricity is, or chemical affinity, 
 how can the human mind be trusted, then, in its theories 
 of the great cause of all, of the supernatural and of 
 eternal life? The one thing, he said, that has lasted 
 through all this change, is religion. Men have changed 
 their philosophical views of matters religious, but 
 religion itself has outlasted all else; therefore let us 
 not easily throw it aside at the bidding of the last 
 thinker. Nor would natural religion be enough. So- 
 cial and economic conditions may lead to certain 
 utilitarian morals; but the idea that "honesty is the 
 best policy," for example, probably never made any 
 man really honest in matters not likely to be found 
 out.^ He believed it was only the love of a personal 
 God that would influence men to real goodness, and 
 that the highest love of God was aroused in human 
 
 ^ There is found, in one of Mr. Dana's public addresses, the following: 
 "Aristotle, the greatest of all reasoners, says the attempt to apply geo- 
 metrical rules to moral reasoning leads to the most dangerous of all soph- 
 istries." 
 
m RICHARD HENRY DANA, JR. 
 
 beings through the manifestation of God in the Son 
 of Man. 
 
 Berkeley's philosophy, so like that of the post- 
 Kantian idealists, was, he told me, a comfort to him. 
 He named the street in Cambridge, where he built 
 his house, after that Lord Bishop philosopher. Had 
 he lived to read "Robert Elsmere," what would have 
 been his comment on the words of Henry Gray, 
 "God is not wisely trusted when declared unintel- 
 ligible." "Such honor rooted in dishonor stands; 
 such faith unfaithful makes us falsely true." "God 
 is forever reason; and His communication, His reve- 
 lation is reason".'^ I believe it would have been some- 
 thing like this, judging from his many talks on kin- 
 dred subjects. "If by * unintelligible ' is meant that 
 human reason, limited by concrete experience of 
 finite things, is expected to reject what it cannot 
 comprehend of the infinite spirit, then I should ask 
 how, a priori, could such intelligence be expected, 
 unless we limit the immortal mortalwise, the infinite 
 finitely, and the great first creator creaturewise ? 
 If, however, it is conceded that our faith may tran- 
 scend experience, may apprehend though not com- 
 prehend the infinite, but that it should not contradict 
 reason, then these words of Gray's I adopt." 
 
 These statements may not meet acceptance at the 
 hands of modern philosophers; but what statement 
 is accepted.^ It is somewhat gratifying to those in 
 the outer courts to hear that there is no complete 
 agreement among those in the inner temple. At a 
 recent after-dinner address, the late Professor James 
 said of the Philosophical Department at Harvard, 
 "We are united because each thinks the others are 
 cultivating the soil from which truth may spring. 
 
INTRODUCTORY SKETCH 23 
 
 but not because we all agree. We do not disagree, 
 chiefly because none of us understand what the others 
 are saying." 
 
 In private talks with me in 1875 to 1878, he ex- 
 pressed, as possible, views of religion which at that 
 time would have been considered as "advanced,'* 
 but such as are now generally held, or at least al- 
 lowable, by thinkers of his church in America and 
 England. To sum up, Mr. Dana, in his religious 
 opinion, was conservative, not easily carried away 
 by new views, but open-minded, fair, and, above all, 
 not dogmatic. 
 
 In political economy, I remember my astonishment, 
 while an undergraduate, as he told me, during a walk 
 over the West Boston Bridge, that, though a Repub- 
 lican, he believed that the best authorities were 
 against a high protective tariff. He said the party 
 had become committed to protection as a method of 
 raising funds during the war, and to offset the high 
 internal revenue taxes on certain home products. 
 Later, as I studied political economy more fully, I 
 came to appreciate his position. 
 
 While in college I took several courses in philoso- 
 phy and did some collateral reading in this branch. 
 I was surprised, in talking with my father, to find 
 how much he knew of what I thought was beyond 
 his reading. Later in life, he became more tolerant 
 of some of the new philosophical ideas as they became 
 better understood, and accepted them. As to accept- 
 ing them, Mr. Dana did not, like the late Philip 
 Henry Goss, F. R. S., in his "Omphalos," believe 
 that the earth, with its fossils and glacial marks, 
 was created just as it is by one catastrophic act in a 
 day of twenty-four hours. He admitted long peri- 
 
24 RICHARD HENRY DANA, JR. 
 
 ods of development and evolution, but he believed 
 it was evolution by successive creations, not by nat- 
 ural selection alone. Indeed, as it now appears, nat- 
 ural selection is not the final word, nor the whole 
 explanation. Whatever the ultimate conclusion, 
 there are at least sudden developments, now called 
 " mutations," which are preserved, modified or lost 
 by natural selection, but which are not caused by it. 
 
 As to Mr. Dana's attitude toward Darwinism, we 
 must remember that Agassiz had not accepted that 
 when he died in 1874, and Mr. Dana survived Agas- 
 siz less than eight years. In a letter to one of his 
 married daughters, written from Rome, eight months 
 before his own death, speaking of the poetry and 
 romance inseparably connected with that city, he 
 says, with a touch of humor: "Thank God, imagi- 
 nation and sentiment are still the strongest forces 
 we have to deal with, notwithstanding the attempt 
 of scientists to debase the nature of man." 
 
 In biography Mr. Dana was much interested, and, 
 of course, in all American history. He kept scrap- 
 books and bound volumes of pamphlets, in which 
 all the best current speeches, arguments, party plat- 
 forms, and the like were preserved, which enabled 
 him to make immediate reference to them in prepar- 
 ing his public speeches and addresses. He belonged 
 to a "Book Club" in Cambridge, was an original 
 member and constant attendant of the celebrated 
 Saturday Club ^ even before it was organized and 
 named, and was sometimes present at the Longfellow 
 Dante readings, out of which grew the famous Dante 
 Society. 
 
 As a part of his literary work after beginning his 
 
 ' See Adams's Life, vol. ii, pp. 162-170 and 359-360. 
 
INTRODUCTORY SKETCH 25 
 
 law practice, he wrote an account of Professor Ed- 
 ward Tyrrel Channing as introduction for the pub- 
 lished "Lectures," edited Allston's "Sylphs of the 
 Seasons" and "Poems" and "Lectures on Art," and 
 wrote biographical sketches of Major Vinton, of 
 Rev. Leonard Woods, of Judge Wilde, part of Ran- 
 toul's, and others. Mr. Dana's Lyceum lecture, 
 "Sources of Influence," which he delivered so often, 
 is not written out in full, but in part as mere head- 
 notes. In that he took the stand that what we call 
 temperament or character had more to do with a 
 man's influence than his learning. This he illustrated 
 from history, literature, biography, and experience 
 in life.^ He also gave, in various cities from Balti- 
 more to Portland, what he calls his "Sea Lecture," 
 one on "Knowledge is Power," one called "American 
 Loyalty," one on Edmund Burke, and another on 
 "English Contrasts," all of which took him outside 
 of his professional work. None of these latter, how- 
 ever, are in complete form for publication." The 
 "English Contrasts" is of little novelty to-day, as so 
 many people visit England now. If published it 
 would be of interest chiefly as showing the contrasts 
 between the America of 1856 and of 1910. In 1856 
 our railway "depots" were mostly of wood with 
 wooden platforms, a general air of dirt and uncleanli- 
 ness about, with no shrubbery or ornamental grass 
 and flowers. The rails were light, the bridges mostly 
 of wood, grade-crossings were the rule, the cars were 
 noisy and dirty, and the cinders almost unendurable. 
 
 ^ See Adams's Life, vol. i, pp. 42-45 and 114. 
 
 ^ See Bibliography at end of this volume for various published 
 speeches, addresses, letters, political " resolutions," and lec- 
 tures. 
 
26 RICHARD HENRY DANA, JR. 
 
 There were almost no well-kept private lawns, even 
 in the suburbs, hardly any good architecture, and 
 almost no art. 
 
 As a part of the preparation for his profession, 
 he studied double-entry bookkeeping, and for many 
 years while practicing law, he kept his cash-book, 
 journal, ledger, and day-book, making all the entries 
 and postings himself, footing the columns and making 
 trial balances. Later he simplified his system, keep- 
 ing only check-book, office-ledger, and docket. Even 
 to the end, most of them are in his own handwriting. 
 The early experience in bookkeeping he found most 
 helpful in tracing out the transactions and cross- 
 examining the expert witnesses in some of the bank- 
 ing and business lawsuits. The amount of labor this 
 bookkeeping entailed, while he was in court all day, 
 was enormous; but labor he did not shirk. His were 
 no eight-hour days. 
 
 I can best sum up this cultivation of his own 
 garden-plot by quoting the entry in his journal, made 
 on first taking possession of his study in his new 
 house in Berkeley Street, Cambridge, March 16, 
 1852: "May my private room be consecrated to 
 study and thought, for my own good and the good 
 of my fellow-men." 
 
 I must say a word as to some of the statements 
 in Adams's Life, especially in the chapter of Remi- 
 niscences, as it appeared in the first edition. In a 
 later edition Mr. Adams made important corrections; 
 but it is the first edition that most of Mr. Dana's 
 friends read and that is in most of the libraries. Before 
 proceeding further, however, I want to repeat how 
 deeply Mr. Dana's family are indebted to Mr. Adams 
 for what seems to them the fine way in which he 
 
INTRODUCTORY SKETCH 27 
 
 treated his subject, and how small a part the criticisms 
 here made bear to the admirable whole. 
 
 Mr. Adams's idea that Mr. Dana was "not an 
 especial admirer of Milton"^ came from a letter to 
 his wife, in which he made fun of her great knowledge 
 of that poet. This was really intended as a humorous, 
 indirect compliment, as she could recite pages on 
 pages of Milton's poems, while he knew by heart 
 only short passages or quotations. That he admired 
 Milton as a poet and writer (though not as a theo- 
 logian) is evidenced by the fact that he read the 
 "Paradise Lost" tw^ice, and the "Paradise Regained" 
 and "Samson Agonistes" once with me in our too 
 brief Sunday afternoon hours while I was in college 
 and the Law School, and the "Hymn of the Nativity" 
 to us all nearly every Christmas Eve; and also by the 
 marginal marks in the three-volume edition of Mil- 
 ton's Poems he bought while he was in the Law 
 School. He had to rebind it in the seventies. It had 
 nearly come apart from frequent use. 
 
 As to his "not caring for Tennyson," Mr. Adams 
 inferred that, because, in 1856, returning from his 
 delightful trip in England, he said he had seen alP 
 those he cared to see, and yet he did not see Tenny- 
 son.^ Such words should not be taken too literally. 
 The remark was an ebullition of enthusiasm, not a 
 mathematical census of his admirations, based on 
 a count of noses. Perhaps it may be true that he did 
 not particularly care to see Tennyson personally. 
 He was aware of Tennyson's dislike of strangers, and 
 especially of Americans, and I remember my father 
 said to me, and Mr. Lowell confirmed it, when I was 
 
 ^ Life, vol. ii, p. 151. ^ His journal says "almost all." 
 
 ^ Life, vol. ii, p. 151. 
 
28 RICHARD HENRY DANA, JR. 
 
 about to visit England, "You had better know Ten- 
 nyson from his works." A distinguished American 
 author, a friend of my father's, told me of Tenny- 
 son's morbid state of mind on the subject of strangers. 
 While walking in the garden at Farringford, Isle of 
 Wight, Tennyson pulled him aside and said ear- 
 nestly, "People are looking at me through the hedge," 
 when there was no one to be seen there; and, while 
 on the housetop, looking at the view, Tennyson 
 exclaimed, "There they are, rushing to look at me!" 
 when, in reality, some farm-hands were merely has- 
 tening to shelter from a threatening shower. This 
 was said, too, in the way of complaint, not in a vein 
 of humor. 
 
 As to not seeking out Darwin in 1856, very possibly 
 Mr. Dana would not have had sufficient sympathy 
 with Darwin's views to look him up, even had he been 
 visiting England later. But, though somewhat known 
 among scientists, Darwin had not made his great 
 popular reputation in 1856. His " Origin of Species 
 by Means of Natural Selection" was published in 
 1859, and his "Descent of Man" not until 1871. 
 
 In general, therefore, it may be said that it was 
 through such natural advantages, by means of such 
 preparation in school and college, and such industry 
 all through life, that Mr. Dana was equipped to 
 prepare such an oration as that on Edward Everett 
 with only three weeks' notice; and that he was 
 enabled, for example, in the celebrated case of Dalton 
 V. Dalton, and in many another unpublished legal 
 contest, to cap the wealth of illustration and quota- 
 tion in Rufus Choate's arguments, sometimes turn- 
 ing them against his renowned opponent, or at a 
 moment's notice to give such an address as that on 
 
INTRODUCTORY SKETCH 29 
 
 Mr. Choate's death at the meeting of the Suffolk 
 Bar in 1859. 
 
 As to Mr. Dana's argument in the Dalton case, I 
 have not inchided it among these speeches. It was, 
 according to the custom of those times, long. Then 
 lawyers reiterated the same idea over and over, from 
 every point of view and in varied language, and ham- 
 mered in again and again certain telling phrases, lest 
 one single juror should fail to understand. That was 
 a day when people were used to long prayers, long 
 sermons, and long lectures. Mr. Dana's argument 
 in this case is about 66,000 words, and would make 
 up half a volume in print. It took twelve hours to 
 deliver; but he had to meet, single-handed, the com- 
 bined onslaughts of the two best lawyers of the state, 
 Rufus Choate and Henry F. Durant, and an ex- 
 tremely hostile judge, and had to combat a popular 
 prejudice raised against his client in the press. He 
 had to counteract Choate's ten hours of eloquence. 
 It was a case of divorce against a wife on the scrip- 
 tural ground, and Mr. Dana was for the husband. 
 Mr. Dana's argument^ shows a most delicate han- 
 dling of a cause scmidaleuse. He succeeded in making a 
 deep impression on the public in favor of his client, 
 and won over eleven out of twelve jurors, though 
 he had the burden of proof. The twelfth juror after- 
 wards explained that he was influenced by just one 
 argument of Choate's, and that was : " If you acquit, if 
 you show that a Suffolk jury assures him his surmises 
 are groundless, will it not be he rather than she that 
 will have occasion to bless you for your judgment.^" 
 
 A curious coincidence, the story of which should 
 
 Reprinted in pamphlet form, and to be found in many of the older 
 libraries. 
 
30 RICHARD HENRY DANA, JR. 
 
 not be lost, arose about this case and the twelfth 
 juror's reason of action. Some years after Mr. 
 Choate's death, Mr. Dana was relating to a younger 
 lawyer in his office, Mr. E. N. Hill, the chief incidents 
 of this case. Just then, Mr. Durant, the only other 
 living person connected with its conduct, unexpect- 
 edly called to see Mr. Dana's partner. Mr. Dana then 
 closed the door of his private room so as to talk more 
 freely. He had just reached the end of the narrative, 
 and explained the action of the twelfth juror, when 
 a knock came on his door. He went to it, and there 
 was a man with the dress, voice, and manners of a 
 Westerner. Pie said, "Mr. Dana, you do not recog- 
 nize me; I was one of your clients." To this Mr. 
 Dana replied that he had many clients, his memory 
 for faces was bad on account of near-sightedness, and 
 perhaps, too, his client had changed in appearance. 
 Then, to his astonishment, came out the name, 
 "Dalton." Dalton explained that, after his first dis- 
 appointment, he had become more and more im- 
 pressed with the same point in Mr. Choate's argu- 
 ment that had influenced the twelfth juror; that, 
 failing to get his divorce, he decided to make it up 
 with his wife; that they went to a far western terri- 
 tory where their names were unknown, and there 
 started life anew. They had had several children and 
 lived happily, and he was glad he did not succeed in 
 his lawsuit.^ Does any instance of supposed telepathy, 
 or psychic influence, show a more remarkable coin- 
 cidence than Mr. Dana's narrative and the accidental 
 coming close together of the three chief actors then 
 living.f^ 
 
 Mr. E. N. HiE confirms this story just as I recall hearing it from my 
 father, so this strange coincidence depends not on my memory alone. 
 
INTRODUCTORY SKETCH 31 
 
 There was another cause celebre et scandaleuse in 
 which Mr. Dana took part. In this he defended a 
 then well-known clergyman, "a brilliant orator, who 
 drew like a magnet," from the criminal charge of 
 adultery. This case, too, Mr. Dana handled with the 
 utmost delicacy. The few points on which he had to 
 speak plainly he condensed into a few short sentences. 
 The whole argument was only one fifth of the length 
 of his argument in Dalton v. Dalton. He drove 
 through the government's case like a troop of cavalry 
 on full gallop, and carried the jury and audience 
 along with him. Notwithstanding this unanimous 
 acquittal by the jury, this clergyman's subsequent 
 reputation was such as to cause him to leave Boston 
 for the middle west. "From there he took another 
 flight to" the Pacific coast, where later he was elected 
 Mayor of San Francisco as the candidate of the Sand- 
 Lots party in the days of Denis Kearney, and there 
 he became involved in exciting episodes not necessary 
 to follow out here. Into the defense of this man Mr. 
 Dana had put his best efforts, in the full belief of the 
 innocence of his client, and Mrs. Dana had aided 
 him with some suggestions. To his infinite disgust, 
 after the trial was over and after his client was assured 
 there was no appeal, and that the constitution of 
 Massachusetts protected him from retrial, no matter 
 what new evidence might turn up, he boasted, or as 
 Mr. Dana graphically stated it, "kicked up his heels" 
 and said, "I did it, though!" 
 
 This may lead us to answer the question, so often 
 in the minds, if not on the tongues, of laymen, how 
 a man so high-minded, nay, "lofty-minded" as Mr. 
 Lowell says of him, can practice law when he must 
 have to defend men he knows to be guilty. On this 
 
32 RICHARD HENRY DANA, JR. 
 
 subject my father often spoke somewhat as follows: 
 Every one charged with crime has a constitutional 
 right to have the case proved against him beyond 
 the reasonable doubt of a jury. In taking such a 
 position for a client, however, the lawyer must not 
 mislead the court. His duty is to stand by and see 
 that no inadmissible evidence is produced by the pro- 
 secution, and that the witnesses' statements agree and 
 will bear cross-examination; but to get up a false alibi, 
 for example, is not only not required of a lawyer, but is 
 against his oath of office ^ and a cause for disbarment. 
 Such cases of putting the government to its proofs 
 as a part of the constitutional right of an accused, 
 where there is no other defense, are uncommon, and 
 in a long and varied practice, Mr. Dana never had 
 to do this when he knew that his client was guilty. 
 
 The nearest to such an attitude that he ever took 
 was his defense of the fugitive slave, Anthony Burns. 
 Mr. Dana believed the Fugitive Slave Law, though 
 pronounced constitutional, to be immoral and unjust 
 in many of its provisions, and that a man, free under 
 the laws of Massachusetts, should have the right to 
 compel the claimants to show their proofs and estab- 
 lish them by the strictest rules of law and evidence. 
 Mr. Dana showed that the testimony on identity was 
 contradictory, and argued that they had not made 
 out a case, though he doubtless felt morally sure that 
 
 ^ The oath of office in Massachusetts is as follows: You [Richard H. 
 Dana], solemnly swear that you will do no falsehood nor consent to the 
 doing of any in court; you will not wittingly or willingly promote or sue 
 any false, groundless or unlawful suit, nor give aid or consent to the 
 same; you will delay no man for lucre or malice; but you will conduct 
 yourself in the office of an attorney within the courts according to the 
 best of your knowledge and discretion, and with all good fidelity as well 
 to the courts as your clients. So help you God. 
 
INTRODUCTORY SKETCH 33 
 
 the Anthony Burns he was defending was a runaway 
 slave of that name, and belonged to some one. Then 
 there was also doubt whether Sutton, the claimant 
 in that case, had not really lost his claim by having 
 leased Burns to another. 
 
 Mr. Dana, it is true, had cases when he knew his 
 client had done an act, as in the Peter York case; 
 but his part was only to try and prove by evidence 
 and argument that the act was manslaughter and 
 not murder, or in other cases that it was trespass 
 instead of larceny, or that the defendant was insane, 
 or that criminal intent was lacking, or to show miti- 
 gating circumstances that would reduce the penalty. 
 To illustrate, take the following from his journal 
 under date of December 14, 1842: — 
 
 ''Defended an Irishman named David Keefe for 
 assaulting his wife with intent to kill. The evidence 
 was so strong against him that I only argued the 
 possibility of its not being done with a murderous 
 intent. He was convicted. I satisfied the court that 
 he was a temperate, industrious, and faithful man, and 
 he was sentenced to one year in State Prison." 
 
 But the query sometimes takes another form. If 
 the lawyer does not take a case he knoivs to be wrong, 
 does he not take cases in which he does not believe? 
 First, the personal contact with the client, who per- 
 sists in his innocence, or the justice of his cause, 
 arouses a sympathy and belief that the distant public 
 may not share; indeed, the real danger to the cause 
 of justice comes, in actual practice, from too much 
 sympathy for and belief in one's client, not from too 
 little; but second, and most important, the lawyer 
 has no right to disbelieve a client. He should, it is 
 true, examine his client's statements, for the double 
 
34 RICHARD HENRY DANA, JR. 
 
 purpose of better understanding the case and testing 
 its truth; but it is when the circumstances are most 
 incriminating to an innocent man, when the press 
 and the pubhc are most against him, that he most 
 needs the services of able counsel. A cold-blooded 
 murderer may add to his dark deed the despicable 
 plan of committing it in such a way as to throw sus- 
 picion upon another, to divert attention from him- 
 self. What would happen then if a lawyer should say 
 to the innocent man under such suspicion, "Oh, I 
 have read the papers and believe you are very likely 
 guilty, and therefore I will have nothing to do w^ith 
 you".'^ If one reputable lawyer may do this, then 
 another may, and the disheartened man will be de- 
 prived of all reputable support in the hour of his 
 great stress. No, the lawyer is an officer of the court. 
 Our system of jurisprudence is to have one such 
 officer support one side and another the other, and 
 then to have the jury, with the aid of the judge, make 
 the final decision. 
 
 There is actual danger to justice in disbelieving 
 one's client too readily. There is a celebrated Ver- 
 mont case which my father told somewhat as follows : 
 An old man was missing. He was last seen by his 
 neighbors going into the forest, in the direction where 
 two young men were cutting wood. These young 
 men owed him money which they were unable to 
 repay. He held their notes for this money, and these 
 notes were also missing. Blood was found on the 
 clothes of the young men. Their defense was that the 
 blood was the blood of their dog, killed by the slip- 
 ping of an ax, on the very day the old man had dis- 
 appeared. No one believed their story, not even their 
 own lawyer. He advised them to plead guilty, urging 
 
INTRODUCTORY SKETCH 35 
 
 that perhaps a frank confession, saving the expense 
 to the country of a trial, might give him ground to 
 secure from the governor a commutation of the death 
 sentence to imprisonment for life. But even this 
 failed. The day fixed for the hanging was close at 
 hand when, to their joy, the old man turned up alive. 
 He had wandered way out to Ohio in a dazed condi- 
 tion of mind; and on his person were found the miss- 
 ing notes. Then, for the first time, the public, the 
 governor and their lawyer believed the whole story 
 of the dog and the slipping ax, and then the youths 
 were set free. 
 
 My father further illustrated the same idea by the 
 story of how Charles G. Loring gave up a case in 
 court, because he found his chief witnesses answered 
 falsely on one point. He was on the side of an insur- 
 ance company resisting payment for loss of a vessel 
 which Mr. Loring contended had been scuttled. It 
 turned out afterwards that his case was right, that 
 the main story was true. The vessel when raised was 
 found with the holes bored in her bottom ; but, sailor- 
 like, the chief witness had tried to support the truth 
 by some "collateral lying." 
 
 I had somewhat the same experience in principle, 
 though the reverse in details, when my father was 
 alive. We were for the cargo-owners, claiming insur- 
 ance for total loss. After the first trial of the case, 
 and as it was about to be tried again, our chief wit- 
 ness told us for the first time that the ship had been 
 scuttled, and said he would tell this to the other 
 side if our clients did not pay him $4000. The other 
 side had not even suspected scuttling; but we went to 
 them, told them the story of our chief witness, and 
 urged that they should have him indicted, both for 
 
36 RICHARD HENRY DANA, JR. 
 
 his perjury at the first trial and for his own crimi- 
 nal acts in connection with the scuttling he had dis- 
 closed to us. Fortunately, the case had not been 
 concluded before we found by new and unsuspected 
 evidence that our clients were in the right after all, 
 and that our chief witness had got up a false story 
 for the purpose of this blackmail, and we were able 
 in the end to make a favorable settlement. 
 
 If, indeed, a lawyer should permit himself to pre- 
 judge his client's case, and only to take such side as 
 he believed the more likely to be true, who would 
 have been found to defend Desdemona, after the 
 incriminating handkerchief had been seen in Cassio's 
 hands, after she had been heard to befriend him, 
 speaking of "the love I bear to Cassio," and after 
 Cassio's (seeming) confessions.^ The true attitude of 
 the lawyer may be given in the words of Professor 
 Greenleaf, which Mr. Dana wrote in his journal about 
 the time of opening his law office : — 
 
 "A man who begins law properly and studies it 
 philosophically, will never find it dry. And if he 
 practices it upon the principles of Christianity and 
 professional honor, and conscientiously as a man and 
 a member of the body politic, his interest in it will 
 increase as he goes forward in life." 
 
 Or again, in Mr. Dana's estimate of Charles G. 
 Loring, in whose office he studied law: — 
 
 "It gives me pleasure to combine my testimony 
 with that of all others who knew him, to the high 
 tone of professional morals and gentlemanly conduct, 
 kindness, liberality and perfect fairness and integrity 
 of that gentleman." 
 
 We have been considering the orderly and logical 
 mode of expression and the historical, literary, clas- 
 
INTRODUCTORY SKETCH 37 
 
 sical and philosophical illustration with which Mr. 
 Dana enriched his arguments, and the moral ground 
 on which he practiced law. To complete the literary 
 portrait, we ought now to go back to his grasp of 
 fundamental principles of law, and his presentation 
 of them before the court, on which we touched briefly 
 in the early part of this sketch. 
 
 While he was District Attorney of the United 
 States, a most complicated case arose about the con- 
 flicting claims of the United States Treasury and the 
 State National Bank to certain funds, involving new 
 points of law iyiter apices juris, and depending upon 
 an intricate and much involved series of facts. Mr. 
 Dana argued for some hours, following out the course 
 of all the transactions, with dates, amounts, and 
 names, without once referring to his notes or making 
 a single mistake. I have more than once heard the 
 story of this argument from lawyers engaged in the 
 case. I do not remember all they said or exactly how 
 they said it; but the general impression left on my 
 mind might be expressed in the figure of a plant, with 
 roots, stem, branches, flower, and fruit, all developing 
 as if by magic under the warming climate of Mr. 
 Dana's own creating. This held the attention and in- 
 terest of the court in a way that might be illustrated 
 by Morley's description of Gladstone's speeches on the 
 budget: "Peel's statements were ingenious and able, 
 but dry; Disraeli was clever but out of his element; 
 Wood was like a cart without springs on a heavy road; 
 Gladstone was the only man who could lead his hear- 
 ers over the arid desert, and yet keep them cheerful 
 and lively and interested without flaging." 
 
 In the Peter York case, where Mr. Dana took the 
 side of the accused, we can see the process of thought. 
 
38 RICHARD HENRY DANA, JR. 
 
 York was accused of murder. Tlie killing by the de- 
 fendant was proved, but there was a doubt as to the 
 intent. If there had been malice aforethought, it was 
 murder, punishable by death; if the act was done in 
 the heat of passion, suddenly aroused, it was man- 
 slaughter, followed by a lesser penalty. There was 
 just enough evidence of passion from sudden con- 
 flict to raise a reasonable doubt in the minds of the 
 jury, but not enough for preponderating proof. 
 Should the jury then find murder, or only man- 
 slaughter.^ The answer to this legal question meant 
 to his client death or life. It was an admitted prin- 
 ciple of law that a crime must be proved beyond 
 reasonable doubt in order to secure conviction. Mr. 
 Dana contended that, as murder consisted of two 
 parts, killing and malice aforethought, and as both 
 must concur to make the crime, the government must 
 prove the concurrence of both beyond the reasonable 
 doubt. The government, on the other hand, con- 
 tended that, having proved the killing, there was a 
 presumption of malice aforethought, that is, of the 
 worst possible motive, that the burden of proof 
 "shifted" to the prisoner to dispi'ove this presump- 
 tion, and that if the jury was in doubt as to whether 
 or not there was such malice aforethought, it should 
 be instructed to declare for murder. Mr. Dana 
 argued that "from the mere act of killing, there is no 
 presumption, in nature or from experience, that it is 
 murder rather than manslaughter. Of all the homi- 
 cides that are committed, few are found to be mur- 
 der. A presumption of murder, from the mere fact 
 of killing, is therefore contrary to reason and experi- 
 ence, hence against liberty and life." 
 
 The language employed in the text-books and 
 
INTRODUCTORY SKETCH 39 
 
 judicial decisions was against Mr. Dana; but he 
 maintained that this language, when traced back, 
 either originated in the dark days of trial by fire and 
 water, or arose from some obiter dictum of an early 
 judge, in a decision not involving the present issue, 
 and that no case was, on its facts, ever adjudicated 
 against his proposition. The majority of the court, 
 in a very learned opinion of twenty-five pages, by 
 Chief Justice Shaw, decided for the legal presump- 
 tion, from the killing, of the worst possible motive 
 and a consequent death sentence; but Judge Wilde, 
 in a dissenting opinion of nine pages, upheld Mr. 
 Dana's contention; and, strange to say, it is this dis- 
 senting opinion that is now the law in every Anglo- 
 Saxon judiciary, including that of Massachusetts, and 
 not only in cases of murder, but in proving motive 
 in all crimes. 
 
 Besides demonstrating the right rule of burden of 
 proof in prosecutions, Mr. Dana's argument had 
 much to do with emphasizing the true and now gen- 
 erally accepted doctrine that, in determining law 
 from precedents, we must look through the phrases 
 employed by the judges in their opinions to the actual 
 principles necessarily involved in the cases they have 
 decided. To appreciate the change in this respect 
 since 1845, a lawyer educated in such modern meth- 
 ods as are employed at the Harvard Law School, for 
 example, need only read Chief Justice Shaw's opinion 
 in this case. 
 
 Perhaps the way in which Mr. Dana brought sim- 
 plicity of principles out of apparent chaos can best 
 be stated by his own words, taken from his journal 
 of September, 1854: — 
 
 '*! take to myself the entire credit of the case of 
 
40 RICHARD HENRY DANA, JR. 
 
 the Ospreyi just decided by Judge Sprague. It pre- 
 sented the question directly, what the rule was when 
 a steamer met a sailing vessel going free. ... A 
 recent case of Dr. Lushington's, City of London 
 (4, Notes of Cases), was directly against me. He held 
 that, in such a case, each vessel must keep to the 
 right. I carefully examined every case of collision 
 in England and America, and made up my mind that 
 there was a rationale which lay at the bottom of the 
 whole law of collision, which had never been ex- 
 pounded or even hinted by any judge or commen- 
 tator, and which, if sustained, would overturn Dr. 
 Lushington's decision and give me my case. I pre- 
 sented it in full to Judge Sprague, in an argument of 
 nearly four hours long, illustrating and enforcing it in 
 every way in my power. I acknowledged it to be new, 
 but told him that by propounding and enforcing it, 
 he could do for the law of collision what the great 
 Lord Holt did for the law of bailments in Coggs v. 
 Bernard. The result was that, after a deliberation 
 of ten days or so, Judge Sprague adopted and sanc- 
 tioned it entirely, overruled the City of London, and 
 gave me my case, and, what was more gratifying still, 
 he adopted not only my positions, but my reasons, 
 and did not add anything material to my argument." 
 The rationale was delightfully simple, as is so often 
 the case with discoveries. It is, "whether the two 
 vessels meet on terms of equality or inequality . . . 
 the vessel having the advantage takes the whole duty 
 upon herself, and the other vessel keeps her course. 
 If the favored vessel may keep her course, she must do 
 so, that the other vessel may know what to depend 
 upon." 
 
 ^ 1 Sprague, p. 245. 
 
INTRODUCTORY SKETCH 41 
 
 Mr. Dana's view is still the established law of all 
 nations on the high seas.^ 
 
 How JVIr. Dana extricated the country from the 
 dilemma raised by the Prize Causes during the early 
 part of the Civil War will be told more fully in the 
 notes to the Amy Warwick argument and his expla- 
 nation of what the decision meant. 
 
 In addition to Mr. Dana's naturally philosophical 
 and logical mind, and his habit of going to funda- 
 mental principles, his literary tastes and careful culti- 
 vation of them, I wish to say a word as to his good, 
 sound judgment. In how many instances of doubt 
 and perplexity in the public mind, Mr. Dana's views 
 have now become generally accepted! In the anti- 
 slavery times, he was a Free Soiler,not an Abolitionist. 
 He opposed extension of slavery to new states and 
 territories theretofore free. He preferred Washing- 
 ton's and Lincoln's ideas of gradual emancipation to 
 sudden abolition of existing slavery. He felt that the 
 preservation of the Union and the Constitution were 
 matters too important to risk by agitation for ex- 
 treme measures. He opposed the Fugitive Slave Law, 
 not because it was improper to return fugitive slaves 
 as the Constitution then was, but on account of the 
 drastic and unjust provisions of that law itself." In 
 the John Brown episode, before the Civil War, how 
 calm was Mr. Dana's judgment! "I could see the 
 courage and heroism of Brown, but to my mind, 
 there was ... an unmistakable vein of insanity run- 
 ning through it." Mr. Dana had been counsel for 
 
 ^ Act of Congress, August 19, 1890, and amendments August 13, 
 1890, May 28, 1894, June 10, 1896; Arts. 20 and 21, adopted under a 
 general plan of uniform code for the world. 
 
 ^ See introductory note to "Great Gravitation Meeting," -post. 
 
42 RICHARD HENRY DANA, JR. 
 
 every fugitive slave, and for most of those who were 
 indicted for rescue, and he plainly noted the differ- 
 ence between a fugitive slave and the John Brown 
 incident in these words: "When a man is escaping 
 from slavery, it is a question between his freedom 
 and his master's money . . . and in a question be- 
 tween freedom and money, the sympathies of every 
 man go with freedom; but an appeal to arms is a 
 war of races . . . and I confess that, in a contest like 
 that, my duty and my sympathies go with my own 
 race." 
 
 Had Mr. Dana's views more generally prevailed 
 in the forties and fifties, we should have avoided the 
 Civil War and the evils of sudden emancipation of 
 the whole five millions of an enslaved race without 
 preparation for freedom. Just as the Civil W ar was 
 pending, he urged every reasonable conciliation with 
 the South, but not submission to the claims of slavery 
 extension. In the Prize Causes, it was good judgment 
 and common sense, as well as good law, in Mr. Dana, 
 wholly to acknowledge a great war against a de facto, 
 though wrongfully formed, nation, and to point out 
 that this course did not acknowledge the right of 
 secession or independence of the confederacy, or allow 
 other powers to acknowledge them. He turned the 
 English acknowledgment of " belligerency " into an 
 acquiescence on the part of Great Britain in our right 
 of blockade. 
 
 In the Trent affair, when Mason and Slidell were 
 taken off that British steamer by an American war 
 vessel, Mr. Dana believed that we should take Eng- 
 land's former attitude, and refuse to return these 
 gentlemen. England up to that time had always 
 claimed the power of taking persons out of neutral 
 
INTRODUCTORY SKETCH 43 
 
 vessels in time of war; but when it appeared that 
 England was ready to abandon her old position, ^ in 
 favor of the opposite contention of the United States, 
 urged since the days of armed neutrality in the 
 Revolutionary War, through the War of 1812, and 
 up to 1861, Mr. Dana's sound sense, as well as his 
 knowledge of international law% made him heartily 
 acquiesce in the return of these men. In 1862, when 
 Mr. Lincoln was being severely attacked, Mr. Dana 
 had the good judgment to appreciate the great quali- 
 ties of Lincoln, and stood up in his defense at the 
 Worcester Republican Convention. 
 
 As to his arguments that changed the law of colli- 
 sions at sea, and the shifting of the burden of proof 
 in criminal cases, one sees at bottom the sound, 
 practical common sense leading to conclusions, which 
 no mere logic can account for. At the beginning of 
 the reconstruction period, he showed that we must 
 carry out the purposes for which the war was fought; 
 and in his "Grasp of War" speech showed the prin- 
 ciples upon which that could be done under our 
 Constitution. It was very easy then to be misled into 
 all sorts of technical and subtle reasoning; but Mr. 
 Dana had the good sense and sound judgment to con- 
 strue the Constitution so as to allow unusual powers 
 in unusual circumstances as to which that instrument 
 was silent. At that time, he had the good sense to see 
 that the freedmen should be granted the franchise 
 only on educational and property qualifications, and 
 to make a clear distinction between social or race 
 equality, in which he did not believe, and equality of 
 political rights under the law. It was a certain sound 
 
 ^ See letter of Adams to Seward, Dec. 27, 1861, Diplomatic Corre- 
 spondence, 1861-62, p. 13, and Dana's Note to Wheaton, pp. 644-649. 
 
44 RICHARD HENRY DANA, JR. 
 
 judgment that made Mr. Dana espouse the repeal of 
 the usury laws in Massachusetts. 
 
 Many political reforms of uncertain value have 
 been urged with great vigor, and others of only sec- 
 ondary importance. Such do not go to the root of 
 the evils, nor affect the motives which govern the 
 actions of men. In "Points in American Politics," 
 written in 1876,i Mr. Dana showed his sound sense 
 in selecting for presentation the really urgent needs 
 of our country. He started off by laying down the 
 fundamental principle of all civic reform in the propo- 
 sition that frauds in government will always be found 
 wherever affairs are controlled by human beings; 
 ''hut the extent of the frauds will depend upon the temp- 
 tations offered.'' 
 
 This principle he proceeded to apply to the manner 
 of electing the President of the United States. Presi- 
 dential electors, he showed, are allotted to each state 
 and chosen by the state at large; consequently the 
 area for the operation of a single fraud is the entire 
 state, and it may determine the choice, not of one 
 elector, but of thirty or forty, which, taken from one 
 party and added to the other, might make a differ- 
 ence of sixty or eighty in the Electoral College of some 
 four hundred. In this article, Mr. Dana advocated 
 the election by Congressional districts, each district 
 electing one presidential elector, so as to confine the 
 area of a single fraud to the one district, and so deter- 
 mine not forty, but only one electoral vote, and thus 
 reduce the temptation to invest much capital, labor, 
 or risk in that kind of fraud. The sound sense of this 
 is quite generally acknowledged. 
 
 Another application of the general principle he 
 
 Published in the North American Review, January, 1877. 
 
INTRODUCTORY SKETCH 45 
 
 made to the presidential tenure of office. The four- 
 year term of our national executive, with the right 
 of reelection, lays the president open to the tempta- 
 tion of manoeuvring for renomination and reelection; 
 and Mr. Dana advocated a longer term of, say six 
 or seven years, and ineligibility afterwards, as re- 
 moving the temptation and yet giving a president 
 time in which to carry out his policies. This same 
 arrangement, he showed, would also reduce the fre- 
 quency of the exciting and unsettling process of 
 *' king-making," with its consequent partisan activi- 
 ties in our republic. 
 
 Mr. Dana also showed the enormous temptations to 
 use, for partisan and personal purposes, the unlimited 
 power of appointment and removal over the one hun- 
 dred thousand federal office-holders, as they then 
 numbered, with their united salaries of over one hun- 
 dred millions a year. He showed how fidelity to the 
 political and electioneering service of the member of 
 Congress procured appointment; how this made the 
 employees of the custom-house and post-office "the 
 praetorian guards and corps of janissaries for congress- 
 men, paid from the public treasury"; how to the 
 fight for the spoils of office was attributable much of 
 the "corruption of those various demoralizing labors 
 known by the names of pipe-laying, log-rolling, cap- 
 turing and managing of caucuses and conventions," 
 and its bad effects on the members of Congress: — 
 
 "It nurses a love of power over individuals, it 
 accustoms them to look to the selfishness of men, 
 their fears and their cupidity, as the sources of their 
 own influence and the means of their advancement. 
 It occupies a large portion of their time to the exclu- 
 sion of their proper public service. It allows them to 
 
46 RICHARD HENRY DANA, JR. 
 
 believe that their reelection or promotion depends 
 more upon the manner in which they have managed 
 their patronage than upon the part they have taken 
 and the labors they have performed in the service 
 of the nation." 
 
 This was written before the civil-service-reform 
 addresses of George William Curtis. The principle has 
 never been better stated. To remove this great temp- 
 tation, with its consequent evils, Mr. Dana suggested 
 civil-service reform, which he had long advocated in 
 its days of unpopularity, and which, although applied 
 to-day to only about two thirds of our enormous fed- 
 eral service of nearly three hundred and fifty thou- 
 sand places, has done so much to remove those temp- 
 tations and evils. 
 
 In this article, he exposed the temptation to use the 
 United States troops in the South for the interests of 
 the Republican party, and though himself an ardent 
 Republican, strongly urged the withdrawal of the 
 federal troops months before President Hayes took 
 that remarkable and patriotic action. 
 
 Lastly, if not too much an anti-climax after subjects 
 of national importance, let me mention a purely local 
 matter, — that of making the Charles River at Bos- 
 ton a great water park. Mr. Dana's interest in the 
 sea led him to devote much time and thought to Bos- 
 ton Harbor, and, as a corollary, to the Charles and 
 Mystic rivers flowing into it. When plans were being 
 considered for the layout of the streets in the Back 
 Bay district, before any of the section west of the 
 Public Garden had been filled in, he advocated a bou- 
 levard along the water front of the Charles River 
 Basin, with houses fronting over this and looking 
 towards the river. That plan was defeated by land- 
 
INTRODUCTORY SKETCH 47 
 
 holding interests which saw a chance to crowd in more 
 building lots by another scheme. Like untutored 
 farmers and fishermen, Boston backed its houses on 
 its best view. 
 
 Afterwards, in 1875, he urged with great force, as 
 the next best plan, filling in behind the Beacon Street 
 houses next to the river, a space sufficient for an ave- 
 nue, grass and shrubbery, in place of what he called 
 "Scavenger Alley," that narrow, muddy, rutty pas- 
 sage, which, with its tin cans, ash barrels and waste- 
 paper, disfigured the margin of the river for so long, 
 to the disgrace of Boston's good taste and public 
 spirit. 
 
 Now, after thirty -five years. Scavenger Alley, or 
 Boston's "Rotten Row," as it has sometimes been 
 called, has been replaced by a river park somewhat 
 like Mr. Dana's "next best plan." But now that we 
 have this river park, the public sees only the backs 
 of the houses adjoining it. How much better would 
 have been the first scheme which Mr. Dana, with his 
 sound judgment and wise forethought, so earnestly 
 urged, and which now we can never have ! 
 
 I would also say a word as to his unusual powers 
 in debate. I shall give two examples, — the repeal 
 of the usury laws in Massachusetts and the support 
 of Lincoln, — of which I have just spoken. As to the 
 first, there was then no organization of business men, 
 no special effort outside the legislature for the repeal 
 of these laws. It was wholly the influence of a single 
 debate by Mr. Dana that, to the surprise of the public, 
 brought about the result. As to the latter, the late 
 Senator Hoar has repeatedly stated, with great em- 
 phasis, that Mr. Dana's support of Lincoln at the 
 Massachusetts Republican Convention in 1862, was 
 
48 RICHARD HENRY DANA, JR. 
 
 the most remarkable instance he ever knew of a large 
 body of men who had publicly committed themselves 
 to a course, being persuaded by the argument of a 
 single man to change their minds and do the reverse.^ 
 
 Notwithstanding Mr. Dana's natural ability, care- 
 ful preparation, sound sense, eloquence, and hard 
 work, he did not achieve the high political career for 
 which he was undoubtedly ambitious. His friend, 
 Judge Hoar, thought his "Episcopalianism" stood 
 in his way, and that he would have done better if 
 he had been a Congregationalist, — one might add, 
 still better if a Methodist. Some of his friends 
 thought him at times too "aristocratic." To this, 
 his near-sightedness, inability to recognize faces 
 quickly, a certain dignity of bearing, and his high- 
 mindedness lent force; though, in so far as it existed, 
 it was strangely inconsistent with his thorough de- 
 mocracy concerning human rights, his siding with 
 the oppressed with such ardor and courage, and his 
 condemnation and even ridicule of aristocratic tend- 
 encies or reliance on family name and prestige in a 
 country like ours. A little more of this, and of his 
 kindness and friendship for the humble, I shall set 
 forth in the Introduction to the "Letters from a 
 Father to a Son." 
 
 Sometimes he was impolitic in his open denuncia- 
 tion of what was low and mean in public life in gen- 
 eral and in public men in particular, and he was often 
 put forward to say the word that others shrank from 
 speaking. It may be well to give one case, as illus- 
 tration, which he related to me. Judge Clifford had 
 
 ^ The reversal was complete with the mass of the convention, but the 
 leaders who were on the committees, by adroit tactics, partially thwarted 
 Mr. Dana and the convention itself. 
 
INTRODUCTORY SKETCH 49 
 
 been made Justice of the United States Supreme 
 Court from the New England district, and had the 
 appointment of a United States Commissioner, a 
 sort of minor judge. Ability in that position was of 
 the greatest importance, and the Bar Association 
 had two or three candidates to suggest; but it learned 
 that the Judge had a candidate of his own, who did 
 not have the confidence of the Bar. Mr. Dana was 
 chairman of the committee appointed to see Judge 
 Clifford. It was a delicate matter. No lawyer prac- 
 ticing before the United States Courts could well 
 afford to incur the ill-will of so powerful a person as a 
 Justice of the United States Supreme Court. In the 
 interview, Judge Clifford replied that he would be 
 glad to please the Bar of New England, but said, 
 *' Gentlemen, you should know that when my con- 
 firmation in the United States Senate was long in 
 
 doubt, Senator came to my support and turned 
 
 the tide in my favor. He wants this man appointed, 
 and I must do as he wishes." To this principle of 
 appointment my father felt obliged to make a pro- 
 test. He afterwards felt that Judge CHfford never 
 quite forgave him. 
 
 It may be interesting to know what Mr. Dana him- 
 self regarded as the chief stumbling-block to his 
 public career. He believed it was the existence of the 
 "spoils" system in American politics. He could not 
 reconcile himself to the idea of securing personal 
 success in politics by the use of public patronage, 
 nor could he acquiesce in indirect participation of this 
 breach of trust by others. His journals have frequent 
 references to the evils of the system. "The state 
 of mind of poor Cheever," the capable lighthouse- 
 keeper at the Isles of Shoals, in August, 1843, anxious 
 
50 RICHARD HENRY DANA, JR. 
 
 to keep his place, but not knowing which way to turn 
 in the political chaos, is well told in the Life,^ a case 
 "which illustrated the unhappy state of our country," 
 as Dana says. Later in the same year, Cheever calls 
 on Mr. Dana for help, having been removed without a 
 hearing from his means of living. Mr. Dana, in the 
 journal, describing the abject state of mind of the 
 distracted man, writes that Cheever "would support 
 the administration if they would give him his place," 
 and ends the account with the remark, "I detested 
 this vicious system, which is corrupting the morals 
 of the republic." In 1854 he writes out a statement, 
 made by Sumner, of the secret sessions of the Senate: 
 
 "Since I have been in the Senate, some thousands 
 of nominations have been acted upon, and whether 
 confirmed or rejected, the test openly and unblush- 
 ingly put now, in debate, by Senators, is the test of 
 fidelity to the slave power. At first it was the Fugi- 
 tive Slave Law. Now it is Nebraska. It is not enough 
 that he be of the ruling party, the least suspicion of 
 infidelity to the Southern policy of the party is fatal. 
 The most minute and gossiping evidence is gone into, 
 on each side, pro and con, to prove or throw in doubt 
 the position of the nominee, but the fitness for the 
 office is not alluded to. Only in two instances, posi- 
 tively, only in two instances, can I remember that 
 the moral character or fitness of the nominee have 
 been alluded to." 
 
 Later, he quoted another remark by Sumner, made 
 after the Republican party had been long in control. 
 Fidelity to the slave power was no longer the test, 
 but there was still the same neglect, in executive- 
 session debate, of moral character and fitness. In 
 ^ Vol. i, pp. 91-93. 
 
INTRODUCTORY SKETCH 51 
 
 *' Points in American Politics," already referred to, 
 Mr. Dana speaks of civil-service reform as going 
 "deeper into the political life of the nation than any 
 other" matter of "legislative or executive policy." 
 
 Those were the days when the advocacy of civil- 
 service reform required moral courage. It was before 
 the formation of any civil-service reform association, 
 and such advocacy was an obstacle to the advocate's 
 political preferment. There were in public life a few 
 men of high character; but even they, in order to 
 keep their positions, had to aid in all the "pipe- 
 laying" and "fence-building" of the local "ma- 
 chines," by recommending removals and appoint- 
 ments in office to suit the "boys." If the "machine" 
 which really dictated nominations for elective offices 
 in Massachusetts in those days, as it still does in 
 some other states to-day, felt that a man really meant 
 to refuse to give the offices to the workers, then, in 
 the words of Professor Child, referring to my father, 
 "they would have none of him." Preaching reform 
 of the spoils methods before election " spread a cold- 
 ness over" the "professional politicians," very like 
 the proverbial effect of a sermon against stealing 
 chickens on a darky meeting in the South just before 
 Christmas. 
 
 In the Hayes-Tilden campaign, Mr. Dana made a 
 political speech in Cambridge. He held his large audi- 
 ence, with men standing in the back passages and half- 
 way up the aisles, through nearly two hours. At times 
 you could hear a pin drop, and yet the address was 
 dispassionate, with a few passages of what is called 
 "eloquence." Many who had come in doubt left as 
 strong supporters of Hayes. Some Cambridge Re- 
 publicans urged that Mr. Dana be asked to repeat 
 
52 RICHARD HENRY DANA, JR. 
 
 this speech all over the state; but he had spoken too 
 much and too earnestly about civil service reform, and 
 so the request never came from the managers. 
 
 Even those great leaders, who were too high-minded 
 to have inaugurated such a system, and who disliked 
 it, yet acquiesced in it, and failed to denounce it. 
 Naturally they were somewhat bitter toward civil ser- 
 vice reformers, who, in attacking the system, attacked 
 what these leaders had taken part in and profited 
 by. I well remember, in 1888, going to one of these 
 public men, who was a real civil service reformer at 
 heart, and who supported the cause when it came 
 to a vote in Congress. I had been intrusted by the 
 National Civil Service Reform League with the task 
 of getting a good plank on the merit system inserted 
 in the Republican platform. This public man was a 
 member of the Committee on Resolutions of the 
 National Republican Convention, then being held at 
 Chicago. The words "civil service reform" were to 
 him, however, like a red rag to a bull. He spent the 
 whole twenty minutes he had to spare in most rabid 
 denunciations of George William Curtis and his whole 
 flock. I could not get in a word "edgewise." He did 
 not even look at my draft, and I had to go to a young 
 delegate, not then prominent, Mr. Samuel W. McCall, 
 now M. C, and he managed- to get the plank adopted. 
 Indeed, one of the incentives for attacking the spoils 
 system, one of the objects mentioned in civil service 
 reform literature, is that, by abolishing patronage, we 
 abolish that which keeps out of politics, by the very 
 necessity of the case, many of the high-minded men 
 we most desire to have represent us. 
 
 Had Mr. Dana's lot fallen in another country, 
 where, or in this country at a time when, the spoils 
 
INTRODUCTORY SKETCH 53 
 
 system did not prevail, his character, ability, cour- 
 age, eloquence, sound sense, diligence, and attain- 
 ments might have had a better chance to bring him 
 that public career for which his friends have testified 
 they thought him so eminently fit. 
 
 Yet his public career was not wholly wanting in 
 honors. President Lincoln, through his Secretary of 
 State Seward, in the most flattering terms offered 
 him the position of Secretary of the Navy, on the 
 supposition that Gideon Welles was about to resign. 
 Mr. Welles reconsidered his project of resigning, and 
 the appointment of Mr. Dana was not made, nor 
 could the knowledge of the offer be published at the 
 time. Mr. Dana took a conspicuous part in the 
 famous Constitutional Convention of 1853. Of his 
 work in that Convention, Mr. Adams says in the 
 Memoir: "There was no man in the Convention who 
 rose more rapidly or into greater prominence as a 
 debater than Mr. Dana." He was offered a nomina- 
 tion to Congress, which meant an assured election, 
 early in his career; but he had to refuse it for want of 
 adequate means, which he felt a congressman should 
 have in order to maintain his independence. 
 
 He had, as he said, "the privilege of being counsel 
 for every fugitive slave and for most of those who 
 were indicted for rescue"; and the reputation that 
 he gained in the Prize Causes, already referred to, 
 and the taking part in establishing the policy of the 
 United States, as shown in the note to the Prize 
 Causes, gave him great satisfaction. 
 
 While in the State Legislature for two years, he 
 made one of the great speeches in the history of that 
 body. It was on the repeal of the usury laws. He was 
 made chairman of the Judiciary Committee, which 
 
54 RICHARD HENRY DANA, JR. 
 
 was the position of the leader of the House, after only 
 one year's service. He was offered the position of 
 Minister to Russia, and a seat on the Supreme Judi- 
 cial Court of Massachusetts, both of which he de- 
 clined. He was chosen counsel for the United States 
 in the matter of the prosecution of Jefferson Davis 
 for treason. In this he took the position, and so 
 advised the government, that it was unwise to pro- 
 ceed, partly because it would be impossible to con- 
 vict before a jury drawn from any of the scenes of 
 Mr. Davis's overt acts, namely, the Confederate 
 States, without excluding every man with secession 
 sympathies, which in effect would look very like 
 packing the jury with those of Northern feelings ; while 
 to try him in the North, for example in the State of 
 Pennsylvania, on the ground that some of the troops 
 of which he was the nominal commander-in-chief had 
 invaded that state, would look very like changing the 
 venue to secure conviction; that to punish one man, 
 though a leader, and let others off who were as much 
 if not more to blame for secession, would create a 
 feeling of unfairness ; and mainly, he took the broader 
 ground that our policy should be to reunite the coun- 
 try into one lasting union, and for this, a magnani- 
 mous course of pardon was more effective than pun- 
 ishment. In this way, his advice was against his 
 chance to increase a reputation which the trial of 
 such a great national cause would have done. 
 
 He was also selected as chief counsel for the United 
 States in the Fisheries Commission, held at Halifax 
 in 1877, being a part of the arbitration arranged for 
 under the Alabama Treaty. He undertook this case 
 at great disadvantage, as the Treaty itself, as appears 
 in the notes to Mr. Dana's argument before the Hali- 
 
INTRODUCTORY SKETCH 55 
 
 fax Commission, had given away the chief part of 
 our case, and prevented our proving rights to which 
 he believed we were really entitled, and which, if 
 proved, would have greatly cut down the Canadian 
 claims. 
 
 Though Mr. Dana's nomination for Minister to the 
 Court of St. James by President Grant was not con- 
 firmed in the Senate, yet, as shown in the "Letters 
 from a Father to a Son," it was confirmed by public 
 opinion of the leading people throughout the country. 
 
 As to his professional career, it is told in the Life 
 how successful Mr. Dana was as to the number of 
 cases he tried in court, and the proportion of verdicts 
 he obtained; and from the point of view of income, 
 how frequently, though not always, he was on the 
 side of the poor man, the sailor, or the fugitive slave, 
 and how his attitude on the slave question, though 
 he was not an extremist, not an Abolitionist, pre- 
 vented his having many rich and influential clients; 
 how, for example, an article had appeared in the 
 papers urging Boston merchants not to retain him; 
 yet the one critical point in his professional career 
 is not set out in the Life. This was told me bj^ the 
 late Mr. Lewis S. Dabney, partner of Mr. Dana after 
 his resignation as United States District Attorney, 
 on the inauguration of President Andrew Johnson's 
 famous "bread-and-butter policy." At this time, 
 in 1866, all the opposition to Mr. Dana from the 
 wealthy merchants on account of his anti-slavery 
 principles, had vanished. The tide of sentiment dur- 
 ing the Civil War had turned in Mr. Dana's direc- 
 tion. His great success in the Prize Causes, and the 
 economic and able administration of his office, as well 
 as his court work as United States District Attorney, 
 
56 RICHARD HENRY DANA, JR. 
 
 had brought him still more prominently forward at 
 the bar. At this time, Mr. Dabney said, the largest 
 cases in Boston were brought to him; but, at this 
 point of his life, having saved a moderate sum of 
 money, and feeling that this was his chance to begin 
 the political career he craved, he decided to enter 
 the Massachusetts Legislature. To his two years' 
 work there, he devoted his best talents and almost 
 the whole of his time and thought. Case after case, 
 involving large amounts, was turned away from the 
 office because Mr. Dana could not attend to it. The 
 result but illustrates the saying that "Law is a jeal- 
 ous mistress, and the one thing she will not forgive 
 is attention to another." Big cases like those he re- 
 fused, and such as would have given him one of the 
 largest incomes at the bar, did not come to him again 
 when he went back to his office after these two years 
 in the legislature; indeed, it took several years of 
 heartrending waiting before he attained his former 
 annual income. He managed, however, during the rest 
 of his life, to save enough property indirectly, by add- 
 ing to and greatly increasing the value of a trust fund, 
 to leave his widow a good home and a fair income. 
 
 As to relaxation and recreation, Mr. Dana was 
 indeed going at a killing pace all through his early 
 and middle life, even forgetting at times to eat his 
 noon-day meal. Let me give an account of one day's 
 work, not told in the Life, found in his journal under 
 date of March 8, 1853: — 
 
 "Monday night (7th) I lectured at N. Bridgewater. 
 After an early breakfast left for Boston where I ar- 
 rived soon after 9, argued Rand and Mather before 
 the full bench Sup. Ct., closing at 2 o'cl'k, without 
 dining took 23/^ train for Dedham, and began the 
 
INTRODUCTORY SKETCH 57 
 
 trial of Bigelow and Wood immediately on my arrival 
 — Immediately on adjournment of the Court took 
 cars for Boston and thence coach to Charlestown and 
 lectured l^i on Burke, returned to Boston, had an 
 interview with Dr. Townsend who is a witness in White 
 V. Braintree and thence to Cambridge — all this time 
 eating nothing but a few figs and a sandwich in the 
 coach — a pretty good day's work!" 
 
 He had less of what is called "amusement" than 
 most men; but, it must be remembered, he enjoyed 
 intellectual occupation more than most people, and 
 got relaxation from what would appear hard work 
 to others, while through it all he had a hopeful, 
 buoyant nature, a great sense of humor, and was 
 extremely fond of his home. In the midst of a hot 
 summer, with cholera epidemic in Boston, just hav- 
 ing lost a hard-fought case, "reserving" only "a 
 point of law," having just been ill with symptoms of 
 cholera, living and spending his nights in town, and 
 tied close to his office, with plenty of cause for gloom, 
 see how joy triumphs. In his journal of August 17, 
 1849, he writes: — 
 
 "Have entirely recovered and am remarkably well 
 in the midst of so much sickness. For which God be 
 praised. This general sickness and mortality has 
 impressed upon my mind the frailty and uncertainty 
 of human life, the certainty of death and eternity. I 
 trust it has had a proper effect upon my life and my 
 habits of mind and thought. How true are the melan- 
 choly words of Hamlet: 'If it be now, 't is not to come. 
 If it be to come, 't will not be now. If it be not now, 
 it will come, the readiness is all!' [evidently quoting 
 from memory, and then ends] How much I have to 
 make life desirable! Has any man more.^" 
 
58 RICHARD HENRY DANA, JR. 
 
 As I think of his buoyancy and joy in living and 
 working, I say, in the words of George Meredith, 
 descriptive of Diana of the Crossways, "A linnet 
 sang in his breast, an eagle lifted his feet." 
 
 One of Mr. Dana's great powers was that of a ra- 
 conteur; but he also had ready and spontaneous wit 
 and repartee. The tradition of his presiding at the 
 Phi Beta Kappa dinners in the early seventies, and 
 showing those qualities in rare degree, lasted for 
 many years. As late as 1909, several older members 
 spoke of it to me at the dinner. I well remember a 
 dinner of the Lawyers' Club at his house, No. 361 
 Beacon Street, about 1874 or 1875. There were gath- 
 ered the leaders of the Boston Bar, and I, a law-stu- 
 dent at the time, was admitted as a guest. I remem- 
 ber how his face lighted up, the quick repartee, the 
 lively humor, the laughter-giving wit, with which he 
 enlivened his end, and not infrequently the whole 
 of the table. He was noted for his laughter. I went 
 once to see the elder Sothern as Lord Dundreary, and 
 sat in the gallery. Some one on the floor led the bursts 
 of laughter with quick appreciation of the points. 
 This was so marked that I looked to see who it was, 
 and found it was my father. Indeed, his sense of 
 humor sometimes struck him on most incongruous 
 occasions, as at funerals and the like. While at home, 
 he was the life of the family, and many of his friends 
 have said, as I have felt, that, long after his death, 
 when they heard a funny story or a bit of quick re- 
 partee, as well as some important public news, their 
 thought was, "I must tell this to Mr. Dana." 
 
 During one period only, when, in 1869-70, he was 
 suffering from a combination of ill-health, caused by 
 sewer-gas poison during the days when people ad- 
 
INTRODUCTORY SKETCH 59 
 
 mitted the anacondas of drains into their houses with- 
 out making them harmless with traps and vents, and 
 feeling the worries from a smaller professional in- 
 come than he had been accustomed to, was he de- 
 pressed. He fully recovered his health and spirits, 
 however, by a voyage to Scotland and back, in the 
 summer of 1870. 
 
 As Mr. Adams states in the Life, Mr. Dana has 
 been called, by some of his wisest friends, a man of 
 genius. He certainly was capable of great visions, 
 without being visionary, and to his ideals he devoted, 
 at times, "infinite pains." The night after the flog- 
 ging of his two fellow-sailors off San Pedro, Cali- 
 fornia, Mr. Dana, lying in his berth, "vowed that, 
 if God should ever give me the means, I would do 
 something to redress the grievances and relieve the 
 sufferings of that class of beings with whom my lot 
 has been so long cast." This vow he carried out in no 
 visionary scheme of mutiny or foolish "paying back" 
 to the captain, but by awakening a "strong sym- 
 pathy" for the sailors "by a voice from the fore- 
 castle," in his "Two Years Before the Mast," a book 
 which has had much to do with securing the enact- 
 ment of laws against flogging seamen, overworking 
 and underfeeding them, and the like, all which ex- 
 periences he had so well portrayed. After his "Two 
 Years Before the Mast," with much the same pur- 
 pose he wrote "The Seaman's Friend," setting forth 
 the rights of sailors, as well as their duties, a book, 
 by the way, which had been reprinted in England 
 under the title of "Seaman's Manual," and which I 
 found in 1875-76 was in use by the Admiralty judges 
 and in the Navy of that country. 
 
 Mr. Dana had a vision of manhood freedom, but 
 
60 RICHARD HENRY DANA, JR. 
 
 he was not an Abolitionist. He had no visionary plans 
 of arming the negro slaves, of opposition to the Con- 
 stitution, that "compact with the devil," as some 
 extremists called it, nor of secession from the slave 
 states. He favored rather the abolition of slavery 
 by degrees, as recommended by Washington in his 
 letter to Lafayette of May 10, 1786, or by gradual 
 purchase, as suggested by President Lincoln. He had 
 a vision of one great and united country, and to se- 
 cure this, in 1861, he made a speech at Manchester, 
 New Hampshire, repeated at Cambridge, which at- 
 tracted public attention throughout the country. 
 At that time, the slave states were on the verge of 
 secession, and he urged every reasonable concession, 
 even the direct acknowledgment of rights of slavery 
 in the Constitution, and the enactment of a reasonable 
 fugitive slave law; indeed, every concession to the 
 slave power except the forcible extension of slavery 
 in free soil and the unjust provisions of the fugitive 
 slave law then in force. His vision of justice was up- 
 set by the barbarities of this same fugitive slave law; 
 but he was not carried away by visionary schemes 
 of punishing all those who carried out what the Su- 
 preme Court had declared to be the law. On the con- 
 trary, he defended Judge Loring against the petition 
 to have him removed, on account of his decision 
 against fugitive slaves, as more consistent with the 
 vision of the reign of law, the only safeguard of true 
 liberty. After the war was ended, he had a vision of 
 securing the results of the war, and this he outlined 
 in the first scheme of reconstruction policy, set forth 
 in the resolutions which he drew up and which were 
 accepted at Faneuil Hall July 10, 1866, and in his 
 speech on their behalf; but these contained no vision- 
 
INTRODUCTORY SKETCH 61 
 
 ary plan of universal negro suffrage, but one based 
 only on property and education, nor of death to all 
 "traitors," but of general self-government and am- 
 nesty after acceptance of emancipation and union. 
 
 He had a vision of long lines of patriotic and pub- 
 lic-spirited citizens, who would follow the footsteps 
 of their ancestors; but no foolish and visionary idea 
 of an American aristocracy. He had a vision of faith 
 in the American people; but no fatuous belief that 
 the majority was always wise and right and the people 
 free from failings; on the contrary, they needed lead- 
 ers to reason with them, reforms that would take 
 away special temptations and dangers, such as lurked 
 in the spoils system, the restraint of a written con- 
 stitution and stable laws, interpreted and enforced 
 by an independent judiciary, to prevent haste, vio- 
 lence, or injustice in the exercise of their powers. 
 He had a splendid vision of a great party, acting from 
 pure principle, a vision which he first saw at the 
 Buffalo Free Soil Convention in 1848, which was the 
 beginning of the Republican party; but he did not 
 follow party ties to an extreme. He sacrificed him- 
 self as one of the first Independents in politics in his 
 hopeless run against the "regular" candidate of the 
 Republican party for Congress in 1868, Benjamin F. 
 Butler, when Butler stood on a platform of paying 
 the government bonds in greenbacks. 
 
 He had a vision of an historic church, with an an- 
 cient liturgy consecrated by generations of use and 
 approval, "the united prayers and praises, the com- 
 mon worship, the confessions with the mouth, the 
 anthems and ascriptions, the regular reading of 
 Scriptures, the 'Christian Year' with its returns of 
 solemn observances, the sacraments exalted to their 
 
62 RICHARD HENRY DANA, JR. 
 
 proper place," all carried on with dignity and rever- 
 ence, and round which cluster the tenderest associa- 
 tions of each devout Christian; but he had no sym- 
 pathy with those who would restrict the mercies of 
 God to the few within the Church of England and 
 its American branch, who held special views. While 
 he had "no doubt the Almighty has every variety 
 of instruments working in every variety of ways to 
 secure the well-being of his creatures,"^ neither did 
 extreme ritual please, nor the one-man service satisfy 
 him. 
 
 No doubt Mr. Dana's life was, on the whole, a dis- 
 appointment to him; but he kept up the same pluck 
 with which, as a boy, he sprang past the hesitating 
 crew of the Pilgrim, and, with John "the Swede," 
 lay out on the bowsprit in snow, hail, and sleet off 
 Cape Horn, diving beneath the great masses of water 
 and holding on for life, till they furled the jib of their 
 little 190-ton brig. The pathos of his life did not de- 
 generate into sadness. He never for a moment let 
 himself become a man with a grievance, no, not even 
 on the loss of the English mission in 1876, so well 
 told in the Life, nor at the "law's delay" before the 
 master's report ended in his favor the Beach Law- 
 rence suit, which had charged him with plagiarism, 
 nor at the smallness of his professional income at times. 
 The letters from Rome, even to the last, were full 
 of humor and animation. The late W. W. Story, the 
 sculptor, described to me a dinner which he gave to a 
 party of American friends in Rome on Christmas Eve, 
 1881, four days before my father's last and fatal ill- 
 ness. Mr. Story said he had never seen surpassed the 
 wit and brilliancy with which Mr. Dana led the con- 
 * From the Journal of 1844. 
 
INTRODUCTORY SKETCH 63 
 
 versation that evening. Of the same dinner, my father 
 wrote in a letter that he had " never enjoyed such a 
 company more." 
 
 Well did Mr. Adams finish the Biography with a 
 letter from Mr. Dana's old partner, the oracle of 
 cultivated Boston, Mr. Francis Edward Parker, 
 written shortly after my father's death, in which 
 is this sentence: — 
 
 "Buffeted as he had been for more than twenty 
 years, disappointed in every high ambition of his 
 life, fallen on evil times and evil chances, how bravely 
 he kept his courage!" 
 
II 
 
 JOURNAL ENTRIES OF CONVERSATIONS 
 WITH "UNCLE EDMUND" 
 
 Edmund Trowbridge Dana. Born, 1779. Died, 
 1859. Harvard, 1799. 
 
 " He is the last of those who connected my youth with Europe 
 and art, and the great men and great events of fifty years ago." 
 (Journal of R. H. Dana, Jr., 1859.) 
 
 Called at Uncle Edmund's last evening [Dec. 6, 
 1851]. He was very entertaining. Talked about his 
 friend Arthur Maynard Walter and their good times 
 together in London. He said he hardly knew which 
 Walter preferred, the Theatre or the House of Com- 
 mons. He enjoyed a front seat in the gallery as much 
 as in the pit, and rubbed his hands when the house 
 filled as much as when the curtain rose. He described 
 a debate he heard on the bill for a levy en masse, when 
 Bonaparte was at Boulogne. Pitt, Fox, Sheridan, 
 Canning, and Windham spoke. Fox, he said, had a 
 long back, was corpulent, with a narrow upper part 
 and wide lower part to his head, heavy -looking, but 
 with fine eyes. His manner was entirely without 
 graces, and his utterance very rapid, but he was full 
 of illustration and very interesting. Pitt, he says, 
 had a less original mind than Fox, and less variety, but 
 his manner was very impressive, his voice full and 
 melodious, his utterance slow and emphatic, with 
 a certainty and copiousness of speech which made 
 
CONVERSATIONS WITH UNCLE EDMUND 65 
 
 you perfectly certain that he would not fail or be- 
 come embarrassed or confused. His arrangement was 
 methodical, and he made every subject clear. His 
 moral character gave him great weight, and he was 
 considered independent and disinterested. Sheridan 
 looked and acted like a theatrical manager, full of 
 flourish and graces. He was particularly severe on 
 the late administration (Pitt's, for Addington was 
 then premier), and Pitt replied. Sheridan had not 
 spoken for a long time, and Pitt congratulated him 
 on his recovery of his speech, and said he had been 
 bottled up so long that he came out with a bounce. 
 The next day there was a caricature, entitled "Un- 
 corking Sherry," representing Pitt in a wine vault, 
 each bottle being a likeness of a member, and Pitt 
 with a towel and a bottle under his arm, drawing the 
 cork, the bottle being Sheridan. 
 
 Sir William Pulteney, who was then a very old man 
 and the largest landholder in England except the Duke 
 of Bedford, attacked Pitt's administration, and said 
 he had wasted the public money, that the war was 
 wrong, and our allies had taken our money and de- 
 serted us. Pitt replied: "I may have spent the pub- 
 lic money unfortunately, possibly unwisely, but not 
 corruptly or selfishly. The men who sustained that 
 war did it for the public good, not for personal profit." 
 And pointing his long finger at Sir William, said, "I 
 — never — elbowed — a — tenth — Scotch — cou- 
 sin into office," etc., etc. Sir William arose in a rage 
 and made a furious, incoherent reply. 
 
 Canning had lately been married, and spoke in a 
 white waistcoat and new buckskin gloves. Uncle E. 
 said he saw the dust fly from them as Canning struck 
 his hands together as he arose and before he began. 
 
66 RICHARD HENRY DANA, JR. 
 
 Uncle E. was in the gallery when the famous inter- 
 lude occurred that over-set the gravity of all but the 
 solemn Speaker. There was a long interval of silence, 
 with nothing whatever to do, while the House was 
 awaiting some report. It became tedious and rather 
 embarrassing. At last, a man called out from the 
 gallery, "Mr. Speaker! give us a song!" No one 
 could fully appreciate this who did not know the 
 preternatural gravity of Abbott and the intense dig- 
 nity of the Speaker in those days. The whole house 
 and galleries broke out with laughter, but the Speaker 
 rapped and sent up the officers to arrest the delin- 
 quent. Uncle saw the man who did it, and when the 
 officers came into the gallery, this man pointed 
 towards a respectable, middle-aged Quaker, and the 
 officers took the poor innocent out, neck and heels, 
 and carried [him] before the grand assembly. He 
 protested his innocence, and the mistake was so 
 ludicrously apparent, that the House got into an- 
 other fit of laughter, and the whole thing was dropped. 
 
 In a call on Uncle Edmund [Jan., 1854], he told me 
 another anecdote of Washington, which he had from 
 Grandfather. During the visit at Valley Forge, ^ at 
 the time when the cider was produced, a New Eng- 
 land gentleman at the table told a story which took 
 the fancy of Washington mightily. He lay back in 
 his chair, completely overcome with laughter, and 
 spread his handkerchief over his face. In a few mo- 
 ments, he withdrew his kerchief, and appeared the 
 
 Hon. Francis Dana, grandfather of R. H. Dana, Jr., visited Washing- 
 ton at Valley Forge in 1779, having been appointed by the Continental 
 Congress chairman of the committee on the conduct of the war, with in- 
 structions to proceed to Valley Forge and to report. 
 
CONVERSATIONS WITH UNCLE EDMUND 67 
 
 grave man again; but in half an hour afterwards, this 
 story suddenly came over him and he fell back in 
 his chair again, fairly convulsed with laughter, and 
 it was some time before he recovered his composure. 
 
 This is to be remembered, because it is wrongly 
 said that Washington never laughed. 
 
 He also said that when he was in Virginia, in the 
 Randolph family, he heard an anecdote of Marshall's 
 visit to Mount Vernon. M. was an absent and rather 
 negligent man. He was riding out to Mount Vernon 
 with a party of gentlemen, on horseback, in the fashion 
 of that day, with saddle-bags. When within a mile 
 of the house, they alighted and opened their bags and 
 made some change in their dress. Marshall, it seems, 
 at the last tavern, had, in absence of mind, put over 
 his horse's back the pair of saddle-bags that happened 
 to be nearest to him, and had thus exchanged his for 
 those of a plain farmer going to market; and when 
 the other gentlemen took from their bags, coats, 
 vests, and cravats, Marshall drew out two long 
 squashes, a pumpkin, and some ears of corn. This 
 threw the whole company into a fit of laughter. 
 Just at this moment, Washington drove up, and sa- 
 luted them, and inquired into the cause of the sport, 
 and when they told him in broken language inter- 
 rupted with bursts of laughter, pointing to Marshall 
 and his bags, Washington got off his horse and leaned 
 up against him, hardly able to stand for laughter. 
 
 Note. Substantially the latter story is told in the Life of Judge Jere- 
 miah Smith, and repeated by Mr. Owen Wister in his "Seven Ages of 
 Washington" (p. 94). There are some differences in detail. In the Life 
 of Judge Smith, it is stated that it was a portmanteau instead of saddle- 
 bags, that it belonged to a peddler instead of a farmer, and that Washing- 
 ton "rolled on the ground in his laughter" instead of leaned up against 
 
68 RICHARD HENRY DANA, JR. 
 
 his horse. The story as it appears in Judge Smith's Life was told by the 
 Hon. Joseph Lewis, for thirty years a member of Congress, and who was 
 called by Jefferson "residuary legatee of federalism in Virginia," to Mr. 
 Mason. Mr. Mason told it to Judge Smith, who told it to a lady, who in 
 turn wrote it down the evening after, and years later gave this written 
 account to Mr. Morrison, Judge Smith's biographer. 
 
 That the stories dififer in detail is good proof of substantial accuracy. 
 Too much agreement in detail from different witnesses savors of 
 "cooked-up" if not manufactured evidence, or at least as coming pretty 
 directly from one common source. Note, for example, the differences in 
 the accounts of the same incidents in the Gospels. The main point in 
 these two accounts of this incident of Washington's life is that Washing- 
 ton laughed, and laughed uproariously, at Marshall's plight. 
 
Ill 
 
 THE BIBLE IN SCHOOLS 
 
 [Mr. Dana's argument was in defense of a school committee 
 of a Maine town, that had refused a child permission to attend 
 the local public schools, on the ground that the child refused to 
 be present when the English version of the Bible was being read. 
 The father, a Roman Catholic, was a citizen of the town and 
 a taxpayer, and he brought suit against the committee. 
 
 The defense was that members of a school committee were 
 public officers, that the law and constitution of the State of 
 Maine gave these officers discretion as to what should be read 
 and studied in the schools under them, that the law was clear 
 that "a public officer, exercising a discretion, judicial in its 
 character, cast upon him by law, is not liable to private action 
 for damages unless he acts in bad faith or from malice." Mr, 
 Dana then maintained that, as the Bible had always been read 
 in the public schools of Maine, as the teachers omitted those 
 passages in the Bible in which the translation was contested by 
 the Roman Catholics, and as there was no evidence of special 
 bad faith or malice, the members of the school committee were 
 not liable in damages to the father. 
 
 So much of the argument as regarded the constitution and 
 statutes of Maine at the time (which have since been altered as 
 to the reading of the Bible in the public schools), and the gen- 
 eral doctrine maintained by Mr. Dana as to the personal liabihty 
 of public officers, above stated, I have omitted, and include in 
 this collection only the portion relating to the Bible itself. Mr. 
 Dana suggested that the real remedy for the father, and others 
 who agreed with him, was to appeal to the legislature to change 
 the law, and not to the courts to get damages under existing law. 
 
 Mr. Dana's argument was pubUshed and widely distributed 
 
70 RICHARD HENRY DANA, JR. 
 
 by religious societies, and attracted much attention in the press 
 of the country at the time.] 
 
 It may be said that, in executing the power con- 
 ferred on us by the statutes, we have gone to an un- 
 reasonable length, and so far violated the common 
 rights of the plaintiffs, as to make our course uncon- 
 stitutional. Not conceding that this question is open 
 to the plaintiffs, I take pleasure in meeting it freely 
 and frankly. This is, of all others, the point on which 
 my clients, supported by a unanimous vote of the 
 late town meeting at Ellsworth, desire to meet their 
 opponents. I take the ground, then, that 
 
 [The Bible] has been used in the public schools 
 of Maine since she has been a state, and while a part 
 of Massachusetts, from the beginning. It is not re- 
 quired as an act of religious worship, nor is there any 
 allegation or pretense that doctrinal passages have 
 been selected, or that it has in any way been used as 
 a means of conveying instructions or impressions 
 favorable to the peculiar tenets of any sect or denom- 
 ination of Christians, and unfavorable to those of 
 others, or that the passages in which the two trans- 
 lations differ have ever been read in the school. The 
 defendants do not put their case upon the ground 
 that they, have a right to compel the reading of the 
 Bible as a means of teaching the principles and facts 
 of a revealed religion, in which many, as Jews, Mo- 
 hommedans, and skeptics of all shades, do not believe; 
 still less, the reading of this particular version, to 
 which Roman Catholics, and other denominations 
 of Christians, may object. The objection is to the 
 use of the book at all. The Bible is a collection of 
 books, sixty-six in number, the work of different 
 writers, on various subjects, written at very remote 
 
THE BIBLE IN SCHOOLS 71 
 
 periods of time, first called The Bible, The Book, 
 by St. John Chrysostom at Constantinople, in the 
 fifth century. In this collection there are portions 
 historical, portions purely narrative, portions poeti- 
 cal and imaginative, portions conveying by precept 
 and parable moral lessons. As to all these portions, 
 there is no contest on the point of translation. In- 
 deed, there are only some half-dozen places in the 
 whole collection in which the Douay Bible makes 
 a dogmatic and doctrinal issue with the common 
 English Bible. And, forsooth, this entire book, the 
 noblest monument of style, of thought, of beauty, of 
 sublimity, of moral teaching, of pathetic narrative, 
 the richest treasury of household words, of familiar 
 phrases, of popular illustrations and associations, that 
 any language has ever possessed, is not to be read in 
 schools, because the parents differ in opinion as to the 
 translation of Merai^oT/crare. The contested passages 
 have never been, so far as appears, read in the school, 
 but the entire book, the whole sixty-six books, nar- 
 rative, parable, history, moral law, psalms and spirit- 
 ual songs, prophecy, all are to be banished, because 
 somewhere, in some epistle, in a place never read in 
 school, "repent" is not rendered "do penance"! 
 Need I ask your Honors if our act is unreasonable.'^ 
 Is not the objection far more unreasonable.'* 
 
 What can these defendants do.'* They are obliged 
 by law, they have no option, to see to it that the 
 principles of morality and all the virtues shall be 
 taught in the schools. They are to "take diligent 
 care and exert their best endeavors " that these prin- 
 ciples be impressed on the minds of the children and 
 youth. The public-school system was intended to 
 provide, as Chief Justice Shaw said, in Sherman v. 
 
72 RICHARD IIKNUV DANA, MX. 
 
 (V/(?/7(>7()/r//, "a sysloni of moral Iraiiiiiig as well as 
 soniiuarlos of loariiing." How can, principles of mo- 
 ralily bo taught oxcopt on the basis of religion? A 
 systoiu o( morality, not t'omuled on religion, is not 
 morality, but only an enlightened self-interest. AVhalely 
 says that the maxim "honesty is the best policy" 
 is a true maxim, bnt that he who acts upon that 
 maxim (Hily, is not an honest man. So is it with what 
 is called morality, divorced from religion. 
 
 Bnt our opponents may say that they do not object 
 to the Hible, bnt to the translation. AVe cannot read 
 the original in the seluH>ls. This is the common Eng- 
 lish Bible, which has always been used. It is not a 
 *' Protestant Bible." Great portions of the transla- 
 tions w ere made by men in the bosom of the General 
 Chnrch, before the Befin-mation, by AYicklitVe, Tyn- 
 dale, Coverdale, and ALatthew. Testimony to its 
 accuracy has been borne by learned men of the Ixoman 
 Church. Leddes calls it "of all versions the most ex- 
 cellent for accuracy, fidelity and the strictest atten- 
 tion to the letter of the Text"; and Selden calls it 
 "the best version in the world." As a well of pure 
 English undefiled, as a fountain of pure idiomatic 
 English, it has not its equal in the world. It was for- 
 tunately — may we not, without presumption, saj^ 
 providentially — translated at a time when the Eng- 
 lish language was in its purest state. It has done 
 more to anchor the English language in the state it 
 then was, than all other books together. The fact 
 that so many millions of each succeeding generation, 
 in all parts of the w orld where the English language 
 is used, rend the same great lessons in the same words, 
 not only keeps the language anchored where it was 
 in its best state, but it preserves its universality, and 
 
frees it from all material provincialLsms and j:)crfo^^, 
 so that the same words, phrase.s, and idioms are 
 used in Loudon, Xev, ^'ork, San I'raneiseo, Aiistralia, 
 China, and India. 7'o preserv'e this unity and stead- 
 fastness, the Book of Common Prayer has done much, 
 Shakespeare, Milton, and Bunyan have done much, 
 but the English Bible has done tenfold more than 
 they alL 
 
 From the common English Bible, too, we derive 
 our household words, our pPirases and ilbistrations, 
 the familiar speech of the ijeofjle. Our associations 
 are with its narratives, its parables, its histories and 
 its biographies. If a man knew the Bible in its origi- 
 nal Greek and Hebrew by heart, and did not know 
 the common English version, he would be ignorant 
 of the s-i>eech of the people. In sermons, in public 
 .speeches, from the p»ulpit, the ?jar, and the jjlatform, 
 would come allusions, references, quotations, — that 
 exquisite electrifying by conductors, by which the 
 heart of a whole jjeople is touched by a word, a phrase, 
 in itself nothing, but everj-thing in its power of con- 
 ducting, — and all this would be to him an unknown 
 world. No greater wrong, intellectually, could be 
 inflicted on the children of a school, ay, even on the 
 Roman Catholic children, than to bring them up in 
 ignorance of the English Bible. As well might a 
 master instruct his pupil in Latin, and send him to 
 .sjjcnd his days annong scholars, and keep him in 
 ignorance of the words of Virgil and Horace and 
 Cicero and Terence and Tacitus. As a preparation 
 for life, an acquaintance with the common English 
 Bible is indispensable. 
 
 The Douay Bible, on the other hand, was trans- 
 lated on the Continent, by men of English origin, 
 
74 RICHARD HENRY DANA, JR. 
 
 it is true, but who, banished from England by 
 the Protestant persecutions, were not Englishmen in 
 speech, in literature, in association, or in habit. The 
 English ecclesiastics of the Roman Church, even to 
 this day, in style and speech, as in habit and feeling, 
 are un-English. Their literature, their training, their 
 associations, are Continental. Much more so was it 
 then, when England was closed against them. Their 
 translation suffered accordingly. Where it does not 
 agree with the common Bible, it is comparatively a 
 piece of awkward, unidiomatic English. Even where 
 its style may have been as good originally, the lan- 
 guage has settled upon our basis, and not upon theirs. 
 Even among Romanists themselves, it does not fur- 
 nish the household words, the popular phrases, the 
 illustrations and associations known to the people 
 and cherished by their orators and scholars. One of 
 those who has forsaken the communion of the Eng- 
 lish Church has expressed himself in deeply touching 
 tones of lamentation over all which, in forsaking our 
 translation, he feels himself to have forgotten and 
 lost. These are his words : — 
 
 "Who will not say that the uncommon beauty and 
 marvelous English of the Protestant Bible is not one 
 of the great strongholds of heresy in this country.^ It 
 lives on the ear, like a music that can never be for- 
 gotten, like the sound of church bells, which the con- 
 vert hardly knows how he can forego. Its felicities 
 often seem to be almost things rather than mere 
 words. It is part of the national mind, and the an- 
 chor of national seriousness. . . . The memory of 
 the dead passes into it. The potent traditions of child- 
 hood are stereotyped in its verses. The power of all 
 the griefs and trials of a man is hidden beneath its 
 
THE BIBLE IN SCHOOLS 75 
 
 words. It is the representative of his best moments, 
 and all that there has been about him of soft and 
 gentle, and pure and penitent and good, speaks to 
 him forever out of his English Bible. ... It is his 
 sacred thing, which doubt has never dimmed, and 
 controversy never soiled. In the length and breadth 
 of the land there is not a Protestant with one spark 
 of religiousness about him, whose spiritual biography- 
 is not in his Saxon Bible." 
 
 Throwing dogmatic theology out of the question, 
 can any one doubt that the real question here is, 
 not whether each child shall choose its version, but 
 whether the Bible shall be read at alLf^ There are 
 various translations. The Romanist thinks ixerapoeo} 
 wrongly translated. The Unitarian thinks there are 
 mistranslations and interpolations favoring the doc- 
 trine of the Trinity. The Baptist thinks that ^aTrrt^co 
 should be translated iiiwieise. And all of these have 
 their translations. But all have heretofore agreed 
 that the common English Bible should be read in the 
 schools. If one is to insist on his version, another will 
 on his. Confusion and scandal will be introduced, 
 and few school committees or teachers will trouble 
 themselves to enforce such a motley system as that. 
 Besides, if there is a conscience against reading a dan- 
 gerous book, will there not be equally a conscience 
 against hearing it read.^^ But if there is a conscience 
 in the Papists against hearing ixerapoeco called "repent," 
 will there not be a conscience in the Protestant 
 against hearing it called "do penance".^ No, may 
 it please your Honors, until a uniform translation 
 can be agreed upon, carefully avoiding controverted 
 passages, as we have done, the Bible will not be read 
 in the schools at all. And I feel that I am pleading 
 
76 RICHARD HENRY DANA, JR. 
 
 here, to-day, for the Bible in the schools, and not on 
 any question of option or choice in translations. If 
 the Bible is not read, where so well can *'the prin- 
 ciples of morality and all the virtues" be taught? 
 "How infinitely superior," says Maurice, "is a gospel 
 of facts to a gospel of notions!" How infinitely su- 
 perior to abstract ethics are the teachings of the nar- 
 ratives and parables of the Bible ! What has ever taken 
 such hold on the human heart, and so influenced hu- 
 man action! The story of Jacob and Esau, the un- 
 equaled narrative of Joseph and his brethren, Abra- 
 ham and Isaac, the pathetic and romantic story of 
 Saul, the death of Absalom, Naaman the Syrian, the 
 old prophet, the wild, dramatic, poetical histories of 
 Elijah and Elisha, the captivities of the Jews, the 
 episode of Ruth, unsurpassed for simple beauty and 
 pathos, and time would fail me to tell of Daniel, Isaiah, 
 Samuel, Eli, and the glorious company of the apostles, 
 the goodly fellowship of the prophets, and the noble 
 army of martyrs! Where can a lesson of fraternity 
 and equality be struck so deeply into the heart of a 
 child as by the parable of Lazarus and Dives? How 
 can the true nature and distinction of charity be bet- 
 ter expounded than by the parables of the widow who 
 cast her mite into the treasury, and the woman with 
 the alabaster box of precious ointment? Can the prod- 
 igal son, the unjust steward, the lost sheep, ever be 
 forgotten? Has not the narrative of the humble birth, 
 the painful life, the ignominious death of Our Lord, 
 wrought an effect on the world greater than any and 
 all lives ever wrought before? — even on those who 
 doubt the miracles, and do not believe in the Mys- 
 tery of the Holy Incarnation, and the Glorious Res- 
 urrection and Ascension! 
 
THE BIBLE IN SCHOOLS 77 
 
 Remember, too, we entreat you, that it is at the 
 school alone, that many of these children can read 
 or hear these noble teachings. If the Book is closed to 
 them there, it is open to them nowhere else. 
 
 Nor would I omit to refer to the reading of the 
 Bible as apart of the education of the fancy and imagi- 
 nation. Whatever slight may be thrown upon these 
 faculties by men calling themselves practical men, 
 they are powerful agents in the human system, which 
 no man can neglect or abuse with impunity. Pre- 
 occupy, preoccupy the minds of the young with the 
 tender, the beautiful, the rhythmical, the magnifi- 
 cent, the sublime, which God in his bounty, and wis- 
 dom too, has poured out so profusely into the minds 
 of his evangelists and prophets! Nowhere can be 
 found such varieties of the beautiful and sublime, 
 the magnificent and simple, the tender and terrific. 
 And all this is brought to our doors, and offered to 
 our daily eye. If the mind of the youth, girl and boy, 
 is not preoccupied by what is moral, virtuous, and re- 
 ligious, the world is ready to attack the fancy and 
 imagination with all the splendors and seductions 
 of sense and sin. Their minds will have food for the 
 imagination and fancy, and if they are not led to the 
 Psalms, and Isaiah, and Job, and the Apocalypse, 
 and the narratives and parables, they will find it in 
 Shelley, Byron, Rousseau, and George Sand, and the 
 feebler and more debased novels of the modern press 
 of France. 
 
 Following then the guidance of the statute, and 
 acting in good faith, with no sectarian object alleged 
 or offered to be proved against us, we trust we have 
 made no unreasonable use of authority, in declining 
 to remit the requirement of reading the common Bible. 
 
IV 
 
 SPEECH ON THE JUDICIARY; MASSACHU- 
 SETTS CONSTITUTIONAL CONVENTION 
 OF 1853 
 
 [In the Biography of Mr. Dana, Mr. Adams says of the Con- 
 stitutional Convention: "Among its members were many of the 
 principal Massachusetts public characters of the time, including 
 Charles Sumner, Rufus Choate, Henry L. Dawes, Robert Ran- 
 toul, Henry Wilson, Sidney Bartlett, Benjamin F, Butler, and 
 both the Marcus Mortons, the father who had been governor, 
 and the son who was subsequently chief justice. The convention 
 was presided over by N. P. Banks. Though it was Dana's first 
 appearance in a deliberative body, he at once came to the front. 
 Indeed, there was no man in the convention who rose more 
 rapidly or into greater prominence as a debater than did Dana." 
 
 This speech is the most celebrated of Mr. Dana's in the con- 
 vention, and has been reprinted several times when the question 
 of the appointment and tenure of judges has come up in other 
 states. Of this speech, Rufus Choate, who was present and heard 
 it, said, "It has been magnificent. It is philosophical, affecting, 
 brilliant, logical, everything." 
 
 As matters stood then in Massachusetts, the judges w^ere ap- 
 pointed by the governor and council for life. The issue, as Mr. 
 Dana puts it in his journal at the time, is as follows: "At the 
 committee. Governor Morton, Chairman, reported it inexpedient 
 to make any change in the appointment or tenure of judges. 
 Wilson moved an amendment to limit the term to ten years, 
 they being all nominated by the governor. Dr. Hooker moved 
 to amend that by making them elective by the people for terms 
 of seven years. On these together came the debate." 
 
 In the early days, all the judges of the thirteen states were 
 
SPEECH ON THE JUDICIARY 79 
 
 appointed substantially in the same manner as in Massachusetts; 
 but gradually in the fifties most of the states changed this 
 method, usually with a view of " diminishing executive patron- 
 age." As it stands to-day (1910) in Massachusetts, Delaware, 
 Maine, New Hampshire, and for the United States federal courts 
 and the courts of the territories and the District of Columbia, 
 as in England, all the judges are appointed by the chief execu- 
 tive. In Connecticut, Mississippi, and New Jersey, the judges 
 of the highest court are appointed by the governor, — subject 
 to confirmation by the senate in Mississippi and New Jersey, and 
 by the legislature in Connecticut. In Rhode Island, South Caro- 
 lina, Virginia and Vermont, the judges of the highest court are 
 elected by the two houses of the legislature in joint convention. 
 All other state judges are elected by the people. The terms of 
 office vary from life-tenure in the federal courts, Massachusetts, 
 New Hampshire, and Rhode Island, through periods varying 
 from twenty-one years in Pennsylvania to two years in Vermont. 
 The usual terms are six years for the highest courts and four 
 years for the lower courts. Therefore, it is only in Massachu- 
 setts and New Hampshire, and in the federal courts, that the 
 judges are both appointed by the executive and hold oSice for 
 life.^ 
 
 The attempt to take the patronage out of the hands of the 
 executive has only transferred the patronage to the party ma- 
 chines; so that in New York, for example, the judicial candi- 
 dates are subject to large assessments for party purposes, usu- 
 ally equivalent to a whole year's salary, by the dominant party 
 of the judicial district. ^ The state bar associations in many 
 states, for example, in New York, have been active in suggesting 
 nominations and courageous in openly opposing bad ones, and 
 this alone has kept the bench as efficient as it is under the elec- 
 tive system.^ 
 
 ^ See Constitutions of the United States, Frederic J. Stimson (1908), 
 book iii, section 654. 
 
 ^ American Law Review, vol. xxii, p. 766. 
 
 ' For examples of the subserviency of judges to the ruling powers in 
 politics under an elective judiciary system, see "The Beast and the Jun- 
 
80 RICHARD HENRY DANA, JR. 
 
 The New York State Bar Association has a standing commit- 
 tee "On the Selection for Judicial Office " with representation 
 from each of the nine judicial districts. In Pennsylvania, on the 
 authority of the Hon. William H. Hornblower, of New York, when 
 addressing the State Bar Association of Massachusetts, no judge 
 can be nominated by the predominant party unless he is approved 
 of by the great railroad of the state. After years of experimenting 
 with other methods in other states, almost every eminent lawyer 
 throughout the country says that the Massachusetts system, for 
 which Mr. Dana spoke, is far the best. 
 
 Mr. Dana's speech had the effect of defeating the proposition 
 of electing the judges; but the proposition for appointment by 
 the governor and council for a term of years was adopted by 
 the convention. It was this latter proposition which was the 
 chief cause of attack on the Constitution proposed by the con- 
 vention, and led to its defeat by a majority of about 6000 in a 
 total popular vote of 125,000.] 
 
 Mr. President: I suppose the Convention will 
 agree with me, without argument, that the sub- 
 ject which we are now upon is one of more enduring 
 interest, and more universal concernment, than any 
 that has been before us. It often happens, I may say 
 it usually happens, that those subjects which are 
 followed by the most serious consequences are not 
 those which attract at the moment the greatest at- 
 tention. They come often, like the kingdom of 
 Heaven itself, without observation. So it would be 
 if we should make this great fundamental change in 
 our Constitution without full consideration. 
 
 Why, Mr. President, we propose to change one 
 of the great organic departments of the government. 
 The government of Massachusetts is divided into 
 three departments, the legislative, the executive, 
 
 gle," by Ben B. Lindsey, of Denver, Colorado, in Everybody's Maga- 
 zine, 1909-10. 
 
SPEECH ON THE JUDICIARY 81 
 
 and the judicial. The feature which most charac- 
 terizes the judicial department is the manner in which 
 it obtains and holds its power, and that we propose 
 to change essentially. A system which has existed 
 in England from the birth of liberty to the present 
 time ; a system which has existed in Massachusetts from 
 the origin of the state to this hour; a system which 
 has existed in our national government from the be- 
 ginning; a sj^stem which exists in nearly all New 
 England, and in almost all of the states of the Union ; 
 a system under which our judiciary has grown up, and 
 under which every man in the United States of Amer- 
 ica has grown into manhood, — for those changes 
 which have been made have not yet reared a genera- 
 tion, — that system you threaten to subvert. And 
 why.^ I ask, why.^^ 
 
 It was said here when we came together, and it 
 met the approbation of the Convention, and it has 
 since been repeated frequently by judicious men, 
 that we should make no changes unless there was 
 some abuse. Is it not a fundamental maxim of 
 America that no change should be made until you 
 find an existing evil to be remedied.^ After achieving 
 our independence, though smarting under the tyranny 
 of England, almost hating the very name and sight 
 of an Englishman, we yet adopted a Constitution 
 very like that of England, more like it than any other 
 that ever existed. Why.^ Because it was formed out 
 of institutions which stood here. I take the liberty 
 to say that the American system is this: a system 
 which recognizes existing institutions; a system of 
 adaptation ; a system of reforming abuses. The Ameri- 
 can system is not to speculate, not to theorize, not 
 to make experiments in government, but to take 
 
82 RICHARD HENRY DANA, JR. 
 
 things as we find them, and adapt ourselves to them; 
 to recognize the state of society and then make re- 
 forms where there are evils to be reformed. Now I 
 ask how, this being our philosophy, do you propose 
 to treat the judicial department.'^ In the first place, 
 is there any abuse existing .^^ Has any man heard of 
 an abuse.^ I have not heard of it. Has it been said 
 in this Commonwealth that the judicial department 
 has encroached upon the executive.^^ I have never heard 
 it. Has it been said that the judiciary has encroached 
 upon the legislative department .^^ Has it been said 
 that the judicial department is oppressing the people.^ 
 Nobody has ever whispered it. Has there been a pe- 
 tition to the legislature to change the Constitution 
 in that particular.^ Petitions on other subjects have 
 been presented; but I do not know of a single instance 
 where a petition has been presented to either branch 
 of the legislature, asking them to change the judi- 
 ciary department. Is there a gentleman in this Con- 
 vention who knows of an instance.'^ Is there any in- 
 dication of a popular wish that this should be done.'' 
 You may read articles in the newspapers written by 
 one man; but have we any indication that the public 
 wishes any change here.'' I have looked in vain for 
 any indication of the kind. 
 
 As regards offices, two things were proposed to 
 be done: to elect certain officers, not being judges, 
 and to diminish and not increase the power and pa- 
 tronage of the executive. We have, then, the voice 
 of a majority of the legislature in 1852, and the voice 
 of two of the great parties in 1853, in favor of this 
 Convention; and I look in vain for the slightest in- 
 dication of any intention to change the tenure of the 
 judicial department. I do not wonder, therefore, 
 
SPEECH ON THE JUDICIARY 83 
 
 that my friend from Natick (Mr. Wilson) said yes- 
 terday that he could not vote for an elective judi- 
 ciary without an appearance of something like bad 
 faith. He told this Convention, and he told them 
 truly, that by his addresses and speeches, and by the 
 one hundred and fifty letters — I sympathize with 
 him — which he had written to all parts of the Com- 
 monwealth on the subject of this Convention, he 
 was so committed against an elective judiciary that 
 he could not sustain it here. But he does not stand 
 alone. If there is any gentleman of prominence 
 enough to be noticed, who has gone into one town of 
 Massachusetts, and presented the case of this Con- 
 vention, and included in the issue an elective judi- 
 ciary, I should like to know who and where he is. 
 Every gentleman to whom I have spoken has told 
 me that he has done no such thing, but quite the con- 
 trary, — that he has studiously avoided raising that 
 issue. 
 
 Let us recollect the history of this Convention. 
 In 1851 the proposition for a Convention was re^ 
 jected by a majority of some four thousand, and it 
 was very doubtful whether it would be adopted in 
 1852. It was therefore necessary to conciliate all 
 persons. I do not wish to state it upon my own 
 knowledge, but I put it to the honor of every man, 
 whether this question of a Convention was not put 
 to the people last November upon an understanding 
 that the judiciary should not be changed; whether 
 there were not thousands of votes obtained through- 
 out the state for this Convention, which would not 
 have been given if it had been understood that an 
 attack was to be made upon the judiciary system .^^ 
 I confess that is not precisely the appearance with 
 
84 RICHARD HENRY DANA, JR. 
 
 which I should wish to see so great a change auspi- 
 cated. 
 
 But I do not confine myself to the subject of an 
 elective judiciary, for there are two propositions: the 
 one is to make it elective, and the other is to limit 
 the tenure of office. 
 
 The twenty-ninth article of the Bill of Rights 
 says : — 
 
 "It is essential to the preservation of the rights 
 of every individual, his life, liberty, property and 
 character, that there be an impartial interpretation 
 of the laws and administration of justice. It is the 
 right of every citizen to be tried by judges as free, 
 impartial and independent as the lot of humanity 
 will admit. It is therefore not only the best policy, 
 but for the security of the rights of the people, and 
 of every citizen, that the judges of the supreme ju- 
 dicial court should hold their offices as long as they 
 behave themselves well." 
 
 Now, I say, the amendment of the gentleman from 
 Natick (Mr. Wilson) ^ is fundamental in its charac- 
 ter; because it changes a provision which has existed 
 since 1780, and which, since 1780, we have declared 
 to be essential to the security of the rights of the 
 people and of every citizen. He proposes to place 
 the judicial department more or less under the con- 
 trol and patronage of the executive. 
 
 Now, Sir, did it ever happen that such fundamental 
 changes were made by the representatives without 
 some notice of a desire upon the part of the people 
 that they should be made.^^ Do such changes come 
 
 For the appointment of the judges of the Supreme Judicial Court 
 for terms of ten years, and of the justices of the Superior Court for 
 terms of seven years. 
 
SPEECH ON THE JUDICIARY 85 
 
 from the people with no note of preparation, no pe- 
 tition, no resolution, no speech, no public meeting, 
 no signature, no address, with no man daring to open 
 his mouth in a public meeting and speak for them? 
 Was there so great a public demand for the change, 
 such a rush of public sentiment, calling for the 
 change, and yet five months ago the boldest dare not 
 advocate it before the people? 
 
 Now, Sir, I am not particularly incredulous. My 
 temperament rather inclines me to superstition than 
 to skepticism, but it would require greater credulity 
 than mine to believe that there is such a demand. 
 If there be, the secrecy of it is one of the miracles of 
 the nineteenth century. It is very difficult to be- 
 lieve that, if such is the fact, even my friend from 
 Natick, who feels the popular pulse better than most 
 of us, should not have felt a single throb last Novem- 
 ber, nor a single throb last February, and yet that 
 the public is now, with a fevered excitement, calling 
 for this great change. I cannot believe it. 
 
 Why, Mr. President, what is the nature of the 
 amendment proposed? I have said it was fundamen- 
 tal in its character, and to be sure it is. The judicial 
 department, as it exists here, is a peculiarity of re- 
 publican institutions. They have a judiciary in 
 England, but they have it under very different cir- 
 cumstances from ours in the United States. The ju- 
 diciary of England has no control over the acts of 
 parliament. They have no right to pass upon any 
 act of parliament and compare it with the Constitu- 
 tion. They have no constitution there except as an 
 idea, — they have no written or legal constitution. 
 But in this country the judiciary passes upon the 
 validity of the acts of the legislature. It is a coordi- 
 
86 RICHARD HENRY DANA, JR. 
 
 nate as well as independent department of the gov- 
 ernment. Yet, even in England, where they have 
 not the same motive for making it independent, they 
 have guarded it in every possible way. 
 
 You know, Mr. President, that up to the time of 
 the Revolution, in 1688, the judges were dependent 
 upon the crown for their appointment and for their ten- 
 ure. The crown removed a judge whenever it pleased, 
 and therefore, the judges being dependent upon the 
 crown, the people could not have as fair and impar- 
 tial a tribunal as the lot of humanity would admit. 
 After the Revolution, a clause was introduced into 
 the Bill of Rights that the judges should hold their 
 oflSces so long as they behaved themselves well — 
 not a life-tenure, for it is not the same thing, but so 
 long as they behaved themselves well. They were 
 liable to be removed by impeachment for misconduct 
 official, or by the address of parliament for miscon- 
 duct unofficial, or for any other cause. They were 
 made responsible in an eminent degree, but they were 
 made independent. They, however, went out upon 
 what is technically called the "demise of the crown": 
 that is, when the king died. This is very much such a 
 rule as the gentleman from Natick proposes, that upon 
 the demise of the executive, which is once a year, 
 one or more judges shall be placed at the mercy of 
 the crown. He provides that six judges shall go out 
 in ten years, which, allowing for deaths, resignations, 
 etc., would make about one a year, so that one judge 
 of your supreme court, every year, will be at the 
 mercy of the crown. Now in England they thought 
 that was wrong. It left still a high degree of inde- 
 pendence to the judiciary. As long as the king lived, 
 the judges were absolutely independent of him. 
 
SPEECH ON THE JUDICIARY 87 
 
 The judge had his salary, he had his oiBfiee, and he 
 held them entirely independent of the will of the 
 king. But, then, each judge would feel that it might 
 be that the king would die during his term of office, 
 in which case, for one moment his office would be at 
 the mercy of the crown. It might not be, and again 
 it might be, that the king would die during his term 
 of office. To prevent this chance affecting his impar- 
 tiality, when George III ascended the throne, at his 
 majesty's own suggestion, a law was passed provid- 
 ing that the judge's commission should survive the 
 demise of the crown, so that in no case could the 
 commission of the judge be placed at the mercy of 
 the crown. 
 
 Mr. Butler,^ of Lowell (interrupting). I desire 
 to ask the gentleman a single question. Was not the 
 reason for the adoption of the law in England, to which 
 he has just alluded, because upon the death of the 
 king some time would elapse in the coronation of his 
 successor, and in starting him in his government, in 
 which, unless some such provision was made, there 
 might be a failure in the administration of justice.^ 
 
 Mr. Dana. No, sir; that was not the reason. The 
 reason given by the king was in these words, because 
 "the independence of the judges is essential to the 
 impartial administration of justice, best for the se- 
 curity of the liberties and rights of my subjects, and 
 most conducive to the honor of the crown." 
 
 Now, I want the people of Massachusetts to-day 
 to be as magnanimous as that. We have the power 
 — the people of Massachusetts have the power — to 
 ^ Benjamin F. Butler. 
 
88 RICHARD HENRY DANA, JR. 
 
 elect their judges every month or every year, if they 
 choose, but I want them to come forward and show 
 no less magnanimity than was shown by George III. 
 I want them to recognize and act upon the principle 
 that the "independence of the judiciary is essential 
 to the impartial administration of justice, best for the 
 security of the liberties and rights of the citizens, and 
 most conducive to the honor of the state." Therefore 
 let us surrender, as a people, that prerogative. Let 
 us put upon us this self-restraint. There is no 
 greater virtue in a free people than the willingness 
 to exercise self-restraint. 
 
 When gentlemen tell me they are not afraid to trust 
 the people, — and that is the favorite cry here : trust 
 the people ! trust the people ! — I must say to them, 
 that is not the issue. The question is. Will not the 
 people who have got the power impose upon them- 
 selves some self-restraint.^ Is not that essential to 
 republican government.'^ Cicero once said that the 
 Athenian Republic could no more exist without the 
 Areopagus than the world could exist without the 
 providence of God. Now, sir, a constitutional govern- 
 ment can no more exist without a power to assert 
 the supremacy of the Constitution than the world 
 can exist without the providence of God. 
 
 Sir, what is a Constitution.^ Why are we here, in 
 a Convention, to revise one.*^ Why are we taking the 
 time and money of the Commonwealth, and our own, 
 to make a Constitution? Is it not enough to have 
 judges, legislatures, and governors? The legislature 
 is elected by the people, and why not trust the peo- 
 ple? Why have a Constitution at all? Why not trust 
 the people? I put it to those gentlemen, who ask me 
 why I will not trust the people to elect our judges. 
 
SPEECH ON THE JUDICIARY 89 
 
 to tell me why they do not trust the people to make 
 our laws? You do not do it. The most radical man 
 in this Convention would not trust the people to make 
 the laws; but by our own will we impose upon our- 
 selves a restraint. In the exercise of judgment, 
 prompted by humanity and a sense of justice, we say 
 we will make no laws except within the range and 
 limit of that Constitution. And, further than that, 
 we not only take care to say that we do not intend to 
 do it, but we take care to provide against any possi- 
 bility of our doing it. We provide a tribunal and give 
 it the power of deciding, when we have passed a law, 
 whether that law is in accordance with the Constitu- 
 tion or not. That is what the people do in making a 
 Constitution; and when it is made, when our labors 
 go out to the people and are ratified by them, the peo- 
 ple take care that the Constitution shall not be changed 
 except through a laborious, complex, and difficult 
 process. 
 
 The legislature comes together every year, elected 
 by the people, and makes laws. The government exe- 
 cutes those laws. But notwithstanding all that, the 
 poorest man in the Commonwealth — one man alone 
 against the whole people of Massachusetts — can set 
 those laws at defiance if they are not made in pursu- 
 ance of the Constitution. The poorest woman, the 
 alien, the infant in its cradle, is protected against the 
 will of the majority of the people of Massachusetts. 
 The foreigner, whoever he may be, barbarian, Scyth- 
 ian, bond or free, may assert and maintain a consti- 
 tutional right against the will of the majority of the 
 people of Massachusetts. 
 
 Now I ask if it is not the feature that distinguishes 
 our republican government, that an individual has 
 
90 RICHARD HENRY DANA, JR. 
 
 some rights against the powers that be — that the 
 minority have some rights against the majority — 
 that one man has rights which he may assert against 
 the people? That is the great and honored distinc- 
 tion, and how are you to preserve it? It is not enough 
 to say that it shall be preserved. There must be a 
 power to preserve. That power is the judiciary. Every 
 act passed by the legislature must undergo the scru- 
 tiny of that tribunal, and if it is not in pursuance of 
 that higher law of the Constitution, it must be set 
 aside. And for that reason, chiefly, I wish to have 
 that judiciary made independent. Does not the es- 
 sential theory of our government require it? It must 
 be independent of the executive, otherwise he will 
 execute the laws as he pleases. It must be independ- 
 ent of the legislature, otherwise they will make such 
 laws as they please. I have a right to demand that 
 the governor shall not execute such laws as he pleases, 
 but only such as the Constitution allows. I have a 
 right to say that the majority of the people, upon 
 sudden popular impulse, shall not do just what they 
 choose to do, but only what the Constitution allows. 
 If the majority of the people of Massachusetts, by 
 any sudden caprice or passion, should insist upon 
 taking my life or liberty or my property, without 
 due process of law, I wish to be protected against it. 
 Mr. President: I can protect myself against one 
 man, alone. The majority can always protect itself, 
 but a single man needs to be protected against the 
 multitude. The minority needs protection against 
 the majority. And how can that be had, unless you 
 establish a tribunal above the mere will of the ma- 
 jority? If you constitute the supreme court as that 
 tribunal, how can it accomplish that purpose unless 
 
SPEECH ON THE JUDICIARY 91 
 
 you make it independent, not only of the executive, 
 but of the legislature and of the temporary will of 
 the majority of the people. 
 
 I have heard it said, and I think it has been said 
 by some one upon this floor, that our ancestors, John 
 Adams, John Hancock, and those who made the Con- 
 stitution of 1780, blindly followed the English prece- 
 dent, and adopted an independent judiciary as they 
 found it in England, where it was made independent 
 to prevent the encroachments of the crown, and that 
 they had sought to make it independent here, where 
 the same reason does not exist. Now, sir, I undertake 
 to say, not upon my own judgment alone, but upon 
 the judgment of the soundest men in this republic 
 whoever have written or spoken upon this subject, 
 that an independent judiciary is more important in a 
 republic than it is in a monarchy. Sir, I repeat, with- 
 out fear of intelligent contradiction, that an independ- 
 ent judiciary is more important in a republic than 
 in a monarchy. And why.^ In a monarchy, you may 
 always appeal from the sovereign to the people. In 
 a monarchy, the power is lodged with the sovereign, 
 and you may always appeal from him to the people, 
 even if the judiciary is false. But I ask you, in this 
 country, where the people are sovereign, to whom is 
 a man to appeal from the people.'' Where does 
 an appeal lie, this side of Heaven, from the majority 
 of the people.^^ Suppose a popular majority carry 
 through the legislature a law which infringes upon 
 the rights of an individual: I ask any gentleman 
 to tell me where that man's appeal lies against the 
 will of the popular majority.^ Sir, it lies nowhere 
 unless we can have a judiciary independent of the 
 changes of a popular majority. We can have no pro- 
 
92 RICHARD HENRY DANA, JR. 
 
 tection for the Constitution unless we make inde- 
 pendent our guardian, the judiciary, which is to say 
 whether a law is constitutional or not, and say whe- 
 ther the executive executes that law constitutionally 
 or not. If we go from hence, not leaving behind us 
 an independent judiciary, our labor in this Conven- 
 tion is in vain. 
 
 Having spoken of the history of this institution 
 in England, I wish to call the attention of the Con- 
 vention, one moment, to the history of the institution 
 in America. In 1780 our ancestors adopted their 
 State Constitution, in which they declared it was 
 essential that the judges should hold their offices as 
 long as they behaved themselves well. I wish to know 
 if John Adams and James Bowdoin and John Han- 
 cock, who made the Constitution of 1780, with hal- 
 ters about their necks, followed blindly the English 
 precedent.'^ I wish to know if they did not feel, as 
 keenly as we do to-day, that they were exempt from 
 English precedents.'^ They did understand that mat- 
 ter fully. They knew that in a republic there was no 
 appeal from the sudden action of the sovereign peo- 
 ple, unless to a judiciary; whereas in a monarchy 
 there is an appeal from the sovereign to the people. 
 They knew that we had a Constitution which the 
 judiciary must pass upon; whereas in a monarchy 
 they have no constitution for any judiciary to pass 
 upon. For these two reasons, they saw that it was 
 even more important to have an independent judi- 
 ciary in a republic than in a monarchy. Such is the 
 language of Chief Justice Marshall, of Story, Kent, 
 Hamilton, Jay, and Madison. 
 
 When the Constitution of the United States was 
 formed, the resolution giving the judges a tenure dur- 
 
SPEECH ON THE JUDICIARY 93 
 
 ing good behavior passed by an unanimous vote. As 
 much as they differed on all other subjects, when they 
 came to the question of an independent judiciary and 
 the good-behavior tenure, there was an unanimous 
 vote of the Convention in its favor. That system has 
 continued from that time to the present day. Such, 
 too, is the Constitution of New Hampshire, of Con- 
 necticut, and of many other states of the Union. In 
 Rhode Island, it is substantially the same. I grant 
 you that the experiment of an elective judiciary, for 
 short terms, is in the course of trial in several states. 
 It has not yet been tried, for you cannot try an ex- 
 periment of this sort until a whole generation has 
 grown up under it. That has not been done. We 
 have grown up under an independent judiciary. Our 
 noble institutions — the security of life, liberty, and 
 property here — have been acquired under an inde- 
 pendent judiciary. The experiment of a (impendent 
 judiciary has not been tried through one generation, 
 or anything like it. It has been tried to some extent 
 in New York and Maryland. I think the gentleman 
 from Natick (Mr. Wilson) was quite right in saying 
 that judicious persons from New York had advised 
 us not to try the experiment of an elective judiciary 
 in Massachusetts. 
 
 I hold in my hands a letter from an eminent lawyer, 
 in which he says: "It is short of the truth to say that 
 their united influence (election and short terms) has 
 brought our judiciary into decline and decay." I have 
 another letter, from one of the most distinguished 
 men of the United States, resident in Maryland, who 
 says: "It is generally admitted, in this state, I be- 
 lieve, that the change in our system has altogether 
 disappointed the promises of its authors, and that if 
 
94 RICHARD HENRY DANA, JR. 
 
 it could now come before the voters of the state, as 
 an isolated question, it would be rejected by an im- 
 mense majority." 
 
 There are gentlemen in this Convention who have 
 been in Maryland within the year past, and who can 
 bear testimony, I know, to the correctness of this 
 statement. I saw an article in the New York " Even- 
 ing Post," the other day, in favor of an elective judici- 
 ary, which spoke volumes of warning to us. The writer 
 was in favor of the elective judiciary as a matter of 
 theory, but at the close of the article he advised the 
 people of Massachusetts to be careful not to allow 
 the election of judges to come at the same time with 
 the election of the other officers, saying that that had 
 been a fatal mistake in New York, and that the con- 
 sequence had been that the judiciary had fallen into 
 the political cauldron. That admission is inestima- 
 ble. The result is admitted. The judiciary is in the 
 political cauldron. The reasons assigned, I doubt. I 
 do not believe that the judiciary has fallen into the 
 political cauldron because it happens to be chosen on 
 a particular day of the year. I believe it is the in- 
 evitable tendency of things, certainly in a state like 
 New York, and will be the tendency of things almost 
 everywhere. You recollect that, in New York, when 
 the elective judiciary first went into operation the 
 system worked very well. The first election was made 
 irrespective of parties. All parties came forward and 
 nominated a mixed ticket. Nearly all the old judges 
 were reelected, and everybody was delighted. The 
 next year it was not quite so well managed; the next 
 year less so; and now the system has fallen helplessly 
 into the great cistern — and the well is deep and there 
 is nothing to draw with. The reason assigned is not 
 
SPEECH ON THE JUDICIARY 95 
 
 sufficient, because, for the first two years, although 
 elected on tlie same day witli other officers, the judges 
 were kept clear of all political connection. The march 
 of political parties is irresistible, and office after office 
 has fallen before that march. Although I am yet 
 young, I can remember the time when the removal 
 of postmasters by General Jackson was considered 
 an enormity. I can remember when the removal of 
 custom-house officers was considered an enormity. 
 But the work of removal from office has gone on in- 
 creasing, until, at last, every executive officer falls 
 before the march of political parties. The spoils be- 
 long to the victors. The thirst for blood has come on, 
 and is not to be slaked. The leviathan is not so tamed. 
 Human nature is not to be thwarted by changing the 
 day of the year upon which you are to elect your 
 officers. xAll officers that parties can control fall be- 
 fore them. How were the trustees of Harvard Col- 
 lege to be chosen by the legislature? The first year 
 they were chosen irrespective of parties; but the very 
 next year the dominant party met in caucus, nomi- 
 nated an entire ticket, and carried it through. In New 
 York, the " Evening Post " says that judges have fallen 
 into the political mill. They beg in New York that 
 we shall not elect our judges on the seventh day of 
 November, for fear the same thing will happen here. 
 I say, make it surer than that. Let us not choose them 
 at all, and so we must be safe. 
 
 It may be said by some persons, Why should it not 
 fall into the political mill.'^ I think sound reasons can 
 be given why it should not. The law must be inde- 
 pendent of the changes of the popular will, because 
 this same venerable Constitution, some of which, I 
 trust, will remain, with or without its rust, says: "In 
 
96 RICHARD HENRY DANA, JR. 
 
 the government of this Commonwealth the legislative 
 department shall never exercise the executive and 
 judicial powers, or either of them; the executive shall 
 never exercise the legislative and judicial powers, 
 or either of them; the judicial shall never exercise the 
 legislative and executive powers, or either of them, 
 to the end it may he a government of laws and not of 
 men." 
 
 I have heard arguments made on this floor upon 
 the assumption that this is a government of men, and 
 not of laws. But our Constitution says it is a govern- 
 ment of laws, and not of men. I have heard gentle- 
 men speak here, under these sacred auspices, as though 
 whatever a majority chose to do at any time was the 
 law of the land. If so, we do not want any Constitu- 
 tion. The Constitution is designed for the protection 
 of individuals and minorities against majorities, and 
 therefore it is that the judiciary must not be made 
 dependent upon the popular will. One party and 
 another comes up, and then comes the third party, 
 that sweeps the board. But these changes must not 
 affect the organic law. One reason why they would 
 affect the organic law I think to be this — that you 
 would inevitably elect party judges. That has been 
 done, and it will be done again. There is another dan- 
 ger I apprehend far more than this, and which has 
 not been often adverted to. Take, for instance, the 
 case of the *' Maine Law," as it is familiarly called. 
 Suppose the judges of the supreme court were equally 
 divided as to the constitutionality of that law. One 
 of the three goes out of office at the end of this year, 
 and the people of Massachusetts are to pass upon his 
 reelection. If he is reelected that law perishes, but 
 if another man, of a different opinion, is elected, that 
 
SPEECH ON THE JUDICIARY 97 
 
 law survives. Earnest men will say, at the polls: "We 
 admit that Judge Doe is a very good man, a very 
 capable, and a very honest man, but you know that 
 he believes that law unconstitutional. You know the 
 terrible consequences of intemperance, and how it is 
 spreading over this country. You know that it burns 
 up human habitations faster than accident or crime 
 burn up the habitations that the mechanic rears. 
 We can give you a judge just as honest, just as ca- 
 pable, just as learned, whose opinions upon that sub- 
 ject we know to be correct. Now every vote for Judge 
 Doe is a vote for ruin, though he is a good man; and 
 every vote for Judge Roe is a vote for temperance 
 and happiness and salvation." How is that argu- 
 ment to be resisted.^ It will not be resisted. In times 
 of great popular excitement for a moral cause, or any 
 other cause, it will not be resisted. Take the Fugitive 
 Slave Law. Suppose the court equally divided upon 
 that subject. A new judge is to be elected. Fugitive 
 slave cases will come up before that court for a hear- 
 ing. I wish to know if the people will not wish to 
 ascertain something about the antecedents of their 
 judges upon that subject. I wish to know whether 
 they will vote in the dark. I tell you nay. The votes 
 will be given for principle, and not for men. Yes, 
 says my friend opposite (Mr. Burlingame), as I see 
 by the nod of his head, he is ready for it now. That 
 is young America. "Principles, and not men," will 
 be the cry. Furthermore, the choice of the people 
 will be considered as an expression of the law. If a 
 majority of the people should vote for that judge, 
 then it would be said that the people had spoken, 
 and that they had instructed the court, and that the 
 court must follow the voice of the people. I do not 
 
98 RICHARD HENRY DANA, JR. 
 
 know but that the argument which I consider to be 
 conclusive against the change will operate on some 
 minds in its favor; but let me beg every gentleman, 
 before he allows himself to be influenced in that di- 
 rection, to consider that he is not put here by his 
 Maker to carry out his own will upon the earth. The 
 people of Massachusetts were not put here to carry 
 out their will upon the earth. We were put here to 
 do justice, to protect the weak, to resist the mighty, 
 and to secure to each his right. The democratic doc- 
 trine that I know anything about, and that I respect, 
 though I have not enrolled myself under that name, 
 is not that which says that the people may do what 
 they can and will, but that which declares every man 
 equal before the law, and that he should have his 
 right. I ask professed Democrats here, which of these 
 two is the democratic doctrine: that every man may 
 do his will, and that the majority may do whatever 
 they can and will, or that every man, even the hum- 
 blest, has his rights, and that under the Constitution 
 all men, without distinction of caste, condition, pro- 
 perty, or education, are equal, and that they all shall 
 have their due before the law. We can now protect 
 the rights of every man by saying to him, you have 
 a tribunal, and if the multitude pursues you, you can 
 flee to the horns of the altar and lay hold thereon. 
 Although the avenger of blood may pursue you, and 
 the multitude follow hard after you, lay hold for your 
 life on the horns of the altar. We will give you a tri- 
 bunal which shall protect you until the danger be 
 overpast. That I understand to be the genius of our 
 Constitution, and therefore it is, T say, that the ju- 
 dicial office should not be blown about by every wind 
 of doctrine. Therefore it is that the people, by a 
 
SPEECH ON THE JUDICIARY 99 
 
 transient vote of the majority, should not settle the 
 law. They may make their law through the legisla- 
 ture, but, with the Constitution in my hand, I can 
 say to the poorest and humblest man, — the poor 
 trembling African, to the foreigner, who has first 
 landed on our shores, and who does not know his way 
 through the streets of the city, and does not know 
 the elements of our constitutional law, — I can say 
 to him: "You have come to a country where no man 
 can oppress you, where the government, where the 
 legislature, and where the people itself cannot op- 
 press you. If a sudden movement of popular opinion 
 should turn against you, and you should become 
 odious, or stand in the way of their will or their in- 
 terests, you may come to my humble office, and, with 
 a piece of paper no bigger than a man's hand, I can 
 set at defiance a majority of thousands of the people 
 of Massachusetts. I can point to the Constitution. 
 I can go to the tribunal and assert your rights." 
 "Aye," says my client, "you may, but how do I 
 know that that tribunal will assert it.^^" My answer 
 is: "I admit, a tribunal would be of no use, unless 
 it has power. It has the arm of the executive, it has 
 the whole arm of the State to enforce its decrees." 
 "But," says my poor client, "that is not enough. 
 How do I know they will sustain that Constitution 
 against a popular majority.^ How do I know they will 
 sustain it against the legislature .^^ Your legislature 
 has passed a law abridging my liberty and taking 
 away my property, and the people are bent upon exe- 
 cuting it, and at once. How do I know that your 
 tribunal will stand against it.^" I can give but one 
 answer. I can say: "The men who formed this Con- 
 stitution — wise, noble men — said it was essential 
 
100 RICHARD HENRY DANA, JR. 
 
 to the preservation of the life and liberty of each man, 
 that he should be tried by a tribunal as impartial and 
 independent, as the lot of humanity will permit. 
 Therefore they say, *The judges should hold their of- 
 fices, so long as they behave themselves well.'" I say 
 to him, that I admit it is said, that a man who con- 
 trols the subsistence of a man may control his will; 
 and we have provided that the salaries of these judges 
 cannot be touched while they are in office. I admit 
 that whoever can turn a man out of his office may 
 control his will, — not must control it, but may. 
 Now, I say to the poor trembling suitor: "These men, 
 whom you see before you, hold their offices so long 
 as they behave themselves well; they cannot be re- 
 moved, nor can they in any way be affected in their 
 persons, property, hopes or fears, for their decision 
 in your case.'* 
 
 But, if I had to say to him, here are these five judges, 
 I hope they will do you justice, I believe they will, 
 and I pray that they may; but I know, that two of 
 them are candidates for reelection to-morrow, and 
 party excitement runs high, and the feeling is very 
 strong in the community; or if I had to say, that the 
 Convention which had lately been in session had 
 provided that these judges should depend for their 
 reappointment upon the executive, and he should ask 
 me, how is the governor disposed .^^ I must tell him, 
 that the governor agrees in his views with the people. 
 The bill has been passed by the legislature and the 
 governor has signed it, and he is to appoint one judge 
 to-morrow, and the next day he is to recommission 
 another or not, just as he may see fit. Now, I could 
 not say to that man that he had as independent a 
 tribunal as the lot of humanity would permit. I want 
 
SPEECH ON THE JUDICIARY 101 
 
 to say to him that all the law can do to make the 
 tribunal independent and impartial has been done. 
 I do not say that it will then be impartial. Our judges, 
 now, may not be impartial. They may be governed 
 by social feelings, and to some extent they are. They 
 may be governed by the influence of a clique to which 
 they belong. That may be true; and so it will be under 
 any system. That is human nature. Our Constitu- 
 tion has not said that every man shall be tried by an 
 angelic tribunal; nor that every man shall be tried by 
 a superhuman tribunal; but by a human tribunal, 
 as impartial as the lot of humanity will permit. I 
 cannot warrant judges against personal, social, and 
 party feelings; but for that very reason, I do not 
 want to add another and a certain operation of a 
 power over his subsistence or his oflSce. 
 
 And when this man has stood before our tribunal 
 without fear, as far as a man can be without fear be- 
 fore his fellow men, and when he has gone away with 
 justice done to him against the popular will; when 
 that tribunal, standing higher than anything this 
 side heaven, making the most noble exhibition that 
 humanity can make, — protecting the right of a sin- 
 gle man against power, — when that has been done, 
 I turn to my grateful client and say: "Now, I wish 
 you to acknowledge that the old Commonwealth of 
 Massachusetts deserves some gratitude for a self- 
 imposed restraint. When the people of Massachusetts 
 might have made a law which would have walked 
 right over you; when the people of Massachusetts 
 might have provided that there should be no tribunal 
 and no Constitution, and nothing but the action of 
 the public will; when they might have mocked you 
 with a tribunal dependent upon the will of that very 
 
102 RICHARD HENRY DANA, JR. 
 
 majority against which you are to be protected; when 
 they might have mocked you with a tribunal depend- 
 ent upon that very executive against whose enforce- 
 ment you are to be protected, they have restrained 
 themselves, and said, — In order that justice may he 
 done to the loeakest — in order that in any moment of 
 excitement, in any hour of frenzy or mistake, we may 
 not touch the hair of the head of the humblest man, ive 
 will give him a tribunal which shall be independent of 
 the fluctuations of our opinions or passioris. 
 
 Having shown, gentlemen, why we should have an 
 independent judiciary, let them point to me one sin- 
 gle reason why we should make the change. There 
 is no popular demand for it, and there has been not 
 one single case of complaint. We have the power of 
 impeachment. How many judges have been im- 
 peached in this State .'^ Not one, in my day. Has a 
 judge been removed by the legislature .^^ But one, 
 and none in my day. What does that indicate.^ It 
 indicates that it has not been found necessary. And 
 what does that indication prove .^ It proves that we 
 have had a tribunal as impartial as the lot of human 
 ity will permit. Our judges, let gentlemen bear in 
 mind, are not irresponsible. They may be impeached; 
 they may be removed by a vote of the legislature. 
 Do gentlemen recollect that, at this moment, it re- 
 quires no more power to remove a judge of the su- 
 preme court, than it does to change a man's name; 
 that, on a vote of the two branches of the legislature, 
 the governor can remove a judge of the supreme 
 court; that a conviction in one tribunal, after impeach- 
 ment by another, may remove him from all office 
 forever .f^ What more responsibility do gentlemen 
 want.f^ It is not a question of responsibility. It is a 
 
SPEECH ON THE JUDICIARY 103 
 
 question of dependence. Now I admit, freely, that all 
 these gentlemen who hold that there ought to be no 
 constitution practically; that there ought to be no 
 tribunal independent of the changes of the popular 
 will, — they ought to support an elective judiciary, 
 and the sooner the better, and make them elective 
 not once in ten years, but every year. They cannot 
 stop short of that. 
 
 Tyranny is simple. It is as simple as the rule of 
 three. But these complex governments in which lib- 
 erty exists are not to be made or changed easily. They 
 grow. Institutions, as was said by the gentleman from 
 Marshfield (Mr. Sumner), grow out of men, and are 
 not imposed upon men. Now, this institution has 
 been hundreds of years in growing. We have lived 
 under it to this day and without any complaint. I 
 must take the liberty to say that if this Convention 
 were to destroy this system with no complaint made 
 against it, and should rush out upon the road of ex- 
 periment, possessed by a mere theory, when there is 
 no abuse to be remedied, it will be the rashest act 
 that a sober community ever committed. 
 
 I wish to say to this Convention that the judiciary 
 is the feeblest department of the government, and 
 needs protection. It is the feeblest department of the 
 government. So say Hamilton, and Jay, and Madi- 
 son; so says Marshall, so says Story, so say Kent and 
 Rawle and all the writers on the Constitution. And 
 is not that perfectly plain .^^ What is the judiciary .^^ 
 It passes upon private questions between man and 
 man. It interprets the laws. The powerful depart- 
 ment of the government is that which makes the laws. 
 The legislature holds the purse; the legislature creates 
 offices; the legislature establishes the compensation; 
 
104 RICHARD HENRY DANA, JR. 
 
 and in the legislature, distinction, conspicuity, and 
 political power are to be acquired. But the judiciary 
 creates no offices; the judiciary fixes no compensation; 
 the judiciary makes no laws. It has merely a voice 
 and a head; it has no arm; it has no purse; it has no 
 will. The legislature has a will, and the executive has 
 an arm; but the judiciary has neither power nor will; 
 it can only pronounce. When it has pronounced, it 
 can only throw itself upon the executive to execute 
 its decrees. 
 
 The judiciary is not the popular branch. It does 
 its business in quiet and stillness, and with but little 
 conspicuity. The legislature is the place where all 
 men go who are bound on a course of popular prefer- 
 ment, and who wish to stand high in the popular af- 
 fections. The judiciary has no strength except in the 
 public confidence and in its own integrity. 
 
 Many persons have been prejudiced against the pre- 
 sent system of the judiciary because of events which 
 have occurred in our own State within the last three 
 years. Many have sat uneasily under the existing 
 system, for they have thought that the judgments 
 of the court have been construed against what they 
 considered — and I agree with them — the true in- 
 terpretation of the Constitution on the subject of 
 fugitive slaves. 
 
 Now, I take it upon myself to say that I suffered 
 as much in my feelings as any man under those de- 
 cisions of the Supreme Court of Massachusetts, and 
 of the Circuit Court of the United States. I thought 
 them then, and I think them now, wrong. I say this 
 with diffidence, after decisions in such places. But 
 I can truly say that in my greatest distress there was 
 one drop of comfort left me. I knew that those de- 
 
SPEECH ON THE JUDICIARY 105 
 
 cisions came from men who were not making them 
 for their judicial lives. I knew that they came from 
 men who were not making them because their offices 
 or salaries depended upon their making them. 
 
 I felt that we had a tribunal, not entirely impartial, 
 — I cannot say that, because it was a human tribu- 
 nal, — but a tribunal for which the law had done all 
 it could do to make it impartial. I knew, and I won- 
 der other gentlemen do not remember, that had those 
 judges been elected, we should have stood no better 
 chance than we did then; for the popular majority 
 was against us. Had these judges known they would 
 be obliged to go through a popular election the next 
 week, I wish to know if we should have argued our 
 causes with any more confidence on that account. 
 No, Sir; the confidence felt in going before these judges 
 was this; and it was of unspeakable comfort to me, 
 that I had a tribunal as independent as the law could 
 make it. When this alarm, this fear — and fear is al- 
 ways cruel and always unjust — was spreading over 
 the country; when political parties and great leaders 
 thought it necessary to take a certain position; when 
 men thought that the Union and the shoe trade, and 
 I do not know how many other things, were in peril, 
 and certain things must be done, I felt, Mr. President, 
 the comfort of knowing that these judges held their 
 offices and their salary, utterly irrespective of these 
 popular determinations. Gentlemen are fond of talk- 
 ing as if the people were always in the right. Now 
 I have not lived long, but it has been my misfortune 
 not always to have thought them in the right; and I 
 submit to gentlemen who have sustained the demo- 
 cratic doctrine in this State through these long years 
 of defeat, up to this day, whether they have always 
 
106 RICHARD HENRY DANA, JR. 
 
 thought the people right. I ask the Whig party, who 
 have gallantly maintained their position before the na- 
 tion, — beaten three times out of four, — whether they 
 have thought the people always right. I submit to 
 my own associates whether they have thought the 
 people of the nation, or of this State, always right 
 on the great question of resistance to the spread of 
 slavery and the slave power. No, Sir; this always 
 has been, and always will be the case, that among all 
 the changes of the government, and changes of popu- 
 lar opinion, the public is sometimes unjust. No man 
 has considered his own nature well, without feeling 
 that he has something within him to satisfy him that 
 he ought not to be trusted with arbitrary power. 
 
 Is there one man here who in a moment of resent- 
 ment, in a moment of passion, in a moment of sup- 
 posed insult, has not thanked God that he was not 
 possessed of arbitrary power .^ I suppose every man 
 feels the necessity of self-restraint; and if he cannot 
 restrain himself, he thanks God for putting some- 
 body over him who can restrain him. So it is with 
 the good people of Massachusetts. They know that 
 they cannot trust themselves with arbitrary power, 
 and, therefore, they make a Constitution which will 
 restrain them. They know that they can neither trust 
 the legislature nor the executive with arbitrary power, 
 and therefore they make a tribunal to decide whether 
 they have acted in accordance with their general will, 
 and done nothing which it was not their general will 
 should be done. So it is with an individual. He may 
 have a general will to serve God, and a special, tem- 
 porary will to do wrong when a temptation presents 
 itself; but his desire is that his special and temporary 
 will shall be overruled and restrained, so that his 
 
SPEECH ON THE JUDICIARY 107 
 
 conduct may conform to his general will. Now the 
 general will of the whole people is expressed in the 
 Constitution; but there may be some act of the legis- 
 lature, some sudden freak of the executive, contrary 
 to that general will. We, therefore, wish to get such 
 a faithful witness to this our general will, as shall 
 protect every man against the consequences of what 
 we or our servants may do, in a moment of rash- 
 ness. 
 
 I have trespassed very much on the patience of 
 this Convention, and I will now merely say a few 
 words in relation to this matter of reappointment. 
 I have said all that I propose to say now, upon the 
 subject of an elective judiciary, for I do not conceive 
 that on that point we are in any very serious peril 
 in this Convention. Gentlemen may be disposed to 
 say, if we cannot make judges elective, we will make 
 them, in some manner, dependent upon the executive 
 for their term. I wish to ask those gentlemen who 
 are in favor of an elective judiciary, what they have 
 to say to this proposition of the gentleman from Na- 
 tick. What kind of a proposition is it.f^ In how many 
 states of the Union has the experiment been tried, 
 of having their judges hold office for ten or seven 
 years, and then be reappointable by the executive.^ 
 There may be some such, but I do not know of any 
 myself. Upon what principle does it rest.^ I can very 
 well understand upon what principle an elective ju- 
 diciary rests, but I cannot so easily understand upon 
 what principle you base the doctrine that the judges 
 are to be made dependent upon the executive. Why, 
 Sir, I thought that gentlemen were afraid that the 
 executive had too much power and patronage; and 
 we have, therefore, been stripping the executive of 
 
108 RICHARD HENRY DANA, JR. 
 
 the power of appointment of numerous minor offices. 
 Yet we are now asked to clothe him with the power, 
 every year, to appoint a judge of the Supreme Court, 
 and to reappoint him at his pleasure. I do not un- 
 derstand how this is carrying out the principle, that 
 *' because the power of the executive has increased, 
 and is increasing, it ought, therefore, to be dimin- 
 ished." I ask those gentlemen who stood by the Re- 
 port and Address of the Free Soil Committee, only 
 nine months ago, — nay, not so much, not nine, less 
 than five months ago, — which declares that the 
 power and patronage of the executive must be di- 
 minished, with what face they can come here and 
 advocate the clothing of the executive with this tran- 
 scendent power, v/hich I do not know that a state in 
 the Union has clothed him with. The executive desig- 
 nates and nominates the judge now, but after he is 
 so nominated and appointed, he is entirely out of its 
 control. I say it is of little consequence who appoints, 
 if the appointment is made by an intelligent body, 
 provided the judges hold by an independent tenure. 
 I cannot see any fatal objection to the judges being 
 elected by the people in the first instance, if they are 
 to be independent of the changes in the public will, 
 and responsible only for misbehavior, although I think 
 a judge is the better for not having been through a 
 political campaign, and not being connected with its 
 issues. I assure every gentleman here, that I will go 
 to the fullest extent to make a judge responsible to 
 the people, if any charge of misconduct can be brought 
 against him. I will consent to anything that is judi- 
 cious, if your power of impeachment and address 
 does not make them suflSciently responsible. It is the 
 fact of a judge's looking to a reappointment, that 
 
SPEECH ON THE JUDICIARY 109 
 
 makes the danger. I do not see that the danger is very 
 much affected by the question whether they look to 
 the executive who sits in that chamber, or look to a 
 party caucus that meets somewhere in School Street, 
 or State Street, for their reappointment. Whether, 
 as the fatal day approaches, his friends besiege the 
 doors of the ante-room for a week or a month before- 
 hand, while he is expected to sit all unconscious, on 
 his bench, "as impartial as the lot of humanity ad- 
 mits," or whether they take by the buttonhole the 
 members of the State Central Committees. I cannot 
 see that there is much to choose between them. Gen- 
 tlemen who suppose that our judges would stand just 
 as they have stood, are mistaken, in my judgment; 
 for the chance of reappointment, or the chance of re- 
 election, will depend very much on their decisions. 
 
 The people and the political parties will be gov- 
 erned in that matter by these considerations. The 
 executive will be elected by a party. That party has 
 principles, — I do not mean the low purposes of 
 party, but the great principles of party, — and those 
 men who have got principles are the dangerous men 
 of whom I am afraid. I am not afraid of the rogues; 
 I am not afraid of the camp-followers, who hang about 
 parties; but it is the party that has great principles 
 to carry out, that gets excited and loses its balance, 
 and when the moment of election comes, and the 
 whole community is stirred up, then I am afraid that 
 the calm and quiet retreat of the judiciary will be 
 invaded. 
 
 I see that my friend from Fall River (Dr. Hooper) 
 is making out a recipe against me; but I want him to 
 understand that I am only afraid of party principle 
 because it will operate in giving direction to the laws 
 
110 RICHARD HENRY DANA, JR. 
 
 of the land, whereas the laws of the land should stand 
 far above all such influences as those of party prin- 
 ciple. The law should rest upon fundamental prin- 
 ciples, should be given out wholly irrespective of the 
 divisions of party. The law is a science. The judges 
 are professors of a science. Their own will must not 
 intervene. The will of popular majorities, unless in 
 the form of laws constitutionally made, should not 
 intervene. 
 
 I do beseech gentlemen not to be deluded by the 
 arguments, that if you cannot get an elective judi- 
 ciary, you must take all that you can get; because, 
 in this case, you have got to take a very different 
 sort of thing from what you wish. What gain is it to 
 popular power, or the popular principle, that the 
 judge holds for ten years, with a transaction at the 
 end of that time between himself and the governor, 
 instead of holding independently during good behav- 
 ior, averaging thirteen years .^ You increase the execu- 
 tive power, and create a feeling of dependence and a 
 risk of partiality, for no adequate compensation. The 
 tables show us that the judges' tenures average only 
 thirteen years, allowing for deaths and resignations. 
 The governor would have, in doubtful cases, the control 
 of a majority of the Supreme Court every year. He will 
 appoint a judge every year, and that may turn the 
 majority in close cases. So you will have a supreme 
 court with the majority, in the balanced cases, in the 
 hands of the governor. If there is a new judge to be 
 made, he must find him; if there is a judge to be re- 
 appointed, he has to reappoint him or not, at his 
 option. In ordinary cases, I doubt not that judges 
 would be appointed according to their behavior; but, 
 in the highest tribunals, judges would be appointed. 
 
SPEECH ON THE JUDICIARY 111 
 
 eventually, according to their opinions. They must 
 have their platforms, and they will have their plat- 
 forms, and we shall have the mortifying exhibition 
 of our judges, or their friends, at the door of that execu- 
 tive chamber, petitioning for reappointments. Now, 
 Sir, I do not want to make them dependent upon the 
 changes of popular elections, either upon one man or 
 a dozen men, I do not think it makes a great deal 
 of difference which. This principle, — I call it a prin- 
 ciple, out of respect to my friend from Natick, — 
 this experiment, which, I believe, he is almost the 
 first if not the very first to embark in, is putting the 
 judicial department substantially under the control 
 of the executive department. 
 
 Mr. Wilson. I will inform the gentleman that he 
 will find the same thing in Maine and in several other 
 states of this Union. 
 
 Mr. Dana. "Several states." That is rather in- 
 definite. There are thirty-one states in the Union, 
 and three makes several ! and I am told there are but 
 three out of thirty-one. It is founded upon a viola- 
 tion of principle. Our Constitution says that the 
 departments shall be distinct — no one department 
 "shall exercise the power of another." Our ancestors 
 never even dreamed that we would give the head of one 
 department power over another. They never supposed 
 that in the course of affairs it would ever happen that 
 one department would be bound, hand and foot, and 
 delivered over to another. They thought it quite 
 enough to provide that one department should not 
 exercise the powers of any other. "The executive 
 shall never exercise legislative or judicial powers, or 
 either of them." But they can do it indirectly, if your 
 judges are to be dependent upon the executive for 
 
112 RICHARD HENRY DANA, JR. 
 
 reappointment. I maintain, therefore, that if you 
 adopt the experiment of the gentleman from Natick, 
 you will violate the great substantial principle of this 
 government, in relation to these three departments. 
 If you make the judges dependent for their reappoint- 
 ment upon the executive, how can you tell where 
 that dependence begins or where it will end.'^ Gen- 
 tlemen may say that they will not be influenced; but 
 you cannot tell how far they will be influenced, and 
 the great difficulty is, that the judges themselves 
 cannot always tell whether they are influenced or not. 
 I have no doubt that in such circumstances most 
 judges will pronounce decisions which they believe 
 to be impartial, but they do not know themselves. 
 It is tempting Providence. This self-deception is 
 one of the most subtle and most easily besetting sins 
 incident to humanity. If you make the judges de- 
 pendent, you will not discover, and they will not 
 discover, what an influence this has upon their in- 
 most thoughts and feelings. If the office were not 
 a desirable one the judge would not have accepted 
 it. Will not this feeling increase and strengthen with 
 the time in which he should hold the office? I submit 
 to every gentleman upon this floor, if, after a man 
 has held an office for ten years, a reappointment is 
 not eminently desirable. Suppose a man takes an 
 appointment at the age of fifty, and holds it until the 
 age of sixty, and then goes back to his profession. 
 You put the salaries so low that a man cannot lay up 
 anything. He goes back to his profession, and he 
 finds himself incapacitated, as it were. His hand is 
 out. Competitors, younger and more energetic, have 
 entered the field and have gathered the business into 
 their garners. His old clients are gone. Imagine such 
 
SPEECH ON THE JUDICIARY 113 
 
 a man going back into his profession, his head whit- 
 ened by the snows of threescore winters, competing 
 at the bar with the young and middle-aged, with the 
 advantage of ten years' daily practice on their side. 
 This judicial office is a peculiar one. You cannot get 
 a man to take it as he would an executive or legis- 
 lative office. The judge must study a long time to 
 qualify himself for its duties; and if he is thrown out, 
 he must begin the world anew on a little chamber 
 practice, for he cannot ordinarily resume the active 
 duties of the profession. Thus, Sir, his office is a de- 
 sirable one, and he knows it, and his family know it, 
 and his friends know it. Suppose he looks to the gov- 
 ernor for reappointment. As the day approaches, 
 his mind naturally looks forward to that time and 
 dwells upon it. As it comes nearer and nearer, it en- 
 larges until it fills the whole horizon. This idea is 
 something which cannot be set at naught. It will 
 have more influence upon some than upon others, 
 but you are bound to remove all such temptations 
 from their path. There is nothing else in the whole 
 range of subjects which we have discussed, whether 
 the plurality system or the majority system, the execu- 
 tive council, the town system of representation, or 
 the district system, upon which you may not experi- 
 ment more safely than upon this. Do not experiment 
 upon the impartiality of your judges. Do not ex- 
 periment to see how much temptation they can with- 
 stand, with their office and salary on the one hand 
 and conscience on the other! 
 
 I ask if anybody has petitioned us that this experi- 
 ment might be tried .^^ Has anybody complained of 
 anything wrong.^^ Ob! save your judges from this 
 humiliation — save them from temptation ! Save 
 
114 RICHARD HENRY DANA, JR. 
 
 from distressing doubts and suspicions the men who 
 go to them for justice! I cannot conceive of a distress 
 more cruel than that of a cHent whose Hfe and all is 
 at stake, with a doubt resting upon his mind as to the 
 impartiality of the tribunal. That doubt of the impar- 
 tiality of the final tribunal will be a doubt that will 
 try all the institutions of this country. Save the client 
 from that doubt! Banish from his mind the constant 
 impression, as he looks over the faces of those five 
 judges: "You, Sir, next year, are to be reappointed 
 by such a party," and "you. Sir, this year, must be 
 reappointed by such a party," and "I am standing 
 upon the very platform which that party has de- 
 nounced — I hold the opinions which that party is 
 sworn to overthrow!" The first thing that I should 
 wish is, that all the citizens should feel perfectly se- 
 cure from that doubt; and in the day of our great 
 extremity, if it should ever come, let us be able to 
 thank the old Commonwealth that she has saved us 
 from that distress. You have onl}^ to stand where you 
 are, and you secure it. Why not do it.f^ Why venture on 
 this experiment.^ W^ho has required it at your hands? 
 Stand where you all stood in October, 1852, or 
 where the people thought you stood. Stand where 
 you stood in February, 1853, and where the people 
 believed you stood, when they went to the polls, and 
 sent you here. Stand where all three of the political 
 parties stood on the day when the people sent us here. 
 Do not exhibit the spectacle of making this funda- 
 mental change, with no call from the people to have 
 it made; with no notice to the people that it was to 
 be attempted, and with no chance for the people to 
 elect men with reference to its being attempted. 
 Stand by it because we have had an independent and 
 
SPEECH ON THE JUDICIARY 115 
 
 honorable judiciary under it. Stand by it, because 
 no experiment has ever been tried under the other; 
 for no generation has grown up under an elective 
 judiciary. And I say to the gentleman from Natick 
 (Mr. Wilson), and to the gentleman from Fall River 
 (Mr. Hooper), by all means, let it stand until they 
 have agreed what they will substitute in the place of 
 it. I say, make no reform until your institutions need 
 reform, and imtil you have agreed what reform you 
 will make. Do not exhibit to the world a spectacle, 
 as we shall in Massachusetts, of a convention called 
 to make changes which the popular voice had indi- 
 cated, taking in hand to make substantial changes 
 of which the people had given no intimation ; making 
 change for the sake of change; without any admitted 
 evil to be remedied, and upon a theory about which 
 themselves cannot agree. Sir, the gentleman from 
 Fall River will see the force of the illustration, when 
 I tell him it is bad enough to see two surgeons sitting 
 by the side of a sick man, quarreling between them- 
 selves what they will do with him; but to have them 
 seize hold of a man in health, and bind him hand and 
 foot, to try experiments upon him, and not to be able 
 to agree what they shall do to him! that is cruelty as 
 well as folly. And yet. Sir, that is precisely the state 
 of things here. 
 
 A Voice. That's a fact. 
 
 Let gentlemen lay this to heart. They are not in 
 a position to try this experiment here. Nobody has 
 discussed this project; yet without discussion, gen- 
 tlemen would force it upon the people. Gentlemen 
 are uneasy. We are coming towards the close of the 
 session, and gentlemen say that we must not delay 
 an hour. But I say to the friends of the Convention, 
 
116 RICHARD HENRY DANA, JR. 
 
 if they wish to save time, do not save it by rash and 
 rapid work. Save it by letting alone what you have 
 not time to do well. If the people want the change, 
 it can be afterwards made through the legislature. 
 But my word for it. Sir, the people do not want it. I 
 so judge by the symptoms. If there be no symptoms 
 of a desire, I judge that there is no desire. 
 
 Sir, we hold our seats here under an implied obli- 
 gation not to touch the judiciary; not merely, as the 
 gentleman from Natick says, not to make it elective, 
 but not to change the tenure at all. Therefore, I say 
 again, stand by the Constitution until you see a diflS- 
 culty to remedy, and seeing the difficulty, stand by 
 the Constitution still, until you can agree as to what 
 that remedy should be. Stand by it until the people 
 have called for the change; and when they have called 
 for it, and the evil is apparent, and the remedy agreed 
 upon, I promise to give you my humble aid, but not 
 till then. 
 
V 
 USURY LAWS 
 
 February 14, 1867 
 
 [During Mr. Dana's first year in the Massachusetts Legisla- 
 ture, 1867, the repeal of the usury laws of the state became a 
 matter of discussion. 
 
 "That this law should be stricken from the statute book had 
 always been tacitly accepted as something hardly within the 
 range of reasonable expectation. It had been handed down from 
 the earhest settlement, was of Biblical origin, and was ordinarily 
 regarded as one of the pillars of civilized society; for without 
 some law fixing a legal rate of interest, it was popularly supposed 
 the borrower would be completely at the control of the lender. 
 When this question came up, Mr. Dana contributed to the de- 
 bate one of the most admirable presentations of the argument 
 against usury laws which has ever been made. Its effect at the 
 time of its delivery was great, the repealing measure passing the 
 House of Representatives, to the surprise of every one outside 
 the State House, by a majority of 43 in a total vote of 197. When 
 published, the fame of this speech went abroad, and it made a 
 deep impression beyond the limits of Massachusetts. It has since 
 been printed repeatedly, and is still one of the documents in use 
 wherever the question of the repeal of usury laws is under dis- 
 cussion." ^ 
 
 There was no organization assisting Mr. Dana at the time. 
 It was the case of the power of one man's single speech. Apart 
 from any need of enlightenment in this Commonwealth, where 
 there is practically no danger of reestablishing usury laws, the 
 speech is still well worth reading. It holds the attention with as 
 much interest as if the repeal were the question of the hour. 
 ^ Biography of R. H. Dana, Jr., vol. ii, p. 337. 
 
118 RICHARD HENRY DANA, JR. 
 
 There is a fascination about it, and many of the principles es- 
 tabHshed and illustrated are fundamental ones in political econ- 
 omy which all should know. 
 
 That Mr. Dana's arguments and predictions are amply con- 
 firmed by forty-three years of experience is well known in gen- 
 eral. Of late years, it has been again and again noted that in 
 Boston, where there is no usury law, rates of interest during a 
 panic were below those of New York, where there is a legal 
 limit. Nor has the New York seven per cent legal limit pre- 
 vented the exaction and payment of interest at the rate of ten, 
 twelve, twenty-five per cent a year and even more.] 
 
 This subject, Mr. Speaker, is one of first-class 
 importance. Usury laws had their origin in the be- 
 ginnings of history. They have been dealt with by 
 moralists, theologians, philosophers, statesmen, and 
 economists, — by church councils, synods, parlia- 
 ments, royal edicts, and legislatures, from the Law 
 of Moses to the hour of the present debate. They had 
 a noble origin — an origin in kind hearts and religious 
 purposes. They had a common origin with sump- 
 tuary laws, and laws regulating the prices of the 
 necessaries of life. One cannot but respect the mo- 
 tives of those who, in ancient times, desired, by strong 
 laws and heavy penalties, to repress luxuriousness of 
 living, and to protect the poor borrower against the 
 rich and potent lender, and the poor consumer of 
 the necessaries of life against the wealthy producer. 
 
 Sumptuary laws are no strangers to this country. 
 They were enforced in the early days of New England; 
 but who would think of calling for them, or of per- 
 mitting them, now? 
 
 How has it been with laws regulating the prices 
 of the necessaries of life.^ 
 
 It seemed to philanthropic men that a poor con- 
 
USURY LAWS 119 
 
 sumer should not be obliged to pay a great price to 
 the rich producer. All are charged to give to the poor; 
 and the rich producer was not to be allowed to com- 
 pel the poor consumer to pay a high price for the 
 necessaries of life — for bread. 
 
 If we go back, I do not know how many centuries, 
 we shall find philanthropic men urging a system of 
 laws which should compel the producer to sell at mod- 
 erate rates. Nothing could be more humane in inten- 
 tion, nothing more in accordance with the spirit of 
 Christianity. But when they came to put the system 
 into operation, some difficulties showed themselves. 
 For instance, suppose what I call the natural price of 
 a bushel of wheat, that is, the price which, without 
 legislative interference, would be the ruling rate when 
 the producer and consumer were brought together, 
 was ten shillings. But ten shillings is a high price for 
 a poor consumer to pay. The philanthropic legisla- 
 ture says he shall have it at nine shillings, and the 
 rich producer shall sell it at nine shillings. In those 
 days the laws were enforced — and no law should stand 
 that cannot be enforced. Gentlemen can see that if 
 ten shillings was the proper price, and the producer 
 was compelled to sell at nine, he would not go on pro- 
 ducing wheat, but would turn his capital and indus- 
 try in another direction. So the consequence would 
 be that the next year the price of wheat would rise, 
 and the poor consumer be in a worse condition. 
 
 Something must be done to increase the supply. 
 The first attempt was to compel the agriculturist by 
 penalties to produce and sell. Immediately it became 
 apparent to all that there was no reason why he 
 should be forced to raise and sell at a losing price, 
 when nobody else was obliged to work in that way. 
 
120 RICHARD HENRY DANA, JR. 
 
 Then the friends of the poor resorted to a bounty. 
 That seemed reasonable. The natural value is ten 
 shillings, and you wish to sell to the poor at nine; 
 and so you will pay the producer a bounty of one 
 shilling per bushel from the public treasury, that he 
 may sell at nine. Why is not that proper? Two dif- 
 ficulties immediately occur. The first is that you 
 cannot make one law for selling to the rich, and an- 
 other for selling to the poor. You cannot say to the 
 seller, if a rich man comes to you to buy, charge him 
 ten shillings, and if a poor man comes, sell for nine; 
 for, who is rich, and who is poor.^ You cannot make 
 a law to benefit the poor alone, so that the rich will 
 not also get the benefit of it in the market, as well as 
 the poor. 
 
 Another objection to the bounty was that, as it 
 must be raised by taxation, every man was taxed for 
 a shilling a bushel, that every man might buy a shil- 
 ling a bushel cheaper. Nay, it was worse than that; 
 for it is known that, what with the expenses of col- 
 lection and the notorious leakages in all revenues, 
 not more than two thirds of a tax collected reaches 
 its point of destination. So that one shilling and six- 
 pence was levied to save a shilling. 
 
 That was the end of the bounty laws, and of all 
 attempts to regulate the price of the necessaries of 
 life. Yet what could be more commendable than an 
 attempt to reduce the price of the necessaries of life.^ 
 I suppose there is no sane man anywhere now, who 
 would propose to regulate that price by legislation. 
 You would say it is absurd to do so. Mr. Speaker, 
 excuse me, you cannot say it is absurd. It was the 
 faith and belief of centuries; it was the practice of 
 generations; and wise men, men as wise in their day 
 
USURY LAWS 121 
 
 as we in ours, only they had not the same experience 
 as we, — yet as wise, and certainly as benevolent, — 
 advocated this system. The arguments in support 
 of the system were as urgent and as sincere as those 
 which have been used on this floor against the repeal 
 of the usury laws. It was experience, and the prin- 
 ciples deduced from experience alone, which taught 
 men that they could not legislate a cheap market. 
 For there is nothing harder to get out of a man's 
 mind, when he is conscious that he has undertaken 
 a course of conduct from pure and philanthropic mo- 
 tives, than his first convictions. It is easier for a 
 camel to go through the eye of a needle, than for a 
 good man to surrender, to the teachings of experi- 
 ence, a darling system for which he knows he has 
 made sacrifices, and with which he has identified all 
 he has and is. 
 
 The next system, in the same category, from which 
 we may draw instruction, is the colonial system. It 
 was this: The mother countries — Great Britain, 
 France, and Spain — established laws requiring their 
 respective colonies to deal solely with them. The 
 consequence was that we could not send to Cuba and 
 get a pound of sugar, but that pound of sugar must 
 go to England and pay duties and pass through the 
 merchant's hands there, and then come here and pass 
 through the merchant's hands, so that we had to pay 
 a great sum for a pound of sugar. Massachusetts 
 could not sell or buy except with the mother country. 
 As an equivalent, it was agreed that the mother 
 country would not buy the products of the colony 
 except from the colonies themselves. It was thought 
 that all this circuity of trade and reduplication of 
 business was a creation of wealth. By and by it came 
 
122 RICHARD HENRY DANA, JR. 
 
 to be discovered that both countries were paying a 
 heavy taxation, and both obHged to buy in a dear 
 market and sell in a cheap, that each might save a 
 little out of a forced interchange. This system may 
 seem now absurd; but you know we had to fight our 
 War of the Revolution partly because England had 
 a false notion of political economy as to her colonies. 
 Spain has not given up her system yet. Our longer 
 experience has shown the mistake of the colonial 
 system, but generations, wise and prudent in other 
 things, adhered to it and fought for it. 
 
 Consider the system of protection, — protection 
 of American manufactures. I can remember when 
 men advocated protection for the sake of protection. 
 Public policy may still lead us to levy duties on im- 
 ported articles, in order to shelter an infant manu- 
 facture until it can take root in the soil. But political 
 economy compels us to be reasonably sure that the 
 article is one which can be profitably made or pro- 
 duced here, after protection is withdrawn. When we 
 have a given amount to raise for the government, 
 and duties on imports are the best mode of raising it, 
 we charge and distribute the duties so as best to coun- 
 teract foreign protective systems and aid our own in- 
 dustry; but this is secondary and incidental protec- 
 tion. How many statesmen are there now that would 
 raise a surplus revenue for the sake of protection.^ 
 It is now common knowledge that this revenue, as 
 we fondly call it, is only a tax upon ourselves, one 
 third of which is spent in the collection. 
 
 I will now ask the attention of the House to the 
 question more immediately before us; and I hope 
 this introduction has not been without its bearing. 
 I trust we shall have gained something by advanc- 
 
USURY LAWS 123 
 
 ing in this manner to the examination of our sub- 
 ject. 
 
 Mr, Speaker, I will never vote for a bill, in what- 
 ever form it comes, the object of which is, or the tend- 
 ency of which is, to raise the rate of interest on 
 money, by law. I will never vote for a bill the effect 
 of which is to enable the interest on money to rise, if 
 it can be by law kept down for the benefit of the poor 
 borrower. I admit it has been true in times past — 
 I trust it is no longer true — that the borrowing were 
 the feebler class, and the lending the powerful class. 
 If in those times you would have favored either, it 
 should be the borrower. Perhaps in ancient days 
 such laws may have been of some practical use, as a 
 protection to the poor. 
 
 I said the usury laws had a noble origin, in religious 
 convictions and in philanthropic motives. Therefore 
 I desire to speak of them with a degree of respect. 
 The Mosaic law has always been supposed to prohibit 
 the receiving of interest for money. All interest was 
 usury. The Mosaic law did not prohibit the taking 
 of usury from strangers, and therefore it was not con- 
 sidered a malum in se, but was simply a regulation 
 between the Jews themselves. Gentlemen will see 
 the difference between the state of things then and 
 now. The Jews were a peculiar people, isolated, ex- 
 clusive, without commerce, without trade, without 
 manufactures, — nothing but the distaff and shuttle 
 under the tent, or two women grinding at a mill. They 
 had no mode of investing capital. Capital consisted 
 in gold, jewels, and raiment, which was laid up in 
 chests, and which they used as they needed. For a 
 man to lend money to his neighbor was very much 
 like a man's now lending a book to his neighbor. 
 
124 RICHARD HENRY DANA, JR. 
 
 Any of us would be ashamed to charge for lending a 
 book to his neighbor. I have been in countries where 
 the capital of the rich was laid up in iron chests, and 
 they could not invest it. That was the state of things 
 among the Jews, who were brethren, one man's sons. 
 For those reasons they would not take money for their 
 little loans, — mere accommodations between one 
 another. 
 
 When Christianity became the religion of Europe, 
 this Jewish system was introduced and insisted upon 
 by the church, in the Judaizing tendencies of those 
 days. I think it no disrespect to say that the ancient 
 church went too far in attempting to fasten the Mo- 
 saic policy upon the governments of that period. But 
 I do not think gentlemen will find that the prohibi- 
 tion of interest was due solely to the Mosaic system. 
 It is to be ascribed in part to Christian philanthropy. 
 Borrowers were poor, lenders were rich. 
 
 Nor was it the system of Moses alone. What greater 
 name than that of Aristotle .^^ He said money could 
 not produce money, as it was, in its nature, barren. 
 The earth could produce; its products could be con- 
 sumed; but money produced nothing. Therefore, 
 said the great Aristotle, money ought never to bear 
 rent. Now who do you suppose was the first person 
 that exposed this fallacy.^ Not one of his contempo- 
 raries, nor one of the philosophers of the middle pe- 
 riod, but the great reformer, John Calvin, in one of 
 his powerful Latin paragraphs, exploded the fallacy 
 of Aristotle, and relieved mankind from its incum- 
 brance. But how long do you think it had borne 
 sway over the minds of men.^^ Nineteen hundred 
 years! One of the effects of the Reformation was to 
 lessen the influence of these laws and maxims; yet 
 
USURY LAWS 125 
 
 Christians always took hold of them with great ten- 
 derness. 
 
 Gradually there came up a great deal of mercantile 
 and manufacturing industry, and a necessity for cap- 
 ital; and the capitalists, instead of locking up their 
 money, put it in a position where it might increase; 
 in other words, they lent it. Gentlemen will see that 
 capital is most called for where there is the most in- 
 dustry. A live country calls for capital, and can pay 
 for it; a dead country cannot. After the discovery of 
 America, capital was in demand, and men were ready 
 to pay interest on it. Then the theologians were 
 obliged to review their teachings. If it had come to 
 this, that money must be had, and men would pay 
 interest on it, ecclesiastical ethics must be revised. 
 It was then noticed that in one of the parables, the 
 man who got ten talents for his ten talents was praised 
 — *' Well done, good and faithful servant " ; he had lent 
 his money to usurers, and, it would seem, at a high 
 interest. But philanthropy still held on to the sys- 
 tem, to this extent: your capitalists may lend money, 
 but they shall not extort; they shall not receive more 
 than its fair value. This is a moral law. To-day and 
 here, the rate of legal interest is six per cent; but if, 
 when the market value is five, a person takes six, he 
 is morally as guilty of extortion as if, when the value 
 is six, he should take seven. He would be taking ad- 
 vantage of another's necessities, and receiving more 
 than a fair value for money. The early laws had in 
 view this object, to prevent the powerful lender get- 
 ting more from the needy borrower than — what.^^ 
 Six per cent.^ No; there is nothing in nature that 
 points to six per cent, — from getting more than the 
 fair value at the time. I coincide with that entirely. 
 
126 RICHARD HENRY DANA, JR. 
 
 I agree that if you could pass a law which should not 
 fix, but ascertain the market value of money every 
 day, that would be right. In early, simple times, the 
 value could be ascertained, nearly. But as business 
 increased, the means for ascertaining the rates failed. 
 It was found at last that fixed legal rates could not 
 be adjusted to the real value of money. Can it be 
 done now.f^ Let any man take up a newspaper and 
 examine it, and he will see that money fluctuates not 
 only week by week and day by day, but hour by hour. 
 You would be obliged to have a commissioner on every 
 curbstone, and a financial clock at the head of State 
 Street, to record the changes by the minute; and then 
 punish men who took excess, as ascertained by the 
 clock ! 
 
 The usury laws of this day do not stand on the prin- 
 ciple of prohibiting extortion, but on that of fixing the 
 market rate of interest by legislation. Having fixed 
 a permanent and purely arbitrary rate, you treat 
 lending at that rate, although it be above the market 
 value, and therefore extortionate, as right; and treat 
 lending above that rate, though below the market 
 value, as wrong. 
 
 The rate of interest is governed by laws of trade. 
 It depends upon the demand and the supply; not upon 
 the amount of capital in the country, but the supply 
 for loan. It is sometimes carelessly said that it de- 
 pends upon the amount of capital in the country. 
 You might as well say that the price of fish in Faneuil 
 Hall Market to-day depends upon the quantity of 
 fish in Massachusetts Bay. The rate of interest de- 
 pends upon the amount in the market for loan, and 
 upon the character of the demand as well as its 
 amount, because we must look at the security. When 
 
USURY LAWS 127 
 
 we speak of the market rate of interest, we assume 
 that the security is perfect. If you cannot ascertain 
 the rate of interest upon perfect security, so as to 
 affix to it by legislation a standing rate which shall 
 be its real value, still less can you do so as to all the 
 degrees and kinds of inferior and questionable security. 
 Nevertheless, your legislation has sought to keep in- 
 terest down to one rate, in all cases alike. 
 
 Why, Mr. Speaker, place on this table before us 
 three samples of flour; one superfine, one fair, and 
 one inferior. If, after the old style, you should wish 
 to regulate by law the price of flour, would you com- 
 pel the merchant to sell all at one rate.^^ Now, place 
 on this table three notes, on which money is to be 
 lent. One has perfectly good security, one inferior, 
 and the third no security at all. Would you compel 
 the capitalist to lend on all at one rate.^^ Certainly 
 not, in justice. Yet that is what you do by your usury 
 laws. If times are such that the best paper must give 
 six per cent, you will not permit the hirer to give or 
 the lender to take more than that on the inferior. This 
 is one of the absurdities of your usury laws. They 
 not only take no account of the market of the world, 
 which moves with the irresistible power of ocean tides, 
 affecting proportionally all securities, good and bad; 
 but they take no account of the quality of the secu- 
 rities offered for sale. If in time of panic a note with 
 perfect security must pay six per cent a month, the 
 lender is permitted to take but one-half per cent a 
 month for the poorest. He must take the same in- 
 terest on an inferior note for twelve months as on 
 a perfect note for twelve days. If a poor man, in 
 dire need, with poor security, but his best, wishes 
 to borrow, and a better note than his is worth six 
 
128 RICHARD HENRY DANA, JR. 
 
 per cent, he is not permitted to offer anything above 
 that. 
 
 It is time now, Mr. Speaker, that the House took 
 up the question of practicability. Can you keep down 
 the rate of interest by legislation, if you would .^^ That 
 question must be answered by gentlemen before they 
 have a right to respond aye or no on this matter. 
 
 There is a good deal of instruction to be derived 
 from the steady set of events. There has been a uni- 
 form tendency toward the abolition of the usury laws 
 for the last eight hundred years, among liberal minds, 
 and advocated upon the most enlightened reasons. 
 Gentlemen who have defended the usury laws on this 
 floor, as special friends of the poor, should be re- 
 minded that it has been the friends of the poor, the 
 philanthropists, the statesmen of liberal ideas, who 
 have advocated and carried the reduction or repeal 
 of the usury laws. 
 
 In England, during the Regency, in 1818, a report 
 was made by a committee of Parliament, who exam- 
 ined the borrowers and the lenders, and came to the 
 unanimous conclusion that the usury laws ought to 
 be entirely repealed. That report went to the House 
 of Commons, but Parliament was not ready for it. 
 Adam Smith found no excuse for usury laws except 
 on two points, to protect spendthrifts and repress 
 projectors. Toward the close of his life, he read the 
 argument of Jeremy Bentham, and acknowledged 
 himself mistaken on those two points. So the Scotch 
 financier, McCulloch, and Stuart Mill, and other 
 writers of eminence, advocated the repeal of the usury 
 laws. But they could not, at first, carry it through 
 the House of Commons. It was opposed by a large 
 class of persons, but not the same class who have 
 
USURY LAWS 129 
 
 opposed it here. It lay by ten years; was brought up 
 again, and defeated; lay by ten years more, and in 
 1839 they went to this extent — they abolished the 
 usury laws on commercial paper that had less than 
 twelve months to run. Then, in 1850, they abolished 
 the usury laws on everything but loans on real es- 
 tate; and on those, interest could not exceed five per 
 cent. The great landed proprietors of England op- 
 posed the repeal, and were the last men to yield their 
 opposition, because they thought the usury laws en- 
 abled them to get money at lower rates on mortgage. 
 Here, with us, an opposition comes from a class of 
 small land-owners, on the same grounds. They think 
 they can get money for less, on their farms, if the law 
 is retained. 
 
 The law remained in that state about five years, 
 and I think it was in 1855 that England abolished 
 the usury laws altogether, by a bill similar in its fea- 
 tures to that which we are acting upon to-day, but 
 as to which I am ashamed to say, the mother coun- 
 try is twelve years in advance of us. Money still con- 
 tinues to be loaned in England at much lower rates 
 than here. It is an open market. Have the poor bor- 
 rowers ever complained .^^ We read with deep interest, 
 as we ought, all that concerns the middle and lower 
 classes of England; we read of the disabilities under 
 which the poor suffer; and we see the reports of the 
 processions, numbering some twenty thousand, who 
 lower their banners and cheer as they pass the United 
 States Embassy, and sing John Brown, and I would 
 ask if any of them complain because the usury laws 
 have been abolished.'^ Did Richard Cobden, does 
 John Bright or Stuart Mill, demand usury laws.'* 
 Was it an article in the creed of the Chartists.'* Look 
 
130 RICHARD HENRY DANA, JR. 
 
 over the banners in that vast procession the other 
 day in London. There was almost everything else 
 there, but not a word about usury laws. The common 
 people are satisfied that they are better off without 
 them. 
 
 Look at Holland. Holland is a free country, a coun- 
 try dear to every lover of liberty. Holland fought for 
 her freedom and religion, against Spain, in those no- 
 ble wars, for principles so dear to every lover of liberty 
 the world over, recorded with such spirit by our towns- 
 man, and — I regret to say — our late Minister to 
 the Court of Austria, a Boston boy. Holland has no 
 usury laws. But there are more poor, industrious 
 people in proportion to the population there, than 
 almost anywhere else. What is the rate of interest 
 there .f^ It varies from three to five and a half per cent. 
 
 You have a right to respond that this may be a 
 very good thing in England or Holland, but how will 
 it be in Massachusetts .^^ Let us look at the principle. 
 Gentlemen need take into their minds but a single 
 argument. If it were my own argument, I hope I 
 should not be so vain as to call it unanswerable; but 
 it is the argument of all the great writers for the last 
 quarter of a century, — an argument which has shown 
 from principle that the usury laws must be, and from 
 statistics that they are, worse than nothing. 
 
 With your leave, I will put the argument thus. 
 Suppose the natural rate of interest to be, here in 
 Massachusetts, seven per cent. By the natural rate, 
 I mean the rate it would come to, in the absence of 
 legislative interference, if the borrower and lender 
 came directly together in the market. Now appear 
 the philanthropists, and say that seven per cent is 
 too much for men to pay, and enact laws which pro- 
 
USURY LAWS 131 
 
 hibit the giving or taking more than six per cent. 
 Suppose there are fifty millions of capital in the mar- 
 ket to be loaned, when the usury law goes into opera- 
 tion. What will be the effect of the law? I think we 
 will all at least agree on this, that it will divide the 
 capitalists into three classes: those who will lend at 
 six per cent, those who will not lend at all, unless they 
 get their money's worth, and those who will disobey 
 the statute and take all they can get. I admit there 
 will be a few of the first class, men who will lend at 
 six per cent money that is worth seven. They are men 
 scrupulous about formal laws, although they see no 
 moral wrong in the forbidden act. They are in the 
 habit of investing in loans, and do not like to change 
 their habits, or are too old, or inexperienced, or timid, 
 to put their capital into business. But this class is 
 not large, and is diminishing every year. The second 
 class will not lend at less than the full value, and yet 
 will not take the risks or disrepute of violating a law, 
 nor resort to the circuities and chicanery and middle- 
 men such loans entail. They invest in government 
 securities at 7-20 per cent; or, if they are active and 
 enterprising, turn their capital into business, add their 
 own skill, care, and industry to it, and make twelve 
 per cent and more. The second class takes from the 
 private loan market a large part of the supposed fifty 
 millions, — perhaps a third or a half. The effect of 
 this is to raise the rate; for the supply is lessened, and 
 the demand is not, but becomes the more anxious 
 and eager. 
 
 Now, gentlemen will see to what condition such 
 legislation has brought the borrower. He must have 
 his money, or fail. It is no longer the natural rate 
 of seven per cent that he is to give, on perfect secu- 
 
132 RICHARD HENRY DANA, JR. 
 
 rity, but nine or ten per cent, and he is brought to an 
 inferior class of money-lenders. But this is not all. 
 Another element is forced in. There is insurance to 
 be charged for the risk the lender takes in lending on 
 illegal security; for, if the borrower will not turn 
 against him and refuse to pay the interest, the bor- 
 rower's assignee in bankruptcy, or his executor, may 
 feel it his duty to do so. Nor is that all. Something 
 is to be charged for the disrepute attending the trans- 
 action. But there is a larger addition still. These 
 transactions require secrecy, circuity, transfers of 
 notes, drafts, and fictitious exchanges, and above all, 
 the middlemen, who must be employed, that the real 
 parties may not be known. How much do these mid- 
 dlemen charge.^ That you never know. No man on 
 earth is so well placed for extortion as the middleman, 
 who holds the secret of both parties in his hand. As 
 you have brought your borrower down to dealing 
 with a less respectable, less responsible class of men, 
 he must bear the consequences. And what rate does 
 the distressed borrower at last pay for that which he 
 could have got openly, like a man, face to face with 
 the lender, at seven per cent, because you thought 
 to force by legislation the market rate below its nat- 
 ural level .^ 
 
 Mr. Speaker, I have been assuming, so far, that 
 the borrower offers satisfactory security. But sup- 
 pose he does not. An honest but poor man, with a 
 family, is a little behindhand, and must pay a debt, or 
 have his property taken on execution ; or an enterpris- 
 ing young man, with health and skill and character, 
 but no capital, wishes to borrow a sum to put with his 
 industry and skill, with a fair hope of profit. Neither 
 of these men can give perfect security. All hangs on 
 
USURY LAWS 133 
 
 their lives or health. Death, or a long fever, lasting 
 through the season, will leave them penniless ; and in 
 all probability, if they are young men, they hold their 
 houses under purchase-money mortgages, and can 
 give no landed security. If theoretically perfect se- 
 curity, driven to middlemen and circuitous trans- 
 actions, ends in giving ten per cent, where will such 
 borrowers as these be, in such hands .^ The strong and 
 enterprising young man will give the utmost that his 
 expected profits will allow him to give, without actual 
 loss, for he must work; but the distressed debtor must 
 sell, or let his creditor sell, all he has, to meet the 
 payment of his debt. 
 
 This leads me to call the attention of the House 
 to another anomaly of the usury laws. You put the 
 borrower under guardianship, as to money, and limit 
 him to six per cent, whatever the market rate, what- 
 ever his need, and whatever his security. But you 
 leave him his own master as to everything else. He 
 must not borrow money at seven per cent, but he 
 may sell the very ground under his feet. He cannot 
 be trusted in the money-market, but the pawnbroker's 
 is open to him. He may sell all he has, to gratify his 
 passions or to meet his necessities, and no one can 
 interfere to save his wife and children, unless he is 
 so far gone as to be no longer sui juris. Take the case 
 of the poor, honest debtor. Sickness or misfortune 
 has left him in debt, and a hard creditor, or an insti- 
 tution or trustee that acts by rule, is pressing him 
 to an execution. If he could borrow a thousand dol- 
 lars, on a year's or three years' loan, he could pay the 
 debt, and have a little with which to begin again. 
 But with his poor security, and the high state of the 
 market, he cannot get the money at six per cent. 
 
134 RICHARD HENRY DANA, JR. 
 
 You prohibit him from giving seven, even if he must 
 sell the land under his feet, the house over the head 
 of his wife and children, and all their useful or en- 
 deared furniture, which they may never get back, and 
 sell it all at a ruinous loss, as is always the case in 
 forced sales, — a loss of at least twenty-five per cent. 
 And this to save him from paying more than six per 
 cent! In forced sales, or sales on execution, it is known 
 that articles seldom realize over two thirds their 
 value, and then there are the taxable costs, and all 
 other expenses to be deducted. The debtor might 
 have saved all this by a loan for a year, more or less, 
 at the market value of his security. What shall we 
 say of such legislation .^^ Is it not preposterous.^ Is it 
 not discreditable. f* Is it not a shame upon our intelli- 
 gence and public spirit and humanity .^^ 
 
 But I have not yet presented to you the worst fea- 
 tures of your law. I have taken ordinary times, when 
 the natural rate is six or seven per cent on theoreti- 
 cally perfect security. But what shall we say of those 
 times of distress and panic, — of times when all rules 
 and rates fail, — when the strong men bow them- 
 selves.^ The gentleman from Walpole (Mr. Bird) has 
 told us, here in his place as a legislator, — of all others 
 bound to respect the laws, — he has told us that in 
 the crisis of 1857 he paid, once, five per cent a month. 
 He must meet his notes or fail. That was not all. He 
 felt bound in honor to pay his debts, if he could pos- 
 sibly get the money, that others might not fail who 
 depended on him. He had a friend who had the money; 
 it would bring more in the market, but he let Mr. 
 Bird have it at five per cent per month; and Mr. Bird 
 has told us it was the cheapest money he ever bor- 
 rowed, that he never paid interest so cheerfully, and 
 
USURY LAWS 135 
 
 that he felt grateful to the lender as a true friend in 
 need. After such a statement as this, — and it is but 
 a sample of what thousands can tell us in every time 
 of distress, — what is your six per cent law good for, 
 as a financial restriction? Its moral aspects I shall 
 have occasion shortly to call your attention to. As 
 soon as money begins to rise with the demand, and 
 failures thicken, capital, proverbially timid, begins 
 to withdraw itself, and as the crisis comes to its height, 
 some will not lend at all, and others only at enormous 
 interest; for it is in fact insurance upon ships on a lee 
 shore. Then the Jews emerge from their alleys, and 
 the curb-stone brokers swarm, and need and fear and 
 distrust and avarice act and react, until the end is a 
 panic. Are your usury laws of any value then, to 
 furnish money at six per cent? They are forgotten 
 or laughed to scorn. The man who cannot borrow can 
 sell, and merchants will sell at prices as ruinous as their 
 loans could possibly be. The usury laws are lost sight 
 of long before the panic is reached. Their effect is 
 felt only in the first stages, when, but for the law, 
 capital would be let at its proper rate. Then the law 
 drives away all who will not lend at the Quixotic rate 
 of six per cent, and gives over all doubtful security to 
 despair. In such times, its effect is to hurry the first 
 steps, and to turn a simple stringency into a distress, 
 and a distress into a panic. 
 
 Your laws make no allowance for changes in the 
 state of the market. The British corn laws had a slid- 
 ing scale. So, in several of the states, there is a scope 
 allowed under the usury laws. In Indiana, Illinois, 
 and Iowa, the rate is between six and ten per cent; 
 in Mississippi and Florida, between six and eight per 
 cent; in Michigan and Wisconsin, between seven and 
 
136 RICHARD HENRY DANA, JR. 
 
 ten per cent; in Minnesota, between seven and twelve 
 per cent; in Texas, between eight and twelve per cent; 
 while in California there have been no usury laws 
 since 1850, with ten per cent in the absence of a con- 
 tract. But we adhere to an iron rule, as they do in 
 New York; and an attempt to allow a margin from 
 six to eight per cent found no favor in this House. 
 Members talk as if there were something in nature 
 that pointed to six per cent; when, in fact, the rate 
 is rarely at six per cent. Not only do the rates al- 
 lowed by law in those states vary from six per cent 
 to twelve, but I hold in my hand a letter from one 
 of our first merchants, whose name would command 
 the respect of this House, as well for his philanthropy 
 and patriotism as for his financial skill, giving the de- 
 tails of the rates at which he has borrowed and lent 
 money for the last five years, on the best security, 
 and the average is nearer eight per cent than seven. 
 I have here also a schedule from the cashier of a bank 
 in State Street, giving the rates charged yesterday for 
 discounts on the best of paper, much of it from New 
 York. It gives the names of parties, the amounts and 
 terms. There is not one at six per cent, indeed none 
 below seven, and varying from seven to seven and 
 three fourths. Gentlemen will see from this how 
 openly their laws are violated, even by the banks; for 
 although these are National Banks, they are, by act 
 of Congress, bound by the several state laws, as to 
 discounts. 
 
 While the legal rate in New York is seven per cent, 
 Massachusetts capital will go there; not the small 
 quantities, I admit, for they will not pay for the trou- 
 ble and risk; but capital held in large masses, on which 
 a small advance insures a large profit. Rhode Island 
 
USURY LAWS 137 
 
 repealed her usury laws last year; and now, when 
 money rules high at Providence, Boston capital goes 
 there. 
 
 There are causes for these different rates, in differ- 
 ent states, as in the same states at different times, — 
 causes that are constantly in operation, and too sub- 
 tle and volatile to be held in the chains of a perma- 
 nent legislation. 
 
 I would now like to call the attention of the House 
 to the moral aspect of this question. The spectacle 
 on this floor the other day was a lesson not to be for- 
 gotten. We all knew that the usury laws were but 
 little regarded at any time, and were swept out of 
 sight in times of panic. But when a legislator rose in 
 his place, in the very hall of legislation, and told his 
 brother legislators, with an open brow and clear con- 
 science, that he had paid five per cent a month, and 
 thought it his highest duty to pay it, and esteemed 
 the man who lent him money at that rate his best 
 friend in need, did any of you think the less well of 
 our respected friend .^^ Did even the incongruity of 
 such a declaration from a law-maker suggest itself to 
 your minds .'^ But let me put you another supposition. 
 Imagine, if you can, that the gentleman from Wal- 
 pole had obeyed the laws against usury, and gone 
 down into bankruptcy, and swept others along with 
 him, who had trusted to his solvency, rather than pay 
 anything over six per cent : would you not have doubted 
 either his sanity or his good faith .^ But let me put the 
 case to you in a far stronger light. Imagine, if you 
 can, that having taken this money from his friend 
 at the agreed rate, and so saved himself and others 
 from bankruptcy, he had done what the law of Massa- 
 chusetts tempts him to do, expects him to do, and, 
 
138 RICHARD HENRY DANA, JR. 
 
 if law is law, I have a right to say, commands him to 
 do; suppose when pay-day came round, he had turned 
 upon his friend, refused to pay him any interest, and 
 deducted three times the excess from the money he had 
 borrowed! It is not possible even to suppose such a 
 thing of him; but suppose it of some imaginary man, 
 some ideal keeper of the law. He could not show his 
 face on 'Change! He could not have been elected 
 to this House, where the very law is made which he 
 had strictly followed ! 
 
 It is usually said that laws should not stand upon 
 the statute book which have not the moral support 
 of the community, because they lower the dignity of 
 all government, and demoralize the public mind by 
 familiarity with disobedience. But what shall we say 
 of laws which not only the moral sentiment does not 
 support, but which the natural sense of justice, the 
 instinct of honor, actually condemns.'^ In olden times 
 the taking interest above the legal rate was a crime, 
 punished by imprisonment. That penalty could not 
 be enforced, because public sentiment condemned it. 
 We receded so far as to make it a forfeiture of princi- 
 pal and interest. That failed, for the same reason. 
 Men thought it too hard, and would not enforce it. 
 We next receded with our penalties, until we came 
 to the moderate infliction of the loss of all interest 
 on the loan and a deduction from the principal of 
 three times the excess over the legal rate. But this 
 moderate penalty you cannot enforce. Yet it is all 
 you have left; for the transaction is secret and cov- 
 ered by a false statement of the principal sum, or by 
 other means, and unless the borrower turns against 
 the lender and testifies, you can do nothing with the 
 transaction; and the borrower had better pay any 
 
USURY LAWS 139 
 
 amount of usury than incur the total loss of credit 
 ever afterwards, which would follow his turning upon 
 the lender. Under usury laws the loan must always 
 bear the aspect of legality, and courts and juries ren- 
 der verdicts and judgments on extortionate loans 
 without suspecting it. The poor borrower must suf- 
 fer in silence, — must bleed to death in secret. But, 
 if there are no prohibitory laws, the rate actually paid 
 is more likely to be known, and public opinion be 
 brought to bear upon the unreasonable lender, and 
 sympathy, if not relief, extended to the borrower. 
 
 But in what attitude has this legislation placed our 
 honored Commonwealth? Unable to make usury a 
 crime, she tempts the borrower, by a large pecuniary 
 reward, to commit an act of baseness towards the 
 lender, for which the instincts of the meanest of her 
 citizens will despise him. In the darkest regions of the 
 criminal law, dealing with men of blood and fraud, 
 we tempt one to the betrayal of another, and employ 
 spies, and false colors; for such men are in a state of 
 war against society. We are dealing with moral guilt, 
 universally recognized as such, but even there, we 
 despise the thief that betrays the thief. But there is 
 no element of right or wrong about six per cent or 
 seven per cent. The community recognizes no ele- 
 ment of guilt in dealing with money at the market 
 rate, if there be no fraud or extortion. And for fraud, 
 or duress, or gross extortion, or undue advantage 
 taken, a court of equity will afford relief. But the 
 moral sentiment of the "least erected spirits" in 
 the community is above the temptation which your 
 legislation offers them, as the only means of enforc- 
 ing itself. It is not fit that the jurisprudence of Mas- 
 sachusetts should bear the shame longer. 
 
140 RICHARD HENRY DANA, JR. 
 
 Let us examine, Mr. Speaker, the reasons — I 
 would rather say the excuses — for maintaining this 
 system. All writers on political economy during the 
 last fifty years, of whom I have information, however 
 much they differ in other things, have agreed in con- 
 demning the usury laws. It is true the opponents of 
 our bill have exhumed a single pamphlet, written by 
 the late Mr. Whipple of Rhode Island, and spread it 
 about the House, not without some effect. But do 
 gentlemen know that, though republished some eight 
 or ten years ago, for a special purpose, that pamphlet 
 was written more than thirty years ago, as an article 
 in a law magazine, by a gentleman of the last genera- 
 tion, whose ideas were drawn from the generation 
 before that — before the time of Bentham, McCul- 
 loch. Mill, Wayland, and the encyclopaedists of Great 
 Britain and America .^^ Mr. Whipple advised Rhode 
 Island to increase the severity of her usury laws, and 
 to fall back upon the Statute of Anne. No doubt he 
 thought that if Rhode Island would only rest her 
 political system on the Charter of Charles II, and her 
 financial system on the Statute of Anne, she would 
 indeed be the model commonwealth of America. But 
 Rhode Island has followed the later and wiser advice 
 of her other eminent citizen. President Wayland, and 
 repealed her usury laws altogether, as have Holland 
 and California. Great Britain, I had the honor to 
 remind you, repealed hers twelve years ago, and any 
 man who would there ask for their reenactment would 
 be considered as insane as if he moved for the resto- 
 ration of the Heptarchy. 
 
 But the facts being all against the continuance of 
 the usury laws, what are the theoretic excuses for 
 their maintenance.'^ It is said that the borrowing class 
 
USURY LAWS 141 
 
 is the feebler class ; that the borrower is at the mercy 
 of the lender and needs protection. I hope I have 
 shown that, if this were true, the usury laws fail to 
 help him, at the only time he needs help, when the 
 rates of interest are high, or his security is poor, — 
 in fact that they make his condition the worse. But, 
 Mr. Speaker, the relations between the borrower and 
 the lender are not now, especially in New England, 
 what they were once in history. The borrower is 
 no longer the trembling suppliant at the threshold of 
 the patrician lender. Who are the borrowers now.'* 
 The railroad, manufacturing, steamboat, and mining 
 corporations. They are borrowers, — those great cor- 
 porations that are suspected of controlling the poli- 
 tics of our states and towns. The state and national 
 governments are borrowers. All mercantile enter- 
 prises require loans of credit; and the great merchants 
 and manufacturers are borrowers one day and lenders 
 the next. The great builders are borrowers. One of 
 the members from Boston, who called himself a me- 
 chanic, spoke warmly for the right of the poor me- 
 chanic to get his loan at six per cent. But I find, on 
 inquiry, that that member is a great builder; he builds 
 those large blocks of houses, too costly for you or me, 
 sir, to live in, and sells them for prices that we cannot 
 afford to pay. He buys land and builds his houses 
 upon borrowed money, and sells upon credit secured 
 by mortgage. He fears no usury laws, as a lender; 
 for his extra interest is put into the purchase money; 
 and no doubt he would be glad to cheapen the rate of 
 borrowing, where it is an actual money loan in the 
 market, for there he is a borrower. But, even so, I 
 hope I have shown that his calculations are mistaken. 
 Again, it is not the poor mechanic that is the borrower. 
 
142 RICHARD HENRY DANA, JR. 
 
 The journeymen the member from Boston employs 
 are not borrowers. Hired laborers in this country sel- 
 dom are. It is mostly enterprise that borrows, and 
 capital borrowing more capital. 
 
 Who are the lenders in this country.^ I know that 
 great capitalists and banks of discount are large 
 lenders; but men of moderate capital are also lenders, 
 sometimes singly and sometimes by association. But, 
 sir, by a miracle of this century, the poorer classes, 
 the day laborers, the seamstresses and household ser- 
 vants, the newsboys in the streets, have become cap- 
 italists, and lend to the rich and great. Formerly the 
 poorer class of laborers, laying up their small sums of 
 five or twenty dollars, too small to lend at interest, 
 hid them away in stockings, or buried them in chim- 
 ney-corners, and were tempted to spend them be- 
 cause they had them at hand and were gaining no- 
 thing from them. A benign Providence put it into 
 the heart and head of some persons, early in this cen- 
 tury, to establish a system by which these drops that 
 fell upon the earth only to sink into it, were saved and 
 gathered up into little rills, which flowed together and 
 formed a steady stream of public credit. These, sir, 
 are our savings banks. Some gentleman can perhaps 
 tell me the exact number of tens of millions in the 
 savings banks of Massachusetts to-day. [Mr. Plumer 
 of Boston. — Seventy millions.] These seventy mil- 
 lions, then, sir, constantly in the loan-market, are al- 
 most entirely the property of our poorer classes. They 
 form this new element that enters into the changed 
 relations of the borrowing and lending classes in New 
 England. Your usury laws extend to them; and, as 
 the trustees of those banks do not think it just to the 
 poor depositors to lend their money at six per cent, 
 
USURY LAWS 143 
 
 when they can lawfully get more, they have with- 
 drawn a large share of this seventy millions from the 
 loan-market, and invested it in government securi- 
 ties at over seven per cent, thus diminishing the sup- 
 ply, and necessarily increasing the rate of interest. 
 
 It must be remembered, too, that the borrower in 
 the small country town need no longer be subject to 
 the one rich lender of the town. The rapid diffusion 
 of information by railroad, telegraph, post, and es- 
 pecially the daily papers, will carry the rates of the 
 money-market almost daily into the remotest towns 
 of New England. Money will find its level, whether 
 on the flat of State Street, or on the bleak hill of the 
 remote town of Peru, whose representative addressed 
 us yesterday. 
 
 The only practical objection to the repeal seemed 
 to me to be the fear that the banks of discount might 
 combine and keep up an artificial rate of interest. I 
 have made careful inquiries on this subject, and am 
 satisfied that there is no more practical danger on that 
 head than the community must always incur in its 
 financial transactions. The banks are numerous. 
 There will be competition among them. And there 
 is not only the competition of private lenders at home, 
 but the competition from abroad. Capital is drawn 
 toward demand. State lines and town lines are disre- 
 garded. Loans are made in a few minutes by tele- 
 graph; and it will more and more be the case that, 
 when an inadequacy of supply to the demand, or a 
 combination of lenders, has raised the rate of usance, 
 an influx from abroad will bring it to its natural level. 
 
 I desire to express my thanks to the House for the 
 kind attention they have given me. My wish has been 
 to satisfy the minds of the doubtful, and if possible to 
 
144 RICHARD HENRY DANA, JR. 
 
 make converts of opponents. As for myself, sir, I shall 
 vote for the repeal of the usury laws, because I do not 
 think they aid the borrower, but rather bring him to a 
 worse condition than he would be in, in an open mar- 
 ket. They have balked the humane purposes that gave 
 them life. I vote for their repeal, because I think 
 them in violation of the immutable laws of trade, and 
 therefore necessarily leading to evil ; because they are 
 of no effect when the market-rate is equal to or below 
 the legal rate, and, when it is above, tend to fright- 
 en away capital, induce chicanery, circumventions, 
 frauds, and go-betweens, and to introduce the borrower 
 to the worst class of lenders. I vote for their repeal, 
 because they familiarize the community to the sight 
 of a disobedience of law by the best of citizens, and 
 consequently to a severance of law from morals. I vote 
 for their repeal, because the steadily advancing public 
 sentiment, gradually enlightened by generations of 
 experience, no longer believes them politic or just, 
 or regards the breach of them as a crime, an immoral- 
 ity, or even an impropriety. And lastly, sir, I vote 
 for their repeal, because they place our beloved Com- 
 monwealth in the undignified position of tempting 
 the borrower to commit the most ignominious of 
 offenses, in the vain effort to prevent that which 
 no one considers to be a crime. 
 
VI 
 
 FREE SOIL MEETING, 1848 
 
 At Boston 
 
 "Remarks on taking the Chair at the Free Soil Meeting, 
 AT the Tremont Temple, Friday Evening, July 7, 1848. 
 
 I THANK you for the honor you do me (and it is 
 certainly a gratifying one) by placing me in this po- 
 sition. Before I accept it, and enter upon its duties, 
 it is perhaps but fair that I should be permitted to 
 define it. If in doing this I appear to speak much of 
 myself, I have the apology of believing that I speak 
 the feelings of hundreds, perhaps of thousands, of the 
 young men of the Whig party of Massachusetts. Since 
 the nomination of General Taylor was announced, I 
 have spoken with them constantly, I have met them 
 at the corners of streets, in court rooms, in public con- 
 veyances, and I believe I speak their feelings when 
 I speak my own. I believe you will hear from them 
 before many days, or many weeks, are gone by. 
 
 I am a Whig — a Whig of the old school; I may 
 say, without affectation, a highly conservative Whig. 
 I voted for Mr. Winthrop last year, and under the 
 same circumstances I should vote for him again. A 
 war declared by the law of the land is a war for you 
 and for me. I have voted for every Whig nomination 
 since 1840, when I cast my first vote. I am in favor 
 of supporting all the compromises of the Constitution, 
 in good faith, as well as in profession. 
 
146 RICHARD HENRY DANA, JR. 
 
 Why, then, am I here? I understand this to be 
 no meeting for transcendental purposes, or abolition 
 purposes, or politico-moral reform. It is a meeting 
 of those who desire to see if they cannot do better than 
 vote for either Cass or Taylor; to see if the twenty 
 millions of America cannot furnish a better candi- 
 date than either of them. You are not assembled in 
 any hostility to the South. There is much to admire 
 in the Southern character; there are some points in 
 which it is superior to our own, as some in which we 
 think it otherwise. We are ready to vote for General 
 Taylor if he owns two hundred thousand slaves in- 
 stead of two hundred, if he is with us against the ex- 
 tension of slave territory. The " subject of our story " 
 is simply this. Massachusetts has deliberately taken 
 a position in favor of excluding slavery from new 
 territories, leaving each State now in the Union to 
 manage its own slavery. Her legislature has almost 
 unanimously passed resolves to that effect. Her Whig 
 Conventions, in counties, have, almost if not quite 
 without exception, done the same. The Convention 
 at Springfield last autumn unanimously passed the 
 resolution I hold in my hand : — 
 
 " Resolved : — That if the War shall be prosecuted to 
 the final subjugation and dismemberment of Mexico, 
 the Whigs of Massachusetts now declare, and put this 
 declaration of their purpose on record — that Massa- 
 chusetts will never consent that American territory, 
 however acquired, shall become a part of the Ameri- 
 can Union, unless on the unalterable condition that 
 'there shall be neither Slavery nor involuntary ser- 
 vitude therein, otherwise than in the punishment of 
 crime.' " 
 
 Now, we are here because we intend to adhere 
 
FREE SOIL MEETING, 1848 147 
 
 to this resolution. The dignity of Massachusetts re- 
 quires her to adhere to it. Not only must we adhere 
 to it in words, but in action, in votes, and at any 
 political hazard. 
 
 When General Taylor was nominated, I feared, in 
 common with others, that voting for him would be an 
 act of hidijfference, if not of abandonment, of the Massa- 
 chusetts platform. I have the honor of personal friend- 
 ship — they will allow me to say so — with many of 
 the leading Whigs of this city. I conversed with them, 
 told them my objections, asked them, entreated them 
 for some indications, some evidence that General 
 Taylor was with us as to Free Soil. Private conver- 
 sations are to be kept private, but I may say they were 
 entirely unsatisfactory. The farther I inquired the 
 worse it became. Their public speeches and letters 
 we have a right to examine, and what are they? Si- 
 lence — dead silence! on the whole subject. Mr. 
 Choate has spoken in Boston, and Mr. Lawrence in 
 Burlington. They have talked upon tariffs, currency, 
 war, internal improvements, cotton, — everything 
 but the new territories. This was not forgetfulness. 
 It weighed heavily on their minds. If they were fol- 
 lowing the Wilmot Proviso to its grave, they could 
 not have preserved a more respectful silence. Had 
 they been under vows of silence, they could not have 
 kept them more unexceptionably. Now, one of two 
 things is true : there is no escape from it. Either these 
 gentlemen do not think the Free Soil question of conse- 
 quence enough to speak iipon, or they feel themselves to 
 be in a position where they cannot speak upon it. With 
 some it is the one, and with some the other; but the 
 one or the other with all. We do not mean to stand in 
 such a position. The South triumphs at the nomination 
 
148 RICHARD HENRY DANA, JR. 
 
 of General Taylor, and proclaims it as a defeat of the 
 Wilmot Proviso; and the North is silent. The South 
 wants nothing better than silence or indifference at 
 the North. The indications are not to be mistaken. 
 Acquiescence in General Taylor's nomination is to 
 abandon the Free Soil question. At best, it is to give 
 it its chance. It will be so understood. It is so under- 
 stood now. The men at the South who risk every- 
 thing else, to defeat the exclusion of slavery from the 
 territories, go for General Taylor, and have so from 
 the first, heart and soul; and if anybody is deceived, 
 it will be the people at the North and not they. They 
 know their man. They feel more sure of him than 
 they do of General Cass. Our politicians are not de- 
 ceived. Their silence shows they are not. 
 
 It is said that Massachusetts will stand alone. Be 
 it so. Let us have a lone star at the North, as well as 
 at the South. She has taken her ground. There are 
 her resolutions, which I have read to you. " Look at 
 her, where she stands — there she will stand forever!" 
 But it will not be so. The indications are that other 
 states will act with us. The race is not to the swift, 
 nor the battle to the strong. This, if I understand it, 
 is an appeal to the reason, the instincts, the great 
 heart of the people. We do not rely on organizations, 
 nor on this man or that man, nor on the bait of office- 
 holding. We have no power to assign parts in the 
 drama of political life. It is an appeal from the poli- 
 ticians and organizations that have failed of their 
 duty, to the right reason and right feeling of the peo- 
 ple. I do not say that it will succeed. It is a matter 
 of duty. If it does not, we are but sufferers in a com- 
 mon calamity. 
 
VII 
 
 BUFFALO FREE SOIL CONVENTION/ 1848 
 
 Speech at Faneuil Hall, August 22, 1848 
 
 Reporting the Doings of the Buffalo Convention, in 
 Behalf of the Boston Delegation. 
 
 Mr. President, Fellow Citizens: The customs 
 of these occasions makes it proper that your dele- 
 gates should report to you, in Faneuil Hall assembled, 
 the manner in which they have discharged the duties 
 of their trust. We rejoice that we have nothing to tell 
 you but good news, tidings of enthusiasm unparal- 
 leled, and of absolute unanimity. 
 
 We left our homes a few days before the time ap- 
 pointed for the session, and as we neared the point 
 of attraction, we found ourselves in a great and at 
 every step increasing current of intelligent, earnest 
 men, American citizens, of all political parties, — 
 who, in the eloquent language of Mr. Van Buren's 
 letter, "felt themselves called upon by considera- 
 tions of the highest moment to suspend rival action, 
 and unite their common energies for the attainment 
 of a common end, an object sacred in sight of Heaven, 
 and due to the memories of the great and just men 
 long since made perfect in its Courts." At Buffalo 
 was assembled a host of men not to be counted by 
 hundreds but by thousands. All day and all night, 
 
 1 See Life, vol. i, pp, 131-144. 
 
150 RICHARD HENRY DANA, JR. 
 
 the steam engines toiled along the iron tracks, and 
 the steamboats ploughed the waters of those Medi- 
 terranean seas, with their pillars of cloud by day and 
 fire by night, bringing up the faithful Israel to this 
 great solemnity. — There were Whigs, who had 
 waited in vain to see their own party take up, in good 
 earnest, the cause of Free Soil. There were Demo- 
 crats, who had borne long enough the hard yoke of 
 party discipline, and had at length broken the band 
 in sunder and cast its cords from them. There were 
 men of the Liberty party, who had toiled and suffered 
 fifteen years to bring about this result, full of hope 
 themselves, and bearing with them the memories of the 
 martyrs in their cause, the Holleys and Love joys who 
 had died before the sight. But magnificent and in- 
 spiriting as this spectacle was, there were many causes 
 of apprehension and misgiving. We found that no 
 reference had been had to the suggestion from Colum- 
 bus, as to the choice of delegates, but that they were 
 chosen in every variety of manner and proportion. 
 Massachusetts, as she usually does, had followed the 
 rule, and so had some other states, but many states 
 had delegates by the hundreds, some towns alone had 
 sent fifties, and the Clay Whigs of New York City 
 had ninety delegates. Could this vast mass, so con- 
 stituted, be organized into a deliberate, representa- 
 tive assembly ! And without that, no one would feel 
 bound by its action. Nor was this all. The Demo- 
 crats of New York had already nominated their can- 
 didate, and so had the Liberty party. Would these 
 parties and their candidates come into the Conven- 
 tion on equal terms with the Whigs, and with each 
 other, and abide its result? Unless this was done, 
 the Whigs could not, with dignity, go into the ballot. 
 
BUFFALO CONVENTION, 1848 151 
 
 Then, too, our friends of the Taylor and Cass news- 
 papers were particularly attentive to our interests. 
 At first they sympathized with us and were afraid 
 we should be disappointed, so few persons were com- 
 ing to Buffalo. And then, when the streets of Buffalo 
 were all but impassable, they said that such a vast 
 mass could never be organized. They spoke of plots 
 and bargains, and warned the Whigs against the 
 Democrats, and the Democrats against the Whigs, 
 and they warned us both against the Liberty party, 
 and the Liberty party against both of us. But when 
 we came to look one another in the face, to join coun- 
 cils together, all the apprehensions and suspicions 
 vanished in a moment. A meeting of informal com- 
 mittees from each state was held, and a plan of or- 
 ganization recommended, which was adopted and 
 carried into effect without difficulty. There was to 
 be a mass convention, consisting of all persons who 
 had come up to Buffalo for Free Soil. This was to 
 meet under the tent, in the park. There was to be a 
 select, representative, deliberate assembly, called the 
 "Committee of Conference," to sit with closed doors, 
 and decide upon the main questions, and refer them 
 to the mass convention for ratification. This select 
 convention was to consist of delegates from each state 
 represented, equal in number to three times its elec- 
 toral vote, namely, six delegates at large, and three 
 for each congressional district; the intention being to 
 allow one from each of the former political parties for 
 each district. It was an interesting and instructive 
 sight to see the masses from each state meet at their 
 headquarters and select their representatives, at 
 large and from each district, fairly from the three 
 former parties, and commit the entire power to this 
 
152 RICHARD HENRY DANA, JR. 
 
 select representative assembly, without a doubt or 
 suspicion. And I take it upon myself to say that the 
 Committee of Conferees, or Delegates' Convention, 
 as it was more generally called, was divided almost 
 mathematically into three equal parts, representing, 
 in each state and district, the three former parties. — 
 And it is worthy of note, that Mr. Van Buren went 
 into that Convention with only one third of the dele- 
 gation from his own state professed Democrats, while 
 one third were Whigs, and the other third Liberty 
 party men ; and when the roll of that State was called 
 every third man, almost invariably, gave the name 
 of John P. Hale. 
 
 On Wednesday morning the mass convention as- 
 sembled, and on motion of Preston King of New York, 
 Charles Francis Adams of Massachusetts was elected 
 its President. And when Mr. Adams came upon the 
 platform, when the eye of that vast assembly caught 
 the almost preternatural resemblance he bears to his 
 father and grandfather before him, when they saw 
 the simple badge of mourning about his hat, bringing 
 before them the image of his venerated father, and 
 when the reverend gentleman who opened the Con- 
 vention with prayer asked the blessing of heaven 
 upon its officers, and for the President, that the man- 
 tle of the father might fall upon the son, the heart of 
 that great assembly was moved as one man ; and from 
 that hour a strong personal interest was created in 
 Mr. Adams, which increased every moment, aided by 
 his gentlemanlike demeanor, the excellent address he 
 made to the assembly, and their confidence in his in- 
 domitable resolution and energy, the characteristics 
 of his race. 
 
 Soon afterwards, the Convention of Delegates met. 
 
BUFFALO CONVENTION, 1848 153 
 
 in a small church without galleries, and sat with closed 
 doors, not even admitting a newspaper reporter; for 
 we were determined not to be overawed by cheerings 
 up and hisses down from the galleries, as they were 
 at Philadelphia and Baltimore, and to have no lobby 
 members, and side-aisle members; but each man sat 
 in the seat allotted to him, under an impending sense 
 of personal responsibility. In the proceedings of our 
 Convention, there was one thing in which we differed 
 from both the other conventions. We would not per- 
 mit the subject of the Presidency to be stirred, we 
 would not suffer a man to speak upon the Presidency, 
 until we had adopted a Platform of Principles. Un- 
 like the Philadelphia Convention, which adopted its 
 candidates first and its principles — never, we would 
 do nothing until our principles were settled and de- 
 clared. A committee of three from each state was 
 appointed by the mass convention, to report a Plat- 
 form of Principles, and the record of our Convention 
 reads that we immediately adjourned to such time as 
 this committee should be prepared to report. This 
 committee was composed of one from each political 
 party from each state, appointed by the delegations 
 from the several states. It referred the subject to a 
 sub-committee of seven, fairly composed, who care- 
 fully considered the subject for the greater part of 
 the day and night, and agreed upon a platform, unan- 
 imously. For its authorship, we are indebted, it was 
 understood, chiefly to Mr. Chase of Ohio and Mr. 
 Butler of New York. The sub-committee reported it 
 to the large committee, which, after discussion and 
 some amendments, accepted it unanimously. It was 
 then reported to both conventions, and adopted, 
 without debate, by acclamation. Every sentence, 
 
154 RICHARD HENRY DANA, JR. 
 
 every paragraph, was cheered into its legal existence. 
 We did not adopt it, as a person adopts a child. We 
 felt that it was the common mother of us all! We 
 hailed it, and rejoiced that we had it to stand upon; 
 and from that moment we felt that the path was clear 
 and bright before us. 
 
 Having avowed our principles, we proceeded to 
 the nominations. And here we determined to know 
 first the exact position of each candidate. We would 
 leave nothing to letters in gentlemen's pockets, but 
 required a distinct statement, and somebody to be 
 responsible for it. We nominated three candidates, 
 Mr. Hale, Judge McLean, and Mr. Van Buren. Mr. 
 Chase of Ohio, a near relative of Judge McLean's, 
 who had his authority, rose and stated that Judge 
 McLean positively refused to be a candidate for either 
 office. His reasons for this, you have seen in his let- 
 ter. I understand them to be these. He is a judge on 
 the bench of the Supreme Court. By the recent action 
 of the Senate, he felt that he might be called upon, 
 in his judicial capacity, to decide some of the prin- 
 ciples laid down in our platform, and to which we 
 should require his assent; and he was not willing, his 
 friends would not permit him, to resign his seat, that 
 Mr. Polk might have an opportunity to put a North- 
 ern dough-face in his place. These and other reasons, 
 satisfactory to himself and his friends, induced him 
 to decline the nomination. But, said Mr. Chase, — 
 his feelings are with us. The position of Mr. Van 
 Buren, the turning point of the Convention, was now 
 to be declared, and for that purpose we called upon 
 Mr. Butler. 
 
 Mr. Butler responded in a long and able speech, 
 the material part of which was substantially this. 
 
BUFFALO CONVENTION, 1848 155 
 
 When the Free Soil Democrats of New York, com- 
 monly called Barnburners, left the Baltimore Con- 
 vention, and determined to call a convention at Utica, 
 they offered the nomination for the Presidency to the 
 principal Democratic statesmen at the North. But 
 not a man could be found to accept it. There was no 
 expectation, then, that a national Free Soil party would 
 be formed. The candidate would have everything to 
 endure and nothing to gain, for their utmost hope was 
 to keep alive a Free Soil party in New York as the nu- 
 cleus of a party which at some future day might be car- 
 ried forward to success. All other candidates having 
 declined, the mass of the Convention determined to 
 force the nomination upon Mr. Van Buren. This re- 
 sult his son, and other personal friends, endeavored 
 to avert, but the Convention carried it by acclama- 
 tion. They said they knew enough of Mr. Van Buren 
 to know, that if they could satisfy him that, unless 
 he accepted the nomination, the last hope of a Free 
 Soil Democratic party would fail, and with it perhaps 
 the hope of Free Soil itself in New York, he would 
 not decline. Nor were they deceived. He accepted 
 the nomination. And here let me say, as a Whig, as 
 one nurtured in a dislike and suspicion of Mr. Van 
 Buren, that I do not see how we can deny him the 
 credit of disinterestedness and magnanimity in this 
 act. He had everything to suffer and nothing to gain. 
 He had to sacrifice the friendships of years, the asso- 
 ciates of a long life, and to meet the most formidable 
 of all enemies, former political friends. He had to go 
 through the terrible ordeal of a Presidential cam- 
 paign, without the slightest hope of success. Having 
 thus forced the nomination on Mr. Van Buren, his 
 friends were not a little embarrassed about the Buf- 
 
156 RICHARD HENRY DANA, JR. 
 
 falo Convention. We would require them to come 
 into it on equal terms, to abide its result. Could they 
 go to Mr. Van Buren and ask him to let them aban- 
 don a nomination which they had forced upon him.f' 
 But their embarrassment was relieved by a letter 
 which Mr. Van Buren wrote, of his own motion, ad- 
 dressed to the New York delegation at Buffalo. In 
 this letter, which you have seen, he says it occurred 
 to him that he might relieve them from embarrass- 
 ment, and aid in causing the harmonious result of the 
 Convention, by authorizing them to abandon the 
 Utica nomination. He did so, assuring them that as 
 they knew he had accepted it unwillingly, so he should 
 be perfectly content to have another nominated in 
 his place. His friends assumed the responsibility of 
 acting upon this letter, and put Mr. Van Buren fairly 
 upon the Convention, on equal terms with the other 
 candidates, to abide the result of the ballot. 
 
 A friend of Mr. Hale then rose, and said that Mr. 
 Van Buren authorized them, if the platform of prin- 
 ciples was satisfactory, to abandon his nomination 
 and put him fairly upon the Convention, to serve the 
 cause either as captain, officer, or private. 
 
 All embarrassments were now removed, and we 
 had a fair field and two candidates before us, on equal 
 terms, but both Democrats — both Democrats. I 
 confess this was a mortifying moment for a Whig, 
 and especially for a Massachusetts Whig. Where, 
 then, was the great sun of our firmament.^ Hidden 
 behind a dark and impenetrable cloud. May that sun 
 never go down in a cloud! The monument of free- 
 dom which we have reared, his hand has not builded; 
 but, in his own immortal words, may the last rays 
 of his setting sun linger and play about its summit! 
 
BUFFALO CONVENTION, 1848 157 
 
 Of all the prominent Whig statesmen, there was not 
 one willing to put himself upon our Convention, and 
 abide the issue of our cause, — no, not one. If there 
 is a Whig in Faneuil Hall who doubts about the nom- 
 ination of Mr. Van Buren, let him name to me a sin- 
 gle Whig statesman of the first class, fit to be the head 
 of our party, whom we could have put in nomination, 
 or let him forever after hold his peace. 
 
 The Whigs were a fair third of the Convention, and 
 we held the balance of power between Mr. Hale and 
 Mr. Van Buren. And in this connection let me say a 
 word about Mr. Hale. He is a young man, younger, 
 I believe, than any of our present delegation in Con- 
 gress. He has suddenly risen to an eminence, unex- 
 pected to himself and his friends, on account of the 
 manly stand he took on the slavery question in the 
 politics of his own State. He has not had an enlarged 
 experience in public affairs. And I know it to be a 
 fact that Mr. Hale himself was satisfied, from the first, 
 that it was far better for him to abide his time, than 
 to be put forward prematurely for the highest office 
 in the gift of any people. And if Mr. Hale does abide 
 his time, the people will, in due season, give him the 
 proper reward, whatever that reward may be. Mr. 
 Van Buren, on the other hand, has held every variety 
 of civil office, has been President of the United States, 
 and after a most enlarged experience, has had the 
 benefit of eight years of private life, eight years of 
 retrospection, of sober second thought. And although 
 the slavery question is the great question, yet no one 
 can tell what issues the state of foreign affairs, and of 
 our relations at home, may present to the country, 
 during the next Presidential term. We thought, there- 
 fore, that, all things considered, Mr. Van Buren was 
 
158 RICHARD HENRY DANA, JR. 
 
 the stronger and fitter candidate. But there was no 
 plan or concert about voting. When the roll was 
 called, I did not know how a man was going to vote, 
 nor did a man know how I was going to vote. Each 
 man voted on his individual responsibility. I am not 
 obliged to say, but I prefer to say, that I gave my vote 
 for Mr. Van Buren. All but four of the Whig dele- 
 gates from this State did the same, and those four 
 threw away their votes, on the informal ballot. 
 
 We had no actual ballot, but the roll was called and 
 each delegate gave the name of the candidate he pre- 
 ferred, it being announced that this was not bind- 
 ing either on the Convention, or on the delegate vot- 
 ing. Three of the most prominent men of the Liberty 
 party gave the name of Mr. Van Buren, and many 
 of the others who named Mr. Hale did it rather for 
 the purpose of giving Mr. Hale a handsome demon- 
 stration, which he deserved, than because they actu- 
 ally desired to have him nominated. Forty-one Whig 
 votes were thrown away, but these would have been 
 given, no doubt, for Mr. Van Buren, on an actual 
 ballot. At the close of the roll, it appeared that the 
 majority was for Mr. Van Buren. Immediately Mr. 
 Joshua Leavitt of this State rose and said he had a 
 word to say in behalf of the Liberty party. He was 
 called to the platform, and in a speech of about twenty 
 minutes, which, under its circumstances, I have never 
 heard surpassed for effect, sketched the history of 
 the Liberty party. He told us what that party had 
 done and suffered to bring about this result. He told 
 us what they had undergone in their feelings and 
 reputations, in their social and private relations, in 
 public attacks and persecutings from city to city — 
 how they had been between the parties as between 
 
. BUFFALO CONVENTION, 1848 159 
 
 the upper and nether mill-stone; but now the time 
 was come for them to deliver up their beloved organ- 
 ization, for which they had sacrificed so much, to 
 sacrifice their favorite candidate to whom they were 
 bound by strong and increasing attachment. There 
 was hardly a dry eye among the Liberty party men 
 in that house. He ended by moving the unanimous 
 nomination of Martin Van Buren. This was seconded 
 by Mr. Lewis of Ohio, in an eloquent and touching 
 speech, and was carried by acclamation, without one 
 dissenting or doubtful voice. 
 
 Having settled the question of the Presidency, we 
 proceeded to the Vice-Presidency. It was understood 
 that as the candidate for the Presidency was a Demo- 
 crat, the candidate for the Vice-Presidency should be 
 a Whig. This shut out Mr. Hale, and his friends made 
 a second sacrifice by withdrawing him from the bal- 
 lot for that office. As Mr. Van Buren was from the 
 East, it was understood that the nomination for the 
 Vice-Presidency should lie with the West, and we 
 adjourned for an hour and a half to give the Western 
 members opportunity to confer, with the understand- 
 ing that Ohio, as the principal Western state, should 
 ascertain and declare the opinions of the others. Well, 
 fellow citizens, the members from Ohio met, and they 
 were unanimous for Mr. Adams. They said he was 
 the man, his was the name, for the day and the times. 
 They wished to vindicate the memory of his father, 
 who had contended almost single-handed on the floor 
 of Congress for the right of petition. They knew in 
 Mr. Adams the author of those legislative resolutions 
 which, in spite of the reluctance of some, and the in- 
 difference of many, have kept Massachusetts an- 
 chored to the cause of Free Soil. They said they 
 
160 RICHARD HENRY DANA, JR. 
 
 wished to show what they called (I do not use the 
 term) the cotton Whigs of Massachusetts that they 
 appreciated, at the West, the labors of Mr. Adams. 
 The other states consulted, Indiana, Illinois, Michi- 
 gan, Wisconsin, and Iowa, and they were determined 
 upon Mr. Adams. So were the Pennsylvanians, six 
 and sixty good men and true. A committee from the 
 Ohio delegation united upon Mr. Adams. I saw him 
 immediately afterwards. He was as much affected as 
 surprised by the announcement. He told them it 
 would not do; that the understanding was it should 
 be a Western candidate. No, sir, answered these 
 whole-souled men of the West, the understanding was 
 that it should be a Western nomination ! Mr. Adams 
 told them he would have nothing to say about it, that 
 he would refer it entirely to the Massachusetts dele- 
 gation, and asked them to come to us for an answer. 
 At his request, Mr. Phillips called us together and 
 stated to us his position. He desired Mr. Phillips to 
 say to us that if for any reason we thought it more ex- 
 pedient that the nominee should be a Western man, 
 we should say so to the Ohio gentlemen, and suggested 
 to us that although these gentlemen might have an 
 inclination towards him at Buffalo, their constituents 
 at home might feel differently. He also suggested a 
 loss of influence to himself and others who stood like 
 him, at home. 
 
 We considered these things, but we found that the 
 current of feeling had set towards Mr. Adams in a 
 manner that was irresistible. We therefore told the 
 Ohio gentlemen that we should not advocate the 
 claims of Mr. Adams, nor act for him, nor do any- 
 thing about it, but leave the matter entirely with 
 them; yet, if they chose to come to Massachusetts 
 
BUFFALO CONVENTION, 1848 161 
 
 for their candidate, and to take Mr. Adams, we were 
 much obliged to them. 
 
 When we met, after the adjournment, a venerable 
 gentleman from Ohio, with gray locks, rose and said 
 he had a word to say for Ohio and the West. He told 
 us that they were agreed to nominate Charles Francis 
 Adams of Massachusetts! Never in my life have I 
 heard such an acclamation as burst from that as- 
 sembly ! We think we know something about enthu- 
 siasm; but we know nothing about it, here. You 
 should see those Western men spring upon the benches, 
 on the tops of the railings, and throw their hats into 
 the air, ay, to the ceiling's top! For our work was 
 done! We had adopted our platform unanimously, 
 and nominated our candidates unanimously. Our 
 nominations were made known to the mass conven- 
 tion in the tent, and there they were received with no 
 less unanimity and enthusiasm. We heard their shout- 
 ings, and they heard our shoutings, and for a time 
 it seemed as though the whole city of Buffalo was 
 going up with one common acclamation. 
 
 This great Convention adjourned. But I should 
 do injustice to the spirit that prevailed there, did I 
 not tell you that every morning's sun at Buffalo, as 
 it rose, saw this vast assembly met for offices of prayer 
 and praise. And when we adjourned on Thursday 
 night, it was to meet again on Friday morning to 
 unite in a common thanksgiving to the Disposer of 
 all events, who had enabled us to come to this wise 
 and harmonious conclusion. There is not a spot that 
 the sun shines upon where these events could have 
 happened but in the free states of North America; 
 where so many thousand men, of different political 
 parties, could have met in one place, organized a 
 
162 RICHARD HENRY DANA, JR. 
 
 representative, deliberative assembly, remained in 
 session three days, adopted a complete set of po- 
 litical principles, and their candidates, with entire 
 unanimity, and dispersed without a single unpleasant 
 occurrence, and all without the aid of the slightest 
 civil force. If there is a man who doubts the capa- 
 city of the Anglo-Saxon race of North America for 
 self-government, he should have been at Buffalo and 
 learned this lesson. 
 
 When I say that all our proceedings were unani- 
 mous, I must allude to a dissatisfaction that existed 
 in one quarter, — I mean among the Taylor and Cass 
 newspapers. They could not understand it! It was 
 past all comprehension! All their hopes and our ap- 
 prehensions were falsified, and this incredible work 
 was done before their eyes. As soon as they recovered 
 from their surprise, they began to ask, — What charm, 
 what incantations, and what mighty magic, — what 
 medicines potent o'er the blood, had brought us to 
 this state? And they gathered up their suspicions and 
 misgivings and put them in shape, entitling the com- 
 pound "The way it was done." Now, Mr. President, 
 and gentlemen, there was a secret about this business. 
 It is this: There was a principle at the bottom of it. 
 Nothing else could have insured this result, in the 
 nature of things and the nature of men. This only is 
 the magic that we used! This, Messrs. Editors, was 
 "the way it was done!" This it is, Mr. Winthrop, 
 that maketh men to be of one mind in an house ! 
 
 This vast assembly of intelligent, earnest men has 
 dispersed. Where are they now? They are beside our 
 rock-bound or our sandy coast; along the hills and 
 valleys, and in the cities and towns of New England. 
 They are at the South, by the banks of the Potomac 
 
BUFF.\LO COX\'EXTION, 1848 163 
 
 and the Shenandoah; in the cities and villages of the 
 great West, beyond the Falls of St. Anthony and the 
 Sault Sainte Marie. They are beside the domestic 
 hearths and domestic altars of an American people. 
 And with such advocates, such missionaries, such evan- 
 gelists, sooner or later, we cannot but succeed. I thank 
 you for having permitted me, by your votes, to take 
 a part in this Convention. It is something that a 
 man may remember for life, and his children after him. 
 But my duty for this evening is performed. If the 
 Presidency were our ultimate object, he should see 
 the expediency of a choice between two evils. But the 
 Presidency is only one of the means to an end. The 
 end we aim at is the ultimate success of the Free Soil 
 system. To insure this, we must have an organized 
 demonstration of public sentiment, a means of syste- 
 matic, continuous, certain, popular action. Never has 
 there been a time, in the history of this country, when 
 each man's vote will tell so much as now. Those who 
 understand that president-making is the ultimate ob- 
 ject of parties, think we are mad in voting for a third 
 candidate; but those who see that the end is the ulti- 
 mate success of a system, must see that we are taking 
 the only course that leads to it. It is not for us who 
 are putting on our harness to boast ourselves as those 
 who put it off. We have a duty to perform. Success 
 in this presidential campaign is not our motive. It 
 is only one of our objects, one of the means to our 
 end. When and in what we shall succeed, we cannot 
 know now; but of this we feel assured — our cause 
 is just — our union is perfect. 
 
VIII 
 THE GREAT GRAVITATION MEETING 
 
 [This parody on the Fugitive Slave Law for the "preserva- 
 tion" of the United States Constitution ("gravitation") with 
 its slavery compromises, was written by Mr. Dana and pub- 
 lished November 21, 1851, about fourteen months after the 
 passage of the law.^ 
 
 Mr. Dana, and men of his way of thinking, did not object to 
 a fair and just fugitive slave law under the United States Con- 
 stitution as it then was. This is clearly shown in Mr. Dana's 
 Manchester, New Hampshire, speech of February 11, 1861, urging 
 every reasonable conciliation with the Southern states just as 
 some had seceded and others were in doubt, and before any 
 act of war. What he did object to was the iniquitous form of 
 this particular Fugitive Slave Law, which antagonized almost 
 every principle of legal procedure established to secure justice. 
 
 There are many provisions in this law that are bad enough; such 
 as that the number of commissioners to enforce this law should be 
 enlarged; that they should "hear and determine" such cases 
 "in a summary manner"; that their fee should be ten dollars if 
 they decided for the slavery of the fugitive and only five dollars 
 if they decided in favor of freedom; that they had a right to sum- 
 mon a posse comitatus of all citizens to aid, which all "good citi- 
 zens" are commanded to obey; that any marshal who shall re- 
 fuse to act shall be subject to a fine of one thousand dollars to the 
 use of the claimant of the supposed slave; that "should such 
 fugitive escape, with or without the assent of such marshal or 
 his deputy, such marshal shall be liable on his official bond . . . 
 for the benefit of such claimant for the full value of the service 
 or labor of said fugitive"; that any attempt at rescue should be 
 
 I Fugitive Slave Law, approved by President Fillmore September 
 18, 1850. 
 
THE GREAT GRAVITATION MEETING 165 
 
 punished by a fine not exceeding one thousand dollars and im- 
 prisonment not exceeding six months ; that after the fugitive was 
 decreed to the claimant, he could "use such reasonable force and 
 restraint as may be necessary"; and that after such a decree the 
 United States ofl5cers, in case a rescue is feared, should remove 
 the fugitive at the expense of the government to the state whence 
 the fugitive had fled. 
 
 These and other unusual provisions for regaining property 
 would have been comparatively harmless in and of themselves, 
 were it not for the fact that the whole proceeding was based on a 
 mere affidavit of a claimant or his agent or attorney, made before 
 any officer authorized to administer oaths in the state or terri- 
 tory from which the fugitive was claimed to have escaped. This 
 officer was not obliged to go back of the affidavit and find for 
 himself the truth of the statements. In a small country town, 
 he might be aware of the facts, did he and the claimant and the 
 fugitive slave all live there ; but if at a distance from the home of 
 the claimant or if in a busy city, with a large slave mart, the 
 ofiicer's whole knowledge would be based on this affidavit. The 
 fugitive would, of course, not be present, or have any one to 
 represent him, and he would not even be notified of the pro- 
 ceedings. 
 
 But the worst is yet to come. The officer makes up a record, 
 based on this ex parte affidavit, and by Section 10, this record, 
 in every state of the Union, is made "full and conclusive evi- 
 dence of the fact of escape, and that service or labor of the per- 
 son escaping is due to the party in such record mentioned." Not 
 only was there no trial by jury, but there was no trial at all. The 
 commissioner was bound by this record, even if he should have 
 reasonable doubts as to the truth of the facts contained in it; 
 and lastly, "in no trial ^or hearing under this act shall the testi- 
 mony of such alleged fugitive be admitted in evidence." Dear 
 Reader, please note the word "alleged." It does not mean that 
 after the fugitive is adjudged to the claimant he cannot testify. 
 It is only necessary to "allege" that a man is a fugitive, and in 
 no proceeding can he testify as to whether he is or ever was a 
 slave, or a fugitive, or as to his identity. As Mr. Rhodes points 
 
166 RICHARD HENRY DANA, JR. 
 
 out in his history,^ "The mere statement of the provisions of this 
 law is its condemnation"; and he shows how far more just was 
 the slave law of ancient Rome, which presumed a man to be free 
 until he was proved a slave. A colored man, by name Adam 
 Gibson, was, by this " summary process," actually condemned 
 to slavery and delivered to a slave owner, a Mr. William Knight, 
 under mistake. He would never have seen liberty again had 
 it not happened that Mr. Knight was an honorable man, who 
 acknowledged the mistake and set Gibson free. 
 
 To feel the horrors of this law, let us suppose a beautiful 
 woman of white race, but of dark complexion, who is, by force of 
 circumstances, let us say, travelling where she is not well known, 
 perhaps in the southern part of the state of Ohio. Some rascal, 
 calling himself a claimant or the agent or attorney of a claim- 
 ant, could swear out an affidavit across the river in Kentucky 
 before any officer allowed to administer oaths, and get a 
 record describing her. Armed with this, he could either take her 
 himself, or employ United States marshals, who dare not refuse 
 under heavy penalties, to take her before a United States com- 
 missioner, who, in his turn, would be precluded by the record, 
 and she, the "alleged" fugitive, could not say a word on her own 
 behalf. Her captor, when she was decreed to him, could take 
 her by "such force and restraint as may be necessary," and all 
 would be done in "a summary manner." 
 
 In Mr. Dana's journal, ^ he tells how he had to advise a free 
 colored man, legally free, but who had once been a slave, and 
 who had heard his former master was inquiring as to his where- 
 abouts, that though a free man he had no chance, that there was 
 no way for him, if his old master had a record obtained some- 
 where in the South, to prove his freedom, nor could any one 
 else prove it for him. No wonder that Mr. Dana, who rarely 
 used strong language, said, "People will never see the damnable 
 character of the tenth section of that act until a few atrocious 
 cases shall have arisen." 
 
 This gravitation parody was an attempt to make people see 
 
 ^ Rhodes's History of the United States, vol. i, p. 186. 
 2 Biography of R. H. Dana, Jr., vol. i, pp. 287-288. 
 
THE GREAT GRAVITATION MEETING 167 
 
 it. There had been an answer made to the injustice of the "sum- 
 mary" proceedings of the Fugitive Slave Law. The answer 
 was that the fugitive slave, when carried back to the slave state, 
 might there have a trial by jury as to his status; but what would 
 that trial be worth where, by the law of every slave state, he was 
 unable to testify in court, if he had even a trace of negro blood 
 in his veins, even supposing that he was in reality free, to say 
 nothing of his disabilities as a supposed slave?] 
 
 Great Gravitation Meeting 
 
 AT 
 
 FANEUIL HALL! ! 
 
 WEBSTER I CHOATEJ CASS! AND HAIXETTt 
 
 GREAT ENTHUSIASM! 
 
 [Specially Reported for the Tribune.] 
 [Not by Telegraph.] 
 
 Boston, Thursday, Nov. 21. 
 
 The long-expected meeting to defend and preserve 
 tlie Law of Gravitation came off last evening, and 
 more than fulfilled the expectations of its friends. 
 The hall was crowded with the anxious but resolute 
 friends of the threatened and periled law, and the 
 utmost unanimity and enthusiasm prevailed. 
 
 The Hon. Upland Staple was called to the Chair, 
 and twelve vice-presidents were chosen, among whom, 
 were many of our most prominent merchants and 
 lawyers. The names of Spinning Jenny, Esq., S. 
 Island Cotton, Esq., Hon. Rice Fields, Hon. Increase 
 Profit, and Retained Power, Esq., are a sufiicient in- 
 dication of the character and standing of the officers 
 of the meeting. 
 
 The Hon. U. Staple, on taking the chair, expressed 
 his gratification at being selected to take so promi- 
 nent a part in a meeting in this consecrated spot, 
 
168 RICHARD HENRY DANA, JR. 
 
 called to preserve from threatened destruction a great 
 and vital law of the universe, a law which the recent 
 act of Congress was intended to preserve. This act, 
 so just and necessary, he said, had been the cause of 
 a fanatical violence, dangerous to the best interests 
 of trade, manufactures, industry, and public order — 
 an opposition which it was the intention of this meet- 
 ing to put down, effectually and forever! (Great ap- 
 plause.) For this purpose, no means had been left 
 untried. The names of those merchants, lawyers, and 
 physicians who had signed the call would be pub- 
 lished, and he assured the meeting that the names 
 of those who had declined to sign it would be pub- 
 lished also! (Cheers and cries of '^that's right! that's 
 the talk!") Without further comment, he would in- 
 troduce to the meeting the Great Expounder of the 
 Law of Gravitation. 
 
 Hon. Daniel Webster then came forward, and was 
 received with deafening shouts and cheers. As soon 
 as silence could be obtained, he spoke as follows: — 
 
 I am for Gravitation! (Applause.) I have always 
 been for Gravitation! (Renewed applause.) I always 
 shall be for Gravitation ! Under the law of Gravita- 
 tion was I born, under the law of Gravitation have I 
 lived, and by Divine permission, and the leave of cer- 
 tain of our fanatical friends, I expect to die and be 
 buried under the law of Gravitation! (Tremendous 
 sensation.) 
 
 No small portion of my life has been devoted — 
 humbly and inconspicuously I admit — to the ex- 
 pounding of this law. (Here the speaker was inter- 
 rupted by nine cheers for the Great Expounder.) 
 Without Gravitation, what would be our condition? 
 What would move the loom or the plough.? Where 
 
THE GREAT GRAVITATION MEETING 169 
 
 would be your commerce, your railroads, your fac- 
 tories, your water-powers, your steam-powers — 
 those great and invaluable privileges for which our 
 ancestors fought and died? Not only would these be 
 lost, but life itself, if held at all, would, in my judg- 
 ment, not be worth the holding. (Sensation.) 
 
 Now, gentlemen, I hold it to be one of the implied 
 powers of Congress to pass laws for the preservation 
 of gravitation. Fanatics may rave and strict con- 
 structionists may quibble, but no man whose opin- 
 ion is worth considering doubts the existence of this 
 right. Then, gentlemen, if the end is allowable, the 
 means to the end are allowable. This, I think, is not 
 new or doubtful logic. (Laughter.) Congress has 
 just passed a law making use of certain of these means 
 to this end. This is the whole of it! And yet certain 
 socialists and fanatics, and school-boys and school- 
 girls (laughter) would persuade us that here is some- 
 thing unconstitutional! Have we five senses, Mr. 
 President, or what has happened to us.^^ 
 
 Well, fellow citizens, what is this act, — this lawful 
 means to a lawful and transcendently important end? 
 It is just this. It provides that whenever, in the opin- 
 ion of any person living south of the equator, the 
 gravitation or equilibrium of the earth shall be in dan- 
 ger, he may come to any of our states and take from 
 them any person or persons, who or whose ancestors 
 were born or have lived in the Southern hemisphere, 
 and carry them to the place which they or their an- 
 cestors left, at the expense of our government. Can 
 any act of legislation be more simple, more just, or 
 more clearly constitutional? If they can, my short 
 experience and limited capacity do not permit me to 
 see it. I congratulate those who can. (Laughter.) 
 
170 RICHARD HENRY DANA, JR. 
 
 I grant that no such law exists in the eastern hem- 
 isphere. They do not think such a law necessary. 
 I differ from the eastern hemisphere. — (Tremen- 
 dous applause.) I think such a law necessary. In 
 minor matters, I would not reenact the laws of God. 
 I would trust to the laws of climate, scenery, and 
 physical geography. But in a matter of such infinite 
 moment, I would resort to human aids, and endeavor 
 to cooperate with the laws of the moral and physical 
 universe. 
 
 In classical times, Mr. President, there was a set 
 of men known as the capsizores mundarum. Their 
 object was to overturn the universe and reconstruct 
 it according to their own theories. This class is not 
 extinct in our own day. The opponents of this act 
 of Congress are capsizores mundarum. They seek to 
 disturb the order of the universe, to bring industry 
 to a dead stand, to throw the earth out of its orbit, 
 and send it into the blackness of darkness forever! 
 (Great sensation.) Let all discussion of this act be 
 discouraged, and put down, as we value our lives and 
 the lives of our children to the latest posterity. Let 
 all seditious attempts, under the pretense of testing 
 its validity in the courts, be put down, peaceably if 
 we may, but, if we must, — then — otherwise! (Tre- 
 mendous applause.) 
 
 It is said, I am told, that the act takes away the 
 trial by jury. I apprehend that it does no such thing. 
 (Hear, hear.) The chief facts to be tried are, whether 
 the person seized is or is not a native of the Southern 
 hemisphere, whether the person who seizes him is 
 himself from the Southern hemisphere, and whether 
 Gravitation is in fact in danger. Now there is not a 
 word in the act to prohibit the trial of these questions 
 
THE GREAT GRAVITATION MEETING 171 
 
 by a jury. (Hear, hear.) It is true, the trial is not 
 to be had here. But it may be had elsewhere. And 
 what objection is there to the party having his trial 
 in the place from which he came, his birthplace, his 
 original home, and the home of both the parties to 
 thesuit.'^ I can see none. There are objections founded 
 on facts, and objections founded on pretense. I take 
 this to be one of the latter. (Applause.) 
 
 But, fellow citizens, it is high time that I gave way 
 for those whose greater powers will enable them to 
 throw more light on this subject. (Go on! go on! — 
 Cheers.) No, gentlemen, my task is done. I end as I 
 began. This act of Congress is the law of the land. 
 In my judgment, every good citizen will acquiesce 
 in it. Those who seek to disturb or repeal it, desire to 
 throw the earth out of its orbit and unmake the uni- 
 verse. (Tremendous sensation.) I am for Gravitation, 
 at all times, under all circumstances, without respect to 
 latitude or longitude, without compromise ! (Cheers.) 
 It must be preserved by individual efforts, by each 
 man as a unit. I am a unit! A Massachusetts unit. 
 A Faneuil Hall unit. A Marshfield unit. (Cheers.) 
 As for me, my part is taken. Standing here in Faneuil 
 Hall, with Bunker Hill before me, with Lexington and 
 Concord on my left hand, and the Rock of Plymouth 
 on my right, I give my heart and hand for this law. 
 (Tremendous and long-continued applause.) 
 
 The Hon. Rufus Choate sprang to the platform, 
 and was greeted as his unbounded popularity de- 
 serves. It is impossible to give more than a faint 
 sketch of the brilliancy of his speech. It is reported 
 for us as follows : — 
 
 What, fellow citizens.^ What is it that has filled old 
 Faneuil to the brim to-night — drawn together the 
 
172 RICHARD HENRY DANA, JR. 
 
 thousands of Boston into this concentration of anx- 
 ious energy? What is it that gives this one pulsation 
 to this moving mass? What has called you, Mr. Presi- 
 dent — what has called us all from our firesides, and 
 left a thousand lonely and saddened hearths in our 
 home-loving, curfew-keeping city? (Cheer.) 
 
 Nothing, nothing but to give our aid and counte- 
 nance to that great, vital principle, now in its first 
 peril, since the morning stars sang together — the 
 law of Gravitation! The sight of these thousands 
 wending their way, with the faith and devotion of 
 second infancy, to the cradle of their Liberties 
 (Cheers), and to aid in upholding the law of the 
 Universe, is a spectacle more noble than fleets of 
 mightiest admirals seen beneath the lifted cloud of 
 battle — more sublime than serried ranks of soldiers 
 moving, by tens of thousands, to the music of an un- 
 just glory ! (Cheers.) 
 
 The Law of Gravitation ! What madness — what 
 worse than Worcester or McLean asylum madness — 
 to dream of its suspension, to entertain the flitting 
 shadow of thought of its repeal? Why, let but the 
 last, lingering, lifeless leaf of a decayed December 
 foliage fall from its parent trunk against the law of 
 Gravitation, and there were a discord through the 
 universe not to be healed until the sea shall give up 
 its dead ! (Tremendous applause.) In the new Heaven 
 and new earth of the Apocalyptic vision, there may 
 be a new law of Gravitation, or no Gravitation at all; 
 but I respectfully suggest a doubt, a query, whether 
 we had best begin the experiment in the Eighth Dis- 
 trict quite yet. (Laughter and cheering.) 
 
 Congress has passed a law for the sustaining of this 
 principle which has worked pretty well probably for 
 
THE GREAT GRAVITATION MEETING 173 
 
 some myriads of centuries; and our friends are in 
 ecstasies of indignation. All their hopes of confusion, 
 their brightest visions of disorder are dispelled in a 
 moment. What else can Congress do.^^ Congress can- 
 not move the mountains, or take the seas in its hand. 
 It cannot change Mt. Washington for Teneriffe, or 
 the Mississippi for the Ayacucho. Man, man is the 
 great locomotive ! If the mountain cannot go to Ma- 
 homet, the prophet must go to the mountain. Man is 
 the shifting ballast in the voyage of our planet through 
 infinite space. (Cheers.) If, then, man must be made 
 to preserve the equilibrium of the globe, and the 
 Southern hemisphere has notoriously less land than 
 the Northern, what more just, more humane than 
 to send back, at our own expense, the exiles of the 
 Sunny South.? Instead of shouldering our muskets 
 and crying our eyes out over this law, we should shed 
 tears of gratitude at the humanity and equity of its 
 beneficent provisions. Even if, by mistake, a North- 
 ern man should be taken, do not half the active young 
 men of New England make themselves new homes 
 the world over.? Shall we pity the victim of this law 
 as he floats over the broad Atlantic, with the stars 
 and stripes above him, as he is breathed along to his 
 new home by the gentle trade-winds of the tropics, — 
 as the evening breezes from broad Brazil steal over 
 the moonlit sea to print the first kiss of welcome on 
 his heated forehead! Is he sent to poverty when he 
 gathers diamonds like dewdrops in the genial Bra- 
 zilian sands.? Is he sent to a prison when he throws 
 the lasso and bounds over the broad savannahs of 
 the Amazon and Orinoke? Is it a dungeon he is sunk 
 into while he mounts the Andes, and soars above the 
 clouds, the playmate of the vulture and the condor? 
 
174 RICHARD HENRY DANA, JR. 
 
 Is he driven to barbarism as he sips his coffee under 
 the piazza of the Castilian? Is he an outcast when the 
 dark eyes of sehoritas flash welcome from their half- 
 uplifted mantles? Away with this mock philanthropy, 
 which weeps over the woes of a reinstated exile, and 
 can find no wrongs in the world to redress but his ! 
 
 But, forsooth, his Southern home is to be closed 
 against him until a jury has said he shall go! Did he 
 wait for a jury when he came away? (Laughter.) By 
 and by it will be unconstitutional for a railroad car 
 or a ferry-boat to start without a jury. But Congress 
 would willingly gratify their idiosyncrasy, their in- 
 fatuation, for twelve men, if there were the least need 
 of it in the world. 
 
 It has been asked to-night, and no man can answer 
 it, why not try the question of nativity and removal 
 at the place where the party was born and from 
 which he came? And there he may have his trial, 
 and welcome. There the jury may be empaneled of 
 his own countrymen, sworn by the bell, book, and 
 candle of his own religion, and his is the verdict of a 
 South American instead of a North American panel. 
 But my word for it, not one in ten of them will ask 
 for their suit. If it takes twelve men to prevent their 
 going back, it will take a thousand to drive them 
 here again. (Applause and laughter.) 
 
 But why waste words on this weak and wicked 
 attempt to obstruct the preservation of the earth's 
 equilibrium, the gravitation of all matter; to bring 
 Chaos back again? Our principle is the principle 
 which holds the elements together, our strength is 
 the arm of the universal law ! 
 
 The distinguished orator sank to his seat amid 
 thunders of applause. 
 
, THE GREAT GRAVITATION MEETING 175 
 
 Mr. Webster then again came forward, and said 
 he would read a letter from an eminent patriot and 
 personal friend; a man whom Massachusetts had al- 
 ways delighted to honor, the Hon. Lewis Cass. (Three 
 cheers for Lewis Cass !) 
 
 Detroit, Tuesday, Nov. 12. 
 
 My dear Friend: — Circumstances prevent my attending 
 your great Gravitation Meeting in Boston. — Deeply as I re- 
 gret the causes which have made these meetings necessary, I 
 rejoice in the spirit of devotion to the laws of God and nature 
 which these causes have developed. When we reflect on the con- 
 sequences of a repeal or supervision of the law of Gravitation 
 (which a repeal or supervision of the late act of Congress of course 
 involves); when we consider the noise and confusion such an 
 event would doubtless create in the physical world, we hardly 
 know whether most to wonder at or abhor the practices of those 
 who put us in such peril. 
 
 If Gravitation is suspended, who can doubt that commerce 
 is suspended also ? How, then, can the exiles of Hungary flee 
 from the butcheries of Haynau to the only land in the world 
 where free principles are consistently carried out, to all classes, 
 with no other distinction than that of color? How can the Aus- 
 trian Ambassador be recalled, or a mission of encouragement 
 be dispatched to down-trodden Hungary? The fund for the 
 Michigan Canal and for our lighthouses will have been wasted. 
 If the results can be traced to our remissness, the cause of free 
 principles will be retarded in Europe. Nor are these the only 
 consequences, for there is great reason to apprehend a general 
 derangement of the physical laws of the earth, resulting in the 
 most serious consequences not only to our own country but to 
 the world, compared with which the banishment of the Court and 
 the family of Louis Philippe, and the defeat of the Democracy 
 in 1848, are matters of trifling moment. 
 
 Being called upon for an exposition of my Nicholson Letter 
 to the Nashville Convention, as to the meaning of which there 
 seems to be a strange misapprehension between the two parties 
 
176 RICHARD HENRY DANA, JR. 
 
 in that body, I am obliged to terminate my communication 
 earlier than I otherwise would have done. I beg you to present 
 my best wishes to the people of Massachusetts, whose best inter- 
 ests I have so long but so unworthily endeavored to subserve, 
 and believe me. 
 
 Yours truly, Lewis Cass. 
 
 To Hon. Daniel Webster. 
 
 This letter was received with warm demonstra- 
 tions of applause. 
 
 Hon. B. F. Hallett next addressed the meeting. 
 His remarks were quite extended. At the close of 
 his speech he paid a glowing tribute to the memory 
 of Sir Isaac Newton, who, he had been told, was a 
 distinguished advocate and expounder of Gravitation 
 in England, against the efforts of an insolent landed 
 aristocracy and overgrown monied corporations. He 
 concluded by moving that a subscription be raised, 
 upon the spot, to procure portraits of Sir Isaac New- 
 ton, Senator Foote of Mississippi, and the principal 
 orator of the evening, to be hung in Faneuil Hall, 
 surmounted by the American Eagle, and by a streamer 
 hanging from the Eagle's mouth, on which should be 
 printed, in golden letters, the words "Gravitation 
 and Equilibrium." 
 
 This proposal was received with applause, and we 
 rejoice to add that the requisite subscription was 
 made on the spot. 
 
 The following preamble and resolutions were then 
 adopted: — 
 
 Whereas, We regard the interests of the cotton manufactures, 
 the shoe and leather trade, the freighting trade to the South and 
 to Europe, the making of negro cloths, machinery and firearms, 
 as the paramount interests and highest questions for a great 
 
THE GREAT GRAVITATION MEETING 177 
 
 and free people to entertain, as the causes of the formation of 
 our Union and of the Revohition itself, and see that these must 
 be destroyed by any shock to the law of gravitation, or to any 
 law of Congress sustaining the law of gravitation; and 
 
 Whereas, The agricultural and farming classes, and all persons 
 living beyond the reach of tide-water, have always been the 
 opponents of gravitation from the first; and 
 
 Whereas, It rests with the merchants, traders, and manufac- 
 tures of the country, living within reach of tide-waters, to sus- 
 tain the law of gravitation ; — therefore 
 
 Resolved, That the late act of Congress shall be regarded as 
 a part of the law of nations, a compact among the families of 
 men, sacred, unalterable and irrepealable. 
 
 Resolved, That whoever opposes or seeks to repeal or mate- 
 rially alter that law, seeks to destroy the law of gravitation and 
 the equilibrium of the earth, is a foe to the order of the universe 
 and the happiness and prosperity of the human race. 
 
 Resolved, That disregarding all former party ties, we will vote 
 for no man, for any State or National office, who is known or 
 suspected to be opposed to the late act of Congress; but will 
 vote for those men only, of whatever party, who are pledged to 
 the policy of preserving it inviolate to us and our posterity. 
 
 The meeting adjourned to meet on 'Change at ten 
 o'clock, to-morrow. 
 
IX 
 
 ARGUMENT ON BEHALF OF CHARLES G. 
 DAVIS, ESQ., CHARGED WITH AIDING 
 AND ABETTING IN THE ESCAPE OF A 
 FUGITIVE SLAVE CALLED SHADRACH 
 
 [This argument is of especial historical interest, as it exhibits 
 the great power of patronage and official position, as well as social 
 prestige, used to deter the defense of fugitive slaves. Shadrach 
 was seized as a fugitive in Boston, February 15, 1851, taken to 
 court for a hearing, and escaped the same day. Mr. Davis, who 
 had been one of the counsel for Shadrach, was accused of aiding 
 in tliis escape. The case against Mr. Davis was tried before the 
 Hon. B. F. Hallett, United States Commissioner, on February 
 20 to 24. On February 26, 1851, Mr. Davis was discharged by 
 the Commissioner, who found no case proven against him.] 
 
 May it please your Honor : — 
 
 Certainly, Mr. Commissioner, we are assembled 
 here, this morning, under extraordinary circumstances. 
 I am not aware that since the foundations of our 
 institutions were laid, since we became an independ- 
 ent people, since the Commonwealth of Massachu- 
 setts had an independent existence, — I am not aware 
 that a case similar to this has once arisen. I do not 
 know that ever before in our history a judicial tribu- 
 nal has sat, even for a preliminary hearing, upon a 
 gentleman of education, a counselor of the law, sworn 
 doubly, as a Justice of the Peace and as a counselor 
 in all the courts, to sustain the Constitution of the 
 United States and the laws made in pursuance thereof. 
 
ARGUMENT FOR CHARLES G. DAVIS 179 
 
 — a gentleman of property, family, friends, reputation, 
 who has more at stake in the preservation of these 
 institutions than nine in ten of those who charge him 
 with this crime; — who stands charged with an of- 
 fense (in the construction now attempted to be put 
 upon the statute) of a treasonable character, a trea- 
 sonable misdemeanor, an attempt to rescue a person 
 from the law by force, an attempt to set up violence 
 against the law of the land. 
 
 Therefore it is that this trial attracts this unusual 
 interest. It is not that, so far as this defendant is 
 concerned, the question whether he be bound over 
 here, or whether the District Attorney takes his case 
 directly to the Grand Jury, can make the slightest 
 difference in the world; but because the decision of 
 this tribunal, though only preliminary, will have 
 great effect upon the community, and will be carried 
 throughout the United States. It is because of the 
 political weight attached to it, that such anxiety is 
 felt for the result. For the simple rescue of a prisoner 
 out of the hands of an officer is a thing that occurs 
 in our streets not very unfrequently, and often in 
 other cities. It might have occurred upstairs, and 
 not have attracted a moment's attention. 
 
 Who, Mr. Commissioner, is the defendant at the 
 bar.f* I have said that he is a Justice of the Peace, 
 sworn to sustain the laws, a counselor of this court 
 and of all the courts of the United States in this State, 
 sworn doubly to sustain the laws. He is a gentleman 
 of property and education, whose professional repu- 
 tation and emolument depend upon sustaining law 
 against force; a man whose ancestors, of the ancient 
 Pilgrim stock of Plymouth, are among those who laid 
 the foundations of the institutions that we enjoy. He 
 
180 RICHARD HENRY DANA, JR. 
 
 has at this moment so much interest in the way of 
 personal pride, historical recollections, property, in 
 family, reputation, honor, and emolument in these 
 courts — so much at stake as to render it impossible 
 to believe, except on the strongest confirmation, that 
 he should be guilty of the offense charged against 
 him at this moment. 
 
 The charge against the defendant involves the 
 meanness of instigating others to an act he dares not 
 commit himself, of putting forward obscure and op- 
 pressed men, to dare the dangers and bear the pen- 
 alties from which he screens himself; meantime hold- 
 ing up his hand and swearing to obey the laws of his 
 country which he is urging others forward to violate. 
 
 Since, then, my friend has done me the honor to 
 ask me to appear for him before this tribunal, from 
 among others so much better qualified, I feel that I 
 am placed in circumstances calling for some allowance, 
 some liberty for feeling and expression. We think 
 ourselves happy that in this state trial, this political 
 state trial, we appear before one who has been known 
 through his whole life as not only the advocate of the 
 largest liberty, but the asserter and maintainer of 
 the largest liberty of speech and action, at the bar, 
 in the press, and in the forum, carrying those ideas 
 to an extent to which, I confess, with my comparative 
 conservatism, I have not always seen my way clear to 
 follow. Therefore, I shall look for as large a liberty 
 as the case will allow me, in addressing myself to this 
 court; in bringing forward all considerations, in sug- 
 gesting all possible motives, in commenting upon all 
 the circumstances that lie about this cause. At the 
 same time I shall expect from the person who sits 
 clothed with the authority of an executive whose will 
 
ARGUMENT FOR CHARLES G. DAVIS 181 
 
 is as powerful as that of any sovereign in Christendom, 
 except the Czar of the Russias — I shall expect from 
 him no unnecessary interruptions, no extraordinary 
 appeals, no traveling out of the usual course of a 
 simple judicial proceeding. 
 
 Why is it that the defendant stands here at this 
 bar a prisoner? How is this extraordinary spectacle 
 to be accounted for? I beg leave to submit that the 
 whole history is simply this. There has been a law 
 passed in the year 1850, by the Congress of the United 
 States, which subjects certain persons, if they be fugi- 
 tive slaves, or whether they be or not, subjects them 
 to be arrested and brought into court, to have the 
 question of their liberty and that of their seed forever, 
 tried by a so-called judicial tribunal. Those persons 
 are mostly poor. They belong to an oppressed class. 
 They are the poor plebeians, while we are the patri- 
 cians of our community. They are of all the people 
 in the world those who most need the protection of 
 courts of justice. I think the court will agree with me 
 that if there is a single duty within the range of the 
 duties of a counselor of this court which it is honor- 
 able for him to perform, and in the performance of 
 which he ought to have the encouragement of the 
 court, it is when he comes forward voluntarily to 
 offer his services for a man arrested as a fugitive slave. 
 Therefore it is that I think it somewhat unfortunate 
 the District Attorney should have thought it neces- 
 sary to arrest counsel. If there be a person against 
 whom no intimidation should be used, it is the coun- 
 sel for a poor, unprotected fugitive from captivity. — 
 The question is, whether a man and his posterity for- 
 ever, the fruit of his body, shall be slave or free. It 
 is to be decided on legal principles. If there is a case 
 
182 RICHARD HENRY DANA, JR. 
 
 in the world that calls for legal knowledge and abil- 
 ity, — that calls for counselors to come in and labor 
 without money or price, — it is a case like this. I 
 think it a monstrous thing, unless it be a case beyond 
 doubt, that counsel should have been selected to be 
 proceeded against in this manner. 
 
 I take the facts to be these: Mr. Davis, being a 
 counselor of this court, and possessed of no small sym- 
 pathy for persons in peril of their freedom, when it 
 was known that a person claimed as a fugitive slave was 
 arrested, and in a few hours, perhaps, to be sent into 
 eternal servitude, Mr. Davis steps over to my office 
 and suggests to me that we offer our services as coun- 
 sel. He leaves his business, which is large, while five 
 courts are in session in this building. He sits here that 
 whole Saturday forenoon by the prisoner, to whom he 
 is recommended by Mr. Morton. He is twice spoken of 
 to Mr. Riley by the prisoner, as one of his counsel. 
 He sits from eleven to two o'clock, absorbed in this 
 case, his feelings necessarily excited (and I should be 
 ashamed of him if they were not excited), but his in- 
 tellectual powers devoted to the points of law in this 
 case, and your Honor knows that the points are va- 
 rious and new. 
 
 By the courtesy of the marshal, the counsel were 
 permitted to remain here, because the marshal had 
 not yet determined where to keep his prisoner. They 
 remained until the time for the prisoner's meal. When 
 the business is over, they leave. Some one must go 
 out first, and somebody must go out last. It is no- 
 thing more nor less than the old rule of "The Devil 
 take the hindermost." Mr. List leaves the court-room 
 — Mr. Warren goes out. All the officers are to go 
 to dinner, and the door is to be opened and closed 
 
ARGUMENT FOR CHARLES G. DAVIS 183 
 
 each time. Dinner is to be brought in. Twenty times 
 that door is to be opened. 
 
 In the mean time about that door is collected a 
 small number of persons of the same color with the 
 person then at the bar, very likely, perhaps, to make 
 a rescue, some advising against it, and some for it, 
 with considerable excitement. Mr. Davis slides out 
 of that passageway and goes to his office. Mr. Wright 
 is prevented from going by the crowd. Not a blow is 
 struck. Not the hair of a man's head is injured. The 
 prisoner walks off with his friends, straight out of 
 this Court House, and no more than twenty or thirty 
 persons have done the deed. Three men outside of the 
 door could have prevented the rescue. Mr. Riley did 
 not suspect it. Mr. Warren did not suspect it. Mr. 
 Homer did not suspect it. Mr. Wright did not sus- 
 pect it. Nobody suspected it. The sudden action of 
 a small body of men, unexpected, and only successful 
 because unexpected, accomplished it. He is out of 
 the reach of the officers in a moment, and there 's the 
 end of the whole business. No premeditation! No 
 plan! Counsel knowing nothing about it! Nobody 
 suspecting it, and the whole thing over in one minute! 
 
 But, may it please the Commissioner, the law is 
 violated — the outrage is done. This is a case of great 
 political importance, and the deputy marshal thinks 
 it his duty (I think in rather an extraordinary man- 
 ner), instantly, before any charge is made against him, 
 before any official inquiry is started, to issue a long 
 affidavit, sent post-haste to every newspaper, and 
 hurried on to Washington, — Congress in session, — 
 a delicate question there, — Northern and Southern 
 men arrayed against each other. Then comes an 
 alarm. Then the Executive shrieks out a proclamation. 
 
184 RICHARD HENRY DANA, JR. 
 
 A standing army is to be ordered to Boston. All 
 good citizens are to be commanded to sustain the laws. 
 The country thinks that mob law is rioting in Boston 
 — that we all go armed to the teeth. The chief magis- 
 trate of fifteen millions of people must launch against 
 us the thunders from his mighty hand. 
 
 In the mean time, we poor, innocent citizens are 
 just as quiet, just as peaceable, just as confident in 
 our own laws, just as capable of taking care of our- 
 selves on Saturday evening as on Friday morning. 
 Only some frightened innocents, like the goose, the 
 duck and the turkey in the fable, say the sky is fall- 
 ing, and they must go and tell the king! 
 
 But we can all see now that there was too much 
 alarm. We begin already to feel the reaction. A state 
 of things has been created over this country entirely 
 unwarranted by the circumstances. And I trust that 
 the Commissioner will be able to say to the country, 
 say to His Excellency the President of the United 
 States, say to the world, that nothing of this sort has 
 occurred; that there has been no preconcerted ac- 
 tion; that the marshal cleared his room, and every- 
 body went out peaceably; that nobody expected the 
 rescue; that there was no crowd in the court-room; 
 but the blacks, feeling themselves oppressed and 
 periled by this law, standing at that door, behind 
 which their friend and companion is held a prisoner, 
 rush in, almost without resistance, carry off their 
 prisoner, and not a blow is struck, not a weapon drawn, 
 not a man injured. That is the end of it. There is no 
 need of standing armies in Boston! And, above all, 
 we trust that the Commissioner will be able to say 
 to the world, to the President, and to Congress, that 
 this effort was the unpremeditated, irresistible im- 
 
ARGUMENT FOR CHARLES G. DAVIS 185 
 
 pulse of a small body of men, acting under the sense 
 and sight of oppression and impending horrid calam- 
 ities, against the advice of some of their own number; 
 and that no gentleman of education, no counselor 
 of this court sworn to obey the law, has instigated 
 these poor men to its overthrow. Massachusetts is 
 not in a state of civil war, and her most valued citi- 
 zens are not engaged in overturning the foundations 
 of civil government. 
 
 Why should the criminal proceedings of this day 
 have taken place at all.^ What is the evidence? The 
 learned district attorney thought proper to suggest 
 to the Court that there was further evidence which 
 might be presented in another stage of this proceed- 
 ing. That, I am sure, fell with as little weight upon 
 the mind of the Commissioner as it would if we, on 
 the other hand, had said, as is the fact, that we have 
 a large amount of evidence that might yet be pre- 
 sented in behalf of Mr. Davis. This is not a game of 
 brag! It is not upon evidence that is not here, but 
 upon evidence that is here, that this case is to be de- 
 cided. Here has been mortified pride, here has been 
 fear, here has been the dread spectre of executive 
 power, stalking across the scene, appalling the hearts 
 and disabling the judgments of men. Excited men 
 suspect everybody. Every person who ever attended 
 a public meeting is suspected. A political party is to 
 be put under the ban. There is nothing so rash as 
 fear. There is nothing so indiscriminating as fear. 
 There is nothing so cruel as fear, unless it be mortified 
 pride — and here they both concurred. 
 
 Instructions come from a distant executive power 
 that knows nothing of the facts. And the fear of that 
 power and patronage is the reason, may it please the 
 
186 RICHARD HENRY DANA, JR. 
 
 Commissioner, why suddenly, on Saturday or Sunday, 
 before the subject can be examined and the truth 
 ascertained, a warrant is got out against a person of 
 the character and position of Mr. Davis. But when 
 we look at things in their natural light, when there is 
 a calm investigation of the facts, I think the govern- 
 ment will see and regret its rashness and delusion. 
 
 I understand, may it please the Commissioner, that 
 there is to be a great deal done on this case, of an 
 unusual character. We have been threatened with 
 the reading of newspapers; and public meetings, and 
 political principles are to be charged as treasonable. 
 Yes ! political considerations are brought to bear. We 
 cannot tell what limit is to be put to this. And so, not 
 knowing what is before me, with no ordinary rules of 
 procedure to guide me, the Commissioner will allow me 
 to try to anticipate the attacks as well as I can. For 
 having had it intimated that the argument will not fol- 
 low legal evidence, but extracts from newspapers — 
 
 Mr. Lunt. That is very strong. I have offered 
 you everything of that kind that I have to say. 
 
 The Commissioner. The gentleman proposes to 
 read, as part of his argument, an article from the news- 
 papers. 
 
 Mr. Dana. He proposes to read it as evidence, to 
 affect the mind of the court on the facts. I cannot 
 object to it now. When it is offered, I have no doubt 
 it will be properly met by the Commissioner. 
 
 I say, not knowing what is to come upon me, I must 
 take a pretty wide margin. In that view of the case, 
 it will not be improper if I state what I understand to 
 be the true position of Mr. Davis, with reference to 
 the principles involved in this case. 
 
ARGUMENT FOR CHARLES G. DAVIS 187 
 
 May it please your Honor, we are not subjects of a 
 monarchy, which has put laws upon us that we have 
 no hand in making. I do not hesitate to say, here, 
 that if the act of 1850 had been imposed upon us, a 
 subject people, by a monarchy, we should have re- 
 belled as one man. I do not hesitate to say that if 
 this law had been imposed upon us as a province, by 
 a mother country, without our participation in the 
 act, we should have rebelled as one man. 
 
 But we are a republic. We make our own laws. We 
 choose our own lawgivers. We obey the laws we make 
 and we make the laws we obey. This law was consti- 
 tutionally passed, though not constitutional, we think, 
 in its provisions. It is the law until repealed or ju- 
 dicially abrogated. 
 
 Who passed this law.? It was passed by the vote of 
 the representative of our own city, whom we sent 
 there by our own votes. It was advocated by our own 
 senator. It was passed by the aid of Northern votes. 
 Where is the remedy .^^ It strikes me that the state- 
 ment of the case shows where the remedy is. It is in 
 the hands of the people. It is not in standing behind 
 and urging on poor men to put themselves in the can- 
 non's mouth. It is political courage that is wanted. 
 Courage shown in speech, through the pen, and 
 through the ballot-box. 
 
 But be it known that all I have said is on the idea 
 that this is a repealable law. If we are to be told that 
 this is a part of the organic law, sunk down deep into 
 national compact, and never to be repealed, — then 
 neither you nor I can answer for the consequences. 
 But now we can say that it is nothing but an act, that 
 may be repealed to-morrow. Take from us that great 
 argument, and what can the defendant and myself 
 
188 RICHARD HENRY DANA, JR. 
 
 do? What can the defendant say to discourage col- 
 ored men from the use of force? You take from him 
 his great means of influence. I never have been one 
 of those, and I think the defendant has never been 
 one of those, who would throw out all their strength 
 in denunciations against Southern men born to their 
 institution of slavery, and pass over those Northern 
 men who volunteer to bring this state of things upon 
 us. 
 
 But as a citizen, within constitutional limits, ad- 
 dressing his fellow citizens at Faneuil Hall (where I 
 think we have still a right to go), discouraging his 
 fellow citizens from violence, writing in the newspa- 
 pers and arguing in the courts of law to the same pur- 
 pose, saying to the poor trembling negro, "I will give 
 you a habeas corpus! I will give you a writ of per- 
 sonal replevin! I will aid in your defense! There is 
 no need of violence!" That is the position of the de- 
 fendant. If he held any other position, if the defend- 
 ant had made up his mind that here was a case for 
 revolution, that here was a case for civil war and 
 bloodshed — if I know anything of the spirit of the 
 defendant, he would have exhibited himself in a far 
 different manner. He would have resigned his posi- 
 tion as a counselor of this court, with all its profits 
 and honors; he would put himself at the head, instead 
 of urging on from behind a class of ignorant, excited 
 men, against the execution of the laws. 
 
 For he knows perfectly well — an educated man 
 as he is, who has studied his logic and metaphysics, 
 and who is not unfamiliar with the principles of the 
 social system — that an intentional, forcible resistance 
 to law is, in its nature, revolution. And I take it, no 
 citizen has the right forcibly to violate the law, unless 
 
ARGUMENT FOR CHARLES G. DAVIS 189 
 
 he is prepared for revolution. I know that these nice 
 metaphysic rays, as Burke says, piercing into the dense 
 medium of common life, are refracted and distorted 
 from their course. But an educated man, with a dis- 
 ciplined mind, knows that he has no right to encour- 
 age others to forcible resistance, unless he is ready to 
 take the risks of bringing upon the community all the 
 consequences of civil war. We talk about a higher law 
 on the subject of resistance to the law. And there is 
 a higher law. But what is it.f^ It is the right to pas- 
 sive submission to penalties, or, it is the active ulti- 
 mate right of revolution. It is the right our fathers 
 took to themselves, as an ultimate remedy for un- 
 supportable evils. It means war and bloodshed. It 
 is a case altogether out of law. I do not know a man 
 educated to the law that takes any other ground. 
 
 I suppose your Honor did not misapprehend my 
 last remark and that no one did. When I said re- 
 sistance to the law, I did not mean to include resist- 
 ance for the purpose of raising a constitutional issue. 
 If an unconstitutional tax is levied, you refuse to pay 
 it and raise the constitutional question. This right 
 seems to be lost sight of. Persons seem to think we 
 are to obey statutes and not the Constitution. I un- 
 derstand that the duty to the Constitution is above 
 the duty to the statutes. And therefore I say, by re- 
 sistance to the law, I mean combined, systematic, 
 forcible resistance to the law for the purpose of over- 
 coming all law, or a particular law in all cases; defying 
 the government to arms, and not for the purpose of 
 raising a constitutional issue. For this is within the 
 power, nay, it is sometimes the duty of a citizen. I 
 do not know a position in which a person does a greater 
 good to his fellow citizens than when he does, as John 
 
190 RICHARD HENRY DANA, JR. 
 
 Hampden did on the question of ship-money, raise, 
 by refusal to obey, the constitutional issue. And in 
 doing this, he ought to have the approbation of the 
 courts and their ministers, and of every person true 
 to the Constitution and the laws. 
 
 At the same time that it is important to maintain 
 all these principles, which are the principles of the 
 defendant, I also think this is a season when we must 
 be very careful that certain opposite doctrines are 
 not carried too far. I think it is a time, this day, when 
 it becomes a judicial tribunal to see to it that this 
 extraordinary combination of executive power and 
 patronage, this alarm and this anxiety at headquar- 
 ters, does not lead to a violation of private rights and 
 personal liberty. I think there is a pressure brought 
 to bear against the free expression of popular opinion, 
 against the exercise of private judgment — a pressure 
 felt even in the courts of law, intimidating counsel, 
 overawing witnesses, and making the defense of lib- 
 erty a peril. There is the pressure of fear of political 
 disfranchisement, of social ostracism, which weighs 
 upon this community like a nightmare. We feel it 
 everywhere. We know that we make sacrifices when 
 we act in this cause. We feel that we suffer under 
 it. And if this course is persevered in, I believe that 
 if a man stands at that bar charged with being a fugi- 
 tive slave, he will find it difficult to obtain counsel in 
 this city of Boston, except from a small body of men 
 peculiarly situated. 
 
 I think that two years ago no man could have stood 
 before this bar, with perpetual servitude impending 
 over him, but almost the entire bar would have come 
 forward for his defense. No man would have dared to 
 decline. But because of this pressure of political and 
 
ARGUMENT FOR CHARLES G. DAVIS 191 
 
 mercantile interests, it is said that Henry Long found 
 it difficult to obtain counsel in New York. His friends 
 sent to Boston to obtain an eminent man here, will- 
 ing to brave public feeling by acting as a counselor 
 in a case of slavery. I do believe that this danger is 
 to be regarded. For there is, at times, as much ser- 
 vility in democracies as in monarchies. I was struck 
 with the remark made by the Earl of Carlisle, in his 
 late letter, that there is in the United States an ab- 
 solute submission to the supposed popular opinion 
 of the hour, greater than he ever knew in any other 
 country in the world. This is something in which no 
 American can take pride. 
 
 The history of democratic governments shows that 
 they may be as arbitrary as any absolute monarchy. 
 Athens and Paris have, under democratic forms, been 
 the standing illustrations of tyranny and arbitrary 
 rule the world over. Those are free governments in 
 which there is a government of just laws, whether 
 wrought out through a mixed government, as in Eng- 
 land, or wrought out as here by the people themselves, 
 and cast into representative forms. And now we see 
 before us the anomaly, the mortifying contradiction, 
 that it is in Great Britain, and not in the republic of 
 the United States, with our venerated Declaration of 
 Independence, that the great principles of Liberty 
 and Fraternity are practically carried out. I do not 
 mean to reflect upon any person or persons south or 
 north of a certain geographical line. Our ancestors 
 have eaten sour grapes, and their children's teeth are 
 set on edge. We are all under the same condemna- 
 tion. We are all responsible for these laws — for 
 slavery, in some form or other. Our constitutional 
 compact makes us responsible, and we cannot escape 
 from our share of the evil and the wrong. 
 
192 RICHARD HENRY DANA, JR. 
 
 But I must leave these generalities, and pass to the 
 particular points of this case. This is the first case 
 of its kind that has occurred. The decision in this 
 case by the Commissioner, though not matter of pre- 
 cedent, yet goes to the profession, the press, and into 
 the private records of the country. Therefore we may 
 be excused if we pay some considerable attention to 
 the points of law involved. 
 
 In the first place, it should be borne in mind that 
 a fugitive slave is not a criminal. 
 
 A few years ago, it was thought in Massachusetts 
 that the pursuing of slaves was criminal. I thank 
 God, it is not yet decided that the escaping from 
 slavery is criminal. It is a mere question of property 
 under this act. This law has recognized certain pro- 
 perty in slaves, claimed in a certain manner, in the free 
 States. It is a mere question of property. The South- 
 ern man has certain property in his slave. That pro- 
 perty we do not here recognize. But if the property 
 escapes, and he pursues it, it is to be recognized in 
 this court. Consequently, when a Southern man 
 comes here and seizes a person as his property, he 
 takes him at his own risk, a risk which every man 
 takes in seizing anything as his property. If he seizes 
 the wrong property, any person who owns it may resist 
 him, or resist his ofiicer armed with a warrant. This 
 has been ruled in various cases. 
 
 Your Honor recollects in the 8th Pickering, the 
 case of the Commonwealth vs. Kennard. There the 
 writ was placed in the hands of the officer, to go and 
 attach some property of the defendant. He attached 
 certain property which he thought belonged to the 
 defendant. He showed his warrant, but the true 
 owners put him, neck and heels, out of the house. 
 
ARGUMENT FOR CHARLES G. DAVIS 193 
 
 They were indicted, but the court sustained them 
 in their act. 
 
 In a civil action, if the wrong person, the wrong 
 horse, or the wrong slave is taken, then the owner 
 of the property may defend it, or the man seized may 
 defend himself if he chooses. There is a different 
 statute on the subject of interfering with the process 
 of the courts, with judicial processes, under which 
 this respondent is not held to answer. Whenever this 
 respondent is held to answer for resisting judicial 
 processes, then these other questions may be raised. 
 He is now only charged with rescuing property from 
 the owner, or the officer holding for the owner. 
 
 The Constitution says that any person charged with 
 crime, and escaping, shall be delivered up. But in 
 the case of the fugitive slave, it carefully alters the 
 phraseology. It does not say that any person charged 
 with being a fugitive slave shall be surrendered, but 
 any person who is a fugitive slave. In the one case, 
 the charge is the only material fact, and is proved by 
 record. In the other case, which is a question of pro- 
 perty, the fact of property is the foundation of the 
 proceeding. So, in this act of 1850, the sixth section 
 does not provide that any person who claims a fugi- 
 tive slave shall have the right to arrest him, but any 
 person who is the owner of a fugitive slave may ar- 
 rest him. So in the seventh section, the penalty is 
 not inflicted for rescuing a person who is claimed as a 
 fugitive slave, but for rescuing a person who is a fugi- 
 tive slave. These provisions are in analogy with the 
 law of property, and of the arrest of persons and pro- 
 perty, in all other cases. As bad as this statute is, it 
 is not quite so bad as its friends in this case would 
 make it. 
 
194 RICHARD HENRY DANA, JR. 
 
 The next consideration is, that it is not necessary 
 that the claim should be made by virtue of legal pro- 
 cess. The owner or his agent may arrest the fugitive 
 with or without process. The offense is equally com- 
 mitted, and the penalty is the same, whether the 
 rescue is made from the owner without process, or 
 from the officer having process. This fact, with the 
 fact that there is a general statute relating to the of- 
 fense of obstructing judicial processes, shows that 
 this statute assumes the facts of property and es- 
 cape to be true, and applies only to cases in which 
 they shall prove to be true. 
 
 If this is not so, what is the result? If a man claims 
 another, without process, by putting his hand on his 
 shoulder, though the man may be as free as you or I, 
 if he resists, or his friends aid him in resisting, the 
 offense is committed. A man claimed as a fugitive 
 slave has been rescued or aided in his escape. You can- 
 not refuse to deliver up a colored boy or girl born in 
 your house, of free parents, to any man who knocks 
 at your door and claims the child, with or without a 
 warrant, without incurring the penalties of this act. 
 This monstrous construction can never be admitted. 
 I beseech the Commissioner to reconsider his inti- 
 mated opinion on this point, and to hold the gov- 
 ernment to preliminary proof, in the outset, that 
 the person rescued was a slave by the law of Virginia, 
 was the slave of the man who claimed him, and was 
 a fugitive from that state of slavery. 
 
 What evidence has there been of any of these facts? 
 There has been no evidence offered that the prisoner 
 was a slave by the law of Virginia ! — There has been 
 no evidence offered that he was the slave of Mr. De- 
 bree! There has been no evidence offered that he was 
 
ARGUMENT FOR CHARLES G. DAVIS 195 
 
 a fugitive from a state of slavery ! Mr. Riley's return 
 upon the warrant, stating that he had arrested "the 
 within-named Shadrach," was admitted as evidence. 
 I solemnly protested against the reception of the re- 
 turn as evidence in a criminal proceeding between 
 other parties; but it was received, and for a while held 
 to be conclusive. But in answer to my question, Mr. 
 Riley replied that he did not know the man he ar- 
 rested to be the man named in the warrant. And how 
 could he know it.^^ This nullified the return, and the 
 government had no evidence. The district attorney 
 saw this, and rising in his seat, in a threatening tone, 
 said to Mr. Riley, "I warn you, sir, not to give that 
 testimony!" The testimony was true, and it was ad- 
 mitted by the court. Why was Mr. Riley warned? 
 He was warned for private reasons. It was an official 
 warning, by the agent of the executive to one of its 
 servants. 
 
 Mr. Lunt. I deny that it was a private warning. 
 It was public, and for proper reasons. 
 
 Mr. Dana. It was for private, or secret reasons, not 
 given, not apparent, — some political or governmental 
 terror, known only to the parties. There is no escape 
 from this. The bar saw it. The audience saw it. It is 
 graven with a pen of iron, and laid up in the rock 
 forever ! 
 
 All evidence of identity having failed, the govern- 
 ment is driven to its last shift. Colonel Thomas is 
 called in, and he testifies that the agent of Mr. Debree 
 said to him, in the court-room, when the prisoner 
 was brought in, "That is my boy!" This is hearsay 
 evidence upon hearsay evidence. It is monstrous ! Yet 
 
196 RICHARD HENRY DANA, JR. 
 
 on this slender thread of illegal testimony hung all 
 the evidence of the facts of identity, slavery, and es- 
 cape. If it is enough to prove that the man rescued 
 was the man in custody, and upon whom the court 
 was sitting in fact, no one denies it. But if it be neces- 
 sary to show that the man in custody was the man 
 named in the warrant, or that he was a slave, and a 
 fugitive slave, there has been no competent evidence 
 of any of those facts, and no evidence at all but of 
 one of them. 
 
 This man was not rescued from the court. The 
 court had adjourned. The marshal had chosen to 
 make the court-room a slave jail. The offense would 
 have been the same in the eye of the law, if he had 
 been rescued from the hands of the agent having no 
 warrant, in the streets, or in a railroad car. 
 
 I have nothing more to submit to the court on the 
 subject of the law applicable to this case. I will now 
 call your Honor's attention to the facts in proof. 
 
 To avoid repetition and confusion, I will call your 
 Honor's attention to single points. 
 
 1. Mr. Davis was counsel in the case, and acted as 
 such. Mr. Morton, who knew Shadrach, and to whom 
 Shadrach looked for advice, recommended Mr. Davis 
 to him as counsel. Mr. Riley testifies that Shadrach 
 twice pointed out Mr. Davis to him as one of his coun- 
 sel, when officially inquired of by Mr. Riley. Mr. 
 King and Mr. List, counselors of this court, testify 
 that Mr. Davis sat with, consulted with, and con- 
 versed with the counsel who addressed the court, 
 made a prolonged and careful examination of the pa- 
 pers, and was the first who raised the doubt of their 
 sufficiency. Mr. Sawin, an officer, says he acted as 
 counsel. It is proved that he went into the court- 
 
ARGUMENT FOR CHARLES G. DAVIS 197 
 
 room for the purpose of acting as counsel, and did 
 not leave the room or the bar at all (the government 
 will admit, not for more than a minute or two) until 
 the last moment. What other evidence can there be 
 of counsel's authority? It is seldom if ever in writing, 
 but is proved by acts and recognitions. After such 
 evidence of the acts and recognitions of a hasty and 
 troubled forenoon, including the testimony of two 
 of his own officers, I was amazed at the pertinacity of 
 the prosecuting officer in calling Mr. Curtis to prove 
 that Mr. Davis was not counsel. But Mr. Curtis ad- 
 mitted that he knew nothing of the relations between 
 Shadrach and Mr. Davis, that there are often coun- 
 sel who do not address the court, and that Mr. Davis 
 might have been of such counsel, for aught he knew. 
 And most of the work of counsel was done after Mr. 
 Curtis left. 
 
 I think your Honor will find no difficulty in be- 
 lieving that Mr. Davis acted as counsel for Shadrach, 
 and was in attendance for that purpose. 
 
 2. To connect Mr. Davis with the rescue, the gov- 
 ernment has found it necessary to contend that he 
 left the court-room and returned, shortly before the 
 rescue took place. The only witness to this is Prescott; 
 and how does he stand .^^ Prescott was in the entry 
 before the rescue took place, he heard it debated, he 
 saw it through, he gave no notice to any one, but evi- 
 dently, from the testimony of Hanscom, he sympa- 
 thized with the rescuers, and expressed his sympathy 
 in a very unguarded manner for a man who was pre- 
 sent, in the midst. All that day and the next, with 
 the vanity of a youth who has been the fortunate 
 spectator of the great event of the day, a fire, a hang- 
 ing, or a murder, he vaunts his connection and sym- 
 
198 RICHARD HENRY DANA, JR. 
 
 pathy with the rescue. On the third day come the 
 arrests. He finds the government has learned that 
 he was present. Six months in jail, and a thousand 
 dollars fine, is no trifle to a mechanic's apprentice. He 
 becomes alarmed, and offers himself as State's evi- 
 dence, and becomes a swift, a terrified, and a blinded 
 witness for the government. He says he was stand- 
 ing in the entry by the recess that leads to the east 
 door and the water-closet. While there, he saw a 
 gentleman come along the entry and go past him into 
 the recess, and he thinks through the east door into 
 the court-room. If this was Mr. Davis, he must have 
 gone through that door, for he was in the room and 
 left it again a minute after. This gentleman he is 
 sure was Mr. Davis, although he did not then know 
 him by name and had only seen him once. Nor was 
 there anything then to call his attention to a casual 
 passer-by. 
 
 Now, may it please your Honor, how long and when 
 was Prescott at that post.^ According to his own tes- 
 timony, about two minutes before the rescue began, 
 and as soon as he saw the attempt was serious, he left 
 that place for the stairs. Mr. Davis, then, must have 
 entered the east door one or two minutes before he 
 went out of the west door. Now, Mr. Warren, the 
 deputy marshal, testifies that he passed through the 
 entry into this closet just about two minutes before 
 the rescue, and remembers seeing a young white man 
 standing at the corner. To avoid the effect of this 
 evidence, Prescott is recalled and says he remembers 
 also to have seen a man come out at the east door and 
 go into the closet, at this moment. But here the wit- 
 ness made a mistake. He thought that Mr. Warren 
 went through the east door, but Mr. Warren says 
 
ARGUMENT FOR CHARLES G. DAVIS 199 
 
 that he came along the entry, and had not been in or 
 out of that door. What then is the predicament in 
 which Fresco tt has involved himself? Three differ- 
 ent men must have gone into that recess in the short 
 space of two minutes; two of them, at least, must have 
 been in the closet at the same minute; and the east 
 door must have been opened three times upon a knock 
 from without. 
 
 Against this evident mistake or willful perversion, 
 what is the evidence.^ Mr. Riley and Mr. Warren both 
 say that the east door was fastened on the inside, with 
 strict orders not to have it opened at all; and so strict 
 were they, that they themselves went and came by 
 the west door. No one can be found who opened that 
 door or saw it opened, or saw Mr. Davis go in or out 
 at it, and it is next the marshal's desk, and in plain 
 sight of every one. No one could come in at it, without 
 knocking and having it opened from within. During 
 the half-hour before the rescue, there was no one in 
 the room but the prisoner, the officers, and the coun- 
 sel. The doors were both in plain sight, the east door 
 locked, and at the west door two officers, between 
 whom every person must pass. Both these officers 
 testify that Mr. Davis did not go out or in to their 
 knowledge. Byrnes, Neale, and Sawin, the other of- 
 ficers, did not see him go, and think he did not leave 
 the room. Mr. Riley is confident he did not leave the 
 room. Mr. Wright found Mr. Davis in the room, 
 half an hour before the rescue, and is sure he did not 
 leave. Not a man in the court-room saw him go or 
 come, or believes that he did so. If Prescott's con- 
 jecture is true, Mr. Davis must have gone out past 
 the officers at the west door, returned to the east 
 door, knocked and been admitted by another officer. 
 
200 RICHARD HENRY DANA, JR. 
 
 — besides the inconsistencies about the men in the 
 closet. 
 
 We might well ask, what if this were Mr. Davis? 
 What does it prove .^ He spoke to no one, except a 
 "good day" to one man, and took no notice of the 
 crowd at the door. But I will not argue this supposi- 
 tion, for it is not true. It was not Mr. Davis. He did 
 not leave the room until he went out for the last time. 
 Something has been attempted to be made out of 
 Mr. Davis's conversation with the officers in the 
 room. A man engaged in a plot for a rescue would 
 not be likely to expose himself to suspicion by vio- 
 lent remarks to officers. But take the evidence as it 
 stands. At the request of Mr. List, he asked Sawin, 
 whom he knew, if the man next Shadrach was a South- 
 ern man. This was proper. The counsel did not wish 
 a man to sit next the prisoner, who might converse 
 with him for the purpose of getting admissions from 
 him. They feared he might be an agent of the claim- 
 ant. He said privately to Mr. Sawin, whom he had 
 known intimately for years, that this was a dirty busi- 
 ness he was engaged in. He did not know Mr. Sawin 
 to be an officer of the court. He knew him as a city 
 constable; and supposed he had let himself out by 
 the day as a catcher of fugitive slaves. I know some- 
 thing of the feelings of Southern gentlemen as to this 
 class of men. They are necessary evils. They use 
 them as we use spies, informers, and deserters in war; 
 they use them, but they despise them. I remember 
 being in one of the chief cities of Virginia, and passing 
 a large, handsome house, when my friend said to me, 
 "There lives perhaps the richest man in our town, 
 but he visits nowhere, nobody notices him. He is 
 looked upon with aversion. He is a dealer in slaves! 
 
ARGUMENT FOR CHARLES G. DAVIS 201 
 
 He keeps a slave-market, and pursues fugitives!" 
 They look upon this occupation with as much con- 
 tempt, ay, with more contempt than we seem to 
 now; for there is a higher spirit in their aristocracy 
 than in the ruling classes of our Northern cities at 
 this moment. This was the feeling of Mr. Davis when 
 he spoke to Sawin. This is the feeling of every man of 
 honor. He wished a man whom he knew to be en- 
 gaged in a more respectable business. I have said the 
 same. I saw a man I knew in court the other day, 
 letting himself by the dollar a day, in slave-catching. 
 I begged him, if he could find any honest mode of get- 
 ting a living, to abandon it. 
 
 The Commissioner. Did you know him to be en- 
 gaged in his legal duties.? 
 
 Mr. Lunt. a very improper remark! 
 
 Mr. Dana. I venture to suggest not. The remark 
 was with reference to the future, and not to the pre- 
 sent. 
 
 The Commissioner. I see no distinction between 
 attempting to deter men from executing the law and 
 assisting in violating it. 
 
 Mr. Dana. I am sorry I cannot see the impropri- 
 ety of it. Perhaps I have not made myself clearly un- 
 derstood. Mr. Davis expressed his opinion that the 
 man had better be in better business. 
 
 The Commissioner. It was equivalent to saying 
 to the officer that the execution of the law was a mean 
 business. 
 
 Mr. Dana. That I propose to argue. 
 
 The Commissioner. On that point, the defendant 
 himself intimated, in his cross-examination, that the 
 expression was not used as an observation in general. 
 
202 RICHARD HENRY DANA, JR. 
 
 On being asked whether the remark was not said with 
 regard to his business, he replied, yes. 
 
 Mr. Dana. I did not so understand it. He intended 
 to say this: "Mr. Sawin, you and I are old acquaint- 
 ances. You are not obliged to do this business. It 
 is mean business. Why do you volunteer in it.^ " This 
 is what I myself have said, and what every high- 
 minded man must feel. 
 
 Mr. Lunt here intimated that Mr. Dana might 
 find himself changing places at the bar, and be a de- 
 fendant instead of counsel, if he advocated and ex- 
 pressed such sentiments. 
 
 Mr. Dana simply bowed to the attorney, and pro- 
 ceeded. 
 
 No citizen is bound to an active execution of this 
 law, unless called upon as one of the fosse comitatus. 
 Did your Honor feel bound to join in the pursuit last 
 Saturday, when the mob passed you at the corner of 
 Court Street? Do you feel bound, of a pleasant even- 
 ing, to walk about in the neighborhood and see what 
 fugitives you can find and dispose of? Would any 
 compensation tempt you to do it? 
 
 On the subject of the conversation with Byrnes, 
 that was considered, of course, very truculent, on the 
 government's evidence. But when explained by Mr. 
 Minns, what is it? The defendant knows that the 
 cause in which he is engaged, by a strange revulsion 
 of public feeling, is unpopular. It is unprofitable, and 
 whatever is unprofitable is unpopular. It is not gen- 
 teel, and persons doubtful of their gentility ridicule it. 
 Now Mr. Davis being engaged in this unpopular 
 cause, Byrnes makes a remark which Mr. Minns 
 thought was intended to irritate Mr. Davis. 
 
ARGUMENT FOR CHARLES G. DAVIS 203 
 
 He did not hear the first part, but it ended with 
 "killing the negroes." Mr. Davis felt that it was in- 
 tended as a taunt to him. He answered him: "Then, 
 on that principle, you ought to have your throats 
 cut." I have no doubt it was a logical conclusion from 
 Mr. Byrnes's premises, and nothing more. 
 
 Up to this point, what is the evidence against Mr. 
 Davis .f^ Am I not right in saying, nothing whatever 
 — nothing more than any man would be subject to, 
 who acted as counsel.? 
 
 The only remaining point is his passing out of the 
 door, and his conduct in the entry. On this point 
 there is but one witness against him, and that is Mr. 
 Byrnes, who, unfortunately, holds the office of deputy 
 marshal. I shall not go into an examination of the 
 evidence as to the reputation of this man. Twelve 
 good men, known to us all, persons likely to know 
 Byrnes's character, have testified that it is and has 
 for years been bad, decidedly bad; and it was not 
 denied by this witness, that the verdict at East 
 Cambridge was rendered on the assumption of his 
 not being worthy of belief. His own witnesses were 
 chiefly casual acquaintances, or the boon companions 
 of his bowling-alley and billiard-room, the retailers of 
 liquors, men who, like him, live by violating the laws 
 by night, which he lives by enforcing in the daytime. 
 
 It is clearly proved that there was no suspicion of a 
 rescue, either in the court-room or in the entry, until 
 the instant it took place. Prescott did not suspect it. 
 Mr. Homer, the highly respectable assistant clerk of 
 the Municipal Court, who saw the whole occurrence 
 from the stairway, did not think it would be anything 
 serious. Mr. Warren, the deputy marshal, passe 
 through the group at the door twice, but two or three 
 
204 RICHARD HENRY DANA, JR. 
 
 minutes before the rescue, and suspected nothing. 
 Five courts were in session, and persons were passing 
 up the stairs and through the passageway to the last 
 moment, and suspected nothing. The officers inside 
 suspected nothing. Their defense against negligence 
 is the defense of Mr. Davis. Mr. Davis knew that 
 Mr. Morton expected to purchase the freedom of 
 Shadrach. He had confidence that the documentary 
 evidence was fatally defective. He was engaged to 
 attend the consultations on the defense, and on the 
 Habeas Corpus, that afternoon. He saw that Mr. 
 Curtis was not disposed to hurry matters, or to deny 
 the prisoner full opportunities for defense. And I will 
 do Mr. Curtis the justice to say that I have no doubt 
 it was his object to exhibit this law to us in its most 
 favorable light; to justify its makers as far as possible. 
 Mr. Davis neither knew, nor suspected, nor thought 
 of a rescue at that door. Every witness says he went 
 out of the door in the usual manner, except Hutchins, 
 and when Hutchins thought he should have gone out 
 in full front, instead of sidewise, your Honor well 
 asked how otherwise could he have gone out, with a 
 crowd against the door, and in the passage? I see 
 that your Honor thinks nothing of that; although in 
 the more jealous eye of the district attorney, it is mat- 
 ter of suspicion. To minds so disposed, there is no- 
 thing but is proof of guilt. If Mr. Davis had marched 
 out in full front, it would have been in order to open 
 the door wider, for the conspirators to rush in. Just 
 so in the case of poor Shadrach's coat. Yesterday the 
 district attorney was certain that Mr. Davis, or 
 some one, apprised him of the intended rescue, be- 
 cause he pulled his coat off. Now, when it is proved, 
 by the government's own witnesses, that Shadrach 
 
ARGUMENT FOR CHARLES G. DAVIS 205 
 
 afterwards put his coat on again, I suppose his putting 
 it on will be just as good proof of the same thing. 
 
 Mr. Byrnes thinks he recognized Mr. Davis's voice 
 in the entry, calling out, "Take him out, boys!" But 
 the same cry was uttered several times, and Mr. 
 Homer and Mr. Hutchins, who saw Mr. Davis at the 
 moment, and were outside, say it did not come from 
 him, but from the negroes, and Prescott attributes it 
 to the negroes. Four men were nearer to Mr. Davis 
 than Byrnes was, and all of them exculpate Mr. Davis. 
 And Byrnes is confessedly hard of hearing, and not 
 particularly familiar with Mr. Davis's voice. More- 
 over his character for truth and veracity is impeached. 
 
 Mr. Davis was on or near the platform when Mr. 
 Homer saw him. Mr. Adams met him on the lower 
 floor, by the marshal's office, while the noise was go- 
 ing on upstairs ; talked with him two or three minutes, 
 and walked round the building, and saw the crowd go 
 up the street. This proves that Mr. Davis did not 
 linger near the rescuers; nor did he absolutely run 
 away, or fly, as a man would who desired to avoid 
 discovery. On the contrary, he did just as any other 
 person would have done. He stayed long enough to let 
 himself be seen by several persons, but not long enough 
 to be of any aid to the rescuers. Nothing can be 
 clearer of cause for imputation than the conduct of 
 Mr. Davis in the entry and on the stairway. 
 
 Such, please your Honor, is all the evidence against 
 the defendant. It is reduced to an exclamation on 
 the staircase, sworn to, not very confidently, by a deaf 
 man, who was too far off to hear well at any rate of 
 hearing, denied by three officers, with good hearing, 
 two of whom were outside, while a dozen voices were 
 calling out the same thing at the same moment; the 
 
206 RICHARD HENRY DANA, JR. 
 
 moment, too, one of alarm and excitement on the part 
 of the officers. If such evidence is sufficient, who can 
 be safe? Who would dare to act as counsel in any case 
 of public excitement, with a suspicious and angry- 
 government watching every motion, served by officers 
 of broken-down reputations? 
 
 Please your Honor, I have done with the testimony. 
 On what principles of proof is the judgment to be 
 made up? 
 
 The Constitution requires that no person shall be 
 arrested without a warrant supported by oath. The 
 Act of 1789 requires these proceedings to be conformed 
 to proceedings in the state courts. In Massachusetts 
 it has always been required that the complainant 
 shall be first examined on his oath. In this case there 
 has been no examination under oath. Mr. George 
 Lunt has sworn, "so help me God," that Charles 
 Gideon Davis, a counselor of this court, has aided 
 in rescuing the prisoner. Yet, so help him God! he 
 knew nothing about the facts. He has made oath to 
 the form of the statute, and no more. 
 
 Mr. Lunt here intervened and said it was the cus- 
 tom for the district attorney to swear to complaints 
 on hearsay evidence. 
 
 Mr. Dana. But this is not stated as hearsay. It 
 is sworn to as a fact. Charles G. Davis ''did rescue," 
 and the above named George Lunt made oath to the 
 truth of the facts. As a question of conscience, I leave 
 it with that officer to settle with himself. As a matter 
 of law, as a matter of vital importance to every citi- 
 zen, as a great question of constitutional law, I 
 earnestly protest against the issuing of warrants on 
 
ARGUMENT FOR CHARLES G. DAVIS 207 
 
 the mere formal oaths of official persons, represent- 
 ing a party in the proceedings, and utterly ignorant 
 of the facts they swear to. If it be a custom, it is 
 more honored in the breach than in the observance. 
 But I deny that it is the custom. Complaints are 
 sworn to by persons knowing the facts always in the 
 state courts, and in my experience in the federal 
 courts. If the prosecuting officer is obliged to swear 
 to them, for want of other witnesses, he only swears 
 to his information and belief. 
 
 In closing my prolonged remarks, let me recapitu- 
 late our case. Mr. Davis is not the man to urge others 
 to acts he dares not commit himself. He believes this 
 dreadful statute unconstitutional, a violation of our 
 moral sense, a great breach upon the safeguards of 
 freedom everywhere. Yet he will oppose it legally, 
 by speech, by the pen, and in court. He will not yield 
 to it any voluntary obedience, but he will not use 
 force, or counsel citizens to use force to set aside the 
 laws. He rejoices that Shadrach is free. Every right- 
 minded man rejoices that he is free. Sober second 
 thought teaches him and all of us that violent coun- 
 sels are weak counsels. Better had it been for the 
 cause of freedom, if, when the marshal called out to 
 shoot the prisoner, some armed minister of the law 
 had shot dead the unarmed, unoffending man ! Better 
 had it been for him, and the cause of those like him, 
 if John H. Riley, instead of flying to the window, had 
 plunged that sword to the hilt in the heart of the cap- 
 tive! Better if this temple of justice, which has al- 
 ready been turned into a slave- jail and a slave-mar- 
 ket, had also been made the shambles and the grave ! 
 
 While we uphold the public peace and the dignity 
 of all laws, let us regard with tenderness and consid- 
 
208 RICHARD HENRY DANA, JR. 
 
 eration that poor class of oppressed men, our negro 
 population, on whom the statute falls with the ter- 
 rors and blackness of night. When one of their num- 
 ber, by his industry and abilities, has raised himself 
 to the dignity of a place in this bar, it was with morti- 
 fication I heard him insulted, yesterday, on the stand, 
 by an ofiicer of this court, who pointed him out, in 
 giving his evidence, as "the little darky lawyer." 
 While I rejoiced at the rebuke administered to that 
 ofiicer from the bench, it was with deep regret that 
 I saw the representative of the government lead off 
 the laugh of the audience against him. 
 
 Mr. Lunt. This is false. 
 
 Mr. Dana. Do you deny you did so? It was seen 
 and noticed by us all. I spoke to you at the time. 
 
 Mr. Lunt. I only smiled. I cannot always con- 
 trol my muscles. 
 
 Mr. Dana. I am sorry you could not control them 
 on this occasion. It led off and encouraged others, 
 who take their cue from persons in high stations. 
 
 The doings of these last few days are now part of 
 history. If there has been a hasty and a needless arrest 
 of a respectable gentleman; if counsel have been in- 
 timidated, or witnesses threatened; if liberty of speech 
 and action have been periled ; if the dignity and duty 
 of office have been yielded to the unreasonable de- 
 mands of political agents, and the commands of a mis- 
 informed executive, — the inquest of public opinion 
 is to sit upon the whole transaction, and it will be held 
 up to the world. Proximus ardet Ucalegon! There are 
 revolutions in the wheel of fortune. There are tides in 
 the affairs of men. 
 
ARGUMENT FOR CHARLES G. DAVIS 209 
 
 Let us hope that your Honor will be able to set this 
 occurrence in its true light: — a sudden, unexpected, 
 unpremeditated action of a group of excited men, and 
 successful because unexpected. But a sworn coun- 
 selor of this court, even in the excitement of the res- 
 cue of a slave to his freedom, by those of his own flesh 
 and bone, did not forget the duty he owed personally 
 to the court and the law. 
 
X 
 
 AGAINST THE RENDITION OF ANTHONY 
 BURNS TO SLAVERY 
 
 May 31, 1854. 
 
 [An interesting account of Mr. Dana's services in behalf of 
 fugitive slaves and rescuers is given in the Biography.^ 
 
 The speech took four hours and Mr. Dana says in his journal: 
 "My whole brief was on the sides of a piece of small note-paper 
 and consequently I was obliged to write from recollection." 
 
 I may repeat here that Mr. Dana refused all pay for his ser- 
 vices to fugitive slaves.^] 
 
 I CONGRATULATE you, slr, that your labors, so anx- 
 ious and painful, are drawing to a close. I congratu 
 late the Commonwealth of Massachusetts, that at 
 length, in due time, by leave of the marshal of the 
 United States and the district attorney of the United 
 States, first had and obtained therefor, her courts may 
 be reopened, and her judges, suitors and witnesses 
 may pass and repass without being obliged to satisfy 
 hirelings of the United States marshal and bayo- 
 neted foreigners, clothed in the uniform of our army 
 and navy, that they have a right to be there. I con- 
 gratulate the city of Boston, that her peace here is no 
 longer to be in danger. Yet I cannot but admit that 
 while her peace here is in some danger, the peace of all 
 other parts of the city has never been so safe as while 
 the marshal has had posse of specials in this court- 
 
 1 Vol. i, pp. 178-201, and for Anthony Burns case, vol. i, pp. 262-295. 
 
 2 BiograpJuj, vol. i, pp. 291-294. 
 
RENDITION OF ANTHONY BURNS 211 
 
 house. Why, sir, people have not felt it necessary to 
 lock their doors at night, the brothels are tenanted 
 only by women, fighting dogs and racing horses have 
 been unemployed, and Ann Street and its alleys and 
 cellars show signs of a coming millennium. 
 
 I congratulate, too, the government of the United 
 States, that its legal representative can return to his 
 appropriate duties, and that his sedulous presence will 
 no longer be needed here in a private civil suit, for the 
 purpose of intimidation, a purpose which his effort the 
 day before yesterday showed every desire to effect, 
 which, although it did not influence this court in the 
 least, I deeply regret your Honor did not put down at 
 once, and bring to bear upon him the judicial power 
 of this tribunal. I congratulate the marshal of the 
 United States, that the ordinary respectability of his 
 character is no longer to be in danger from the charac- 
 ter of the associates he is obliged to call about him. I 
 congratulate the officers of the army and navy, that 
 they can be relieved from this service, which as gentle- 
 men and soldiers surely they despise, and can draw 
 off their non-commissioned officers and privates, both 
 drunk and sober, from this fortified slave-pen, to the 
 custody of the forts and fleets of our country, which 
 have been left in peril, that this great republic might 
 add to its glories the trophies of one more captured 
 slave. 
 
 I offer these congratulations in the belief that the 
 decision of your Honor will restore to freedom this 
 man, the prisoner at the bar, whom fraud and violence 
 found a week ago a free man on the soil of Massachu- 
 setts. But rather than that your decision should con- 
 sign him to perpetual bondage, I would say — let this 
 session never break up ' Let us sit here to the end of 
 
212 RICHARD HENRY DANA, JR. 
 
 that man's life, or to the end of ours. But, assured that 
 your Honor will carry through this trial the presump- 
 tion which you recognized in the outset, that this man 
 is free until he is proved a slave, we look with confi- 
 dence to a better termination. 
 
 Sir Matthew Hale said it was better that nine 
 guilty men should escape than that one innocent man 
 should suffer. This maxim has been approved by all 
 jurists and statesmen from that day to this. It was ap- 
 plied to a case of murder, where one man's life was on 
 one side and the interest of an entire community on 
 the other. How much more should it be applied to a 
 case like this, where on the one side is something 
 dearer than life, and on the other no public interest 
 whatever, but only the value of a few hundred pieces 
 of silver, which the claimant himself, when they were 
 offered to him, refused to receive. It is not by rhetoric, 
 but in human nature, by the judgment of mankind, 
 that liberty is dearer than life. Men of honor set their 
 lives at a pin's fee on point of etiquette. Men peril 
 it for pleasure, for glory, for gain, for curiosity, and 
 throw it away to escape poverty, disgrace, or despair. 
 Men have sought for death, and digged for it as for hid 
 treasure. But when do men seek for slavery, for cap- 
 tivity.^ I have never been one of those who think hu- 
 man life the highest thing. I believe there are things 
 more sacred than life. Therefore I believe men may 
 sacrifice their own lives, and the community, some- 
 times the single man, may take the lives of others. 
 Such is the estimation in which it is held by all man- 
 kind. No! there are some in my sight now who care 
 nothing for freedom, whose sympathies all go for des- 
 potism; but thank God they are few and growing 
 less. Such is the estimate of life compared with free- 
 
RENDITION OF ANTHONY BURNS 213 
 
 dom, which the common opinion of mankind and the 
 common experience of mankind has placed upon it. 
 Here is a question of a few despised pieces of silver on 
 the one hand, and on the other perpetual bondage of 
 a man, from early manhood to an early or late grave, 
 and the bondage of the fruit of his body forever. We 
 have a right, then, to expect from your Honor a strict 
 adherence to the rule that this man is free until he is 
 proved a slave beyond every reasonable doubt, every 
 intelligent abiding misgiving proved by evidence of 
 the strictest character, after a rigid compliance with 
 every form of law which statute, usage, precedent has 
 thrown about the accused as a protection. 
 
 We have before us a free man. Colonel Suttle says 
 there was a man in Virginia named Anthony Burns; 
 that that man is a slave by the law of Virginia; that he 
 is his slave, owing service and labor to him; that he 
 escaped from Virginia into this State, and that the 
 prisoner at the bar is that Anthony Burns. He says all 
 this. Let him prove it all! Let him fail in one point, 
 let him fall short the width of a spider's thread, in the 
 proof of all his horrid category, and the man goes free. 
 
 Granted that all he says about his slave in Virginia 
 be true — is this the man.^^ 
 
 On the point of personal identity, the most fre- 
 quent, the most extraordinary, the most notorious, 
 and sometimes the most fatal mistakes have been 
 made in all ages. One of the earliest and most pa- 
 thetic narratives of Holy Writ is that of the patriarch, 
 cautious, anxious, crying again and again, "Art thou 
 my very son Esau.^^" and, by a fatal error, reversing a 
 birthright, with consequences to be felt to the end of 
 time. You know, sir, — they are matters of common 
 knowledge, — that a mother has taken to her bosom 
 
214 RICHARD HENRY DANA, JR. 
 
 a stranger for an only son, a few years absent at sea. 
 Whole families and whole villages have been deceived 
 and perplexed in the form and face of one they have 
 known from a child. You have found it difficult to 
 recognize your own classmates, at the age of three or 
 four and twenty, who left you in their sophomore year. 
 Brothers have mistaken brothers. We have the Com- 
 edy of Errors. Let us have no Tragedy of Errors, here ! 
 The first case under this statute, the case of Gibson, 
 in Philadelphia, was a mistake. He was sworn to, and 
 the commissioner was perfectly satisfied, and sent him 
 to Maryland. Against the will of the claimant, from 
 the humanity of the marshal, who had his doubts, 
 and would not leave the man at the state line, but 
 went with him to the threshold of the door of the mas- 
 ter's house, the mistake was discovered before it was 
 too late. In the late case of Freeman, in Indiana, the 
 claimant himself was present, and the testimony was 
 entirely satisfactory, and he was remanded; but it 
 turned out a mistake, and he has recovered, I am told, 
 two thousand dollars in damages. These are the mis- 
 takes discovered. But who can tell over to you the 
 undiscovered mistakes? the numbers who have been 
 hurried off, by some accidental resemblance of scars or 
 cuts, or height, and fallen as drops, undistinguishable, 
 into the black ocean of slavery? 
 
 Make a mistake here, and it will probably be ir- 
 remediable. The man they seek has never lived under 
 Colonel Suttle's roof since he was a boy. He has al- 
 ways been leased out. The man you send away would 
 be sold. He would never see the light of a Virginia 
 sun. He would be sold at the first block, to perish 
 after his few years of unwonted service, on the cotton- 
 fields or sugar-fields of Louisiana and Arkansas. Let 
 
RENDITION OF ANTHONY BURNS 215 
 
 us have, then, no chance for a mistake, no doubt, no 
 misgiving! 
 
 What, then, is the evidence? They have but one 
 witness, and one piece of paper. The paper cannot 
 identify, and the proof of identity hangs on the testi- 
 mony of one man. It all hangs by one thread. That 
 man is Mr. Brent. Of him, neither you nor I, sir, know 
 anything. He tells us he is engaged in the grocery 
 business, and lives in Richmond, Virginia. Beyond 
 this, we know nothing, good or bad. He knew Burns 
 when a boy, running about at Colonel Suttle's, too 
 young to labor. He next hired him himself, in 1846 
 and 1847. This was seven years ago. He says Burns 
 is now twenty -three or twenty-four years of age. He 
 was then sixteen or seventeen years old; he is now a 
 matured man. 
 
 Since that time he has leased him, as agent for Colo- 
 nel Suttle, but does not seem to have been brought 
 in close contact with him, or to have done more than 
 occasionally meet him in the streets. The record they 
 bring here describes only a dark complexioned man. 
 The prisoner at the bar is a full-blooded negro. Dark 
 complexions are not uncommon here, and more com- 
 mon in Virginia. The record does not show to which 
 of the great primal divisions of the human race the 
 fugitive belongs. It might as well have omitted the 
 sex of the fugitive. It says he has a scar on one of his 
 cheeks. The prisoner has, on his right cheek, a brand 
 or burn nearly as wide as the palm of a man's hand. 
 It says he has a scar on his right hand. A scar! The 
 prisoner's right hand is broken, and a bone stands out 
 from the back of it, a hump an inch high, and it hangs 
 almost useless from the wrist, with a huge scar or gash 
 covering half its surface. Now, sir, this broken hand, 
 
216 RICHARD HENRY DANA, JR. 
 
 this hump of bone in the midst, is the most noticeable 
 thing possible in the identifying of a slave. His right 
 hand is the chief property his master has in him. It is 
 the chief point of observation and recollection. If that 
 hand has lost its cunning or its power, no man hears it 
 so soon and remembers it so well as the master. Now, 
 it is extraordinary, sir, that neither the record nor Mr. 
 Brent say anything about the most noticeable thing 
 in the man. Nowhere in Mr. Brent's testimony does 
 he allude to it, but only speaks of a cut. The truth is, 
 please your Honor, one of two things is certain here. 
 If Mr. Brent does know intimately Anthony Burns, 
 of Richmond, and has described him as fully as he can, 
 the prisoner is not the man. Anthony Burns was miss- 
 ing, and Mr. Brent hurried down to Alexandria to tell 
 Colonel Suttle. The record is made up, which is prob- 
 ably still only Mr. Brent on paper. Mr. Brent comes 
 here with Colonel Suttle, as his friend. Emissaries are 
 sent out with the description in their hand, and they 
 find a negro, with a huge brand on his cheek and a 
 broken and cut hand, and that is near enough for 
 catchers, paid by the job, to a "dark complexioned 
 man," with "a scar on the cheek and on the right 
 hand." Mr. Brent knows, and does not swear other- 
 wise, that the Anthony Burns he means had only a 
 scar or cut, and he distinctly said "no other mark." 
 But still he swears to the man. Identification is mat- 
 ter of opinion. Opinion is influenced by the temper, 
 and motive, and frame of mind. Remember, sir, the 
 state of political excitement at this moment. Remem- 
 ber the state of feeling between North and South; the 
 contest between the slave power and the free power. 
 Remember that this case is made a state issue by Vir- 
 ginia, a national question by the executive. Reflect 
 
RENDITION OF ANTHONY BURNS 217 
 
 that every reading man in Virginia, with all the pride 
 of the Old Dominion aroused in him, is turning his 
 eyes to the result of this issue. No man could be more 
 liable to bias than a Virginian, testifying in Massachu- 
 setts, at this moment, on such an issue, with every 
 powerful and controlling motive on earth enlisted for 
 success. 
 
 Take the other supposition, which may be the true 
 one, that Mr. Brent does not know Anthony Burns 
 particularly well. He goes down to Alexandria to tell 
 Colonel Suttle that he has escaped. The record is 
 made up there, as best they can. Mr. Brent did not 
 go there as a witness to identify, and does the best he 
 can. He does not recollect whether he is a negro or 
 mulatto, or of what shade, so he calls him "dark com- 
 plexioned," and he can speak only of a scar, he does 
 not know on which cheek, and of a scar on the hand. 
 Beyond this, he is uncertain. If this is so, your Honor 
 can have no satisfying description of Anthony Burns, 
 the slave of Colonel Suttle, if such a person there be. 
 
 But there is, fortunately, one fact, of which Mr. 
 Brent is sure. He knows that he saw this Anthony 
 Burns in Richmond, Virginia, on the 20th day of 
 March last, and that he disappeared from there on the 
 24th. To this fact, he testifies unequivocally. After 
 all the evidence is put in on our side to show that the 
 prisoner was in Boston on the 1st and 5th of March, 
 he does not go back to the stand to correct an error, or 
 to say that he may have been mistaken, or that he 
 meant only to say that it was about the 20th and 24th. 
 He persists in his positive testimony, and I have no 
 doubt he is right and honest in doing so. He did see 
 Anthony Burns in Richmond, Virginia, on the 20th day 
 of March, and Anthony Burns was first missing from 
 
218 RICHARD HENRY DANA, JR. 
 
 there on the 24th. But the prisoner was in Boston, 
 earning an honest livelihood by the work of his hands, 
 through the entire month of March, from the first 
 day forward. Of this your Honor cannot, on the 
 proofs, entertain a reasonable doubt. 
 
 William Jones, a colored man well known in this 
 city, who works for the city, and for the Mattapan 
 Company, and for others, and entirely unimpeached, 
 testifies that on the first day of March he met the pris- 
 oner in Washington Street. He knows the man. He 
 tells you of all the places he went to with him to find 
 work for him to do. He received him into his house as 
 a boarder on that day. On the 5th day of March they 
 began working together at the Mattapan Works, in 
 South Boston, cleaning windows and whitewashing, and 
 worked for five or six days. Then, on the 18th, they 
 worked at the City Building. Then Burns left him for 
 another employ. Jones cannot be mistaken as to the 
 identity. The only question would be as to the truth 
 of his story. It is a truth or it is a pure and sheer fabri- 
 cation. I saw at once, and every one must have felt, 
 that the story so full of details, with such minuteness 
 of dates and names and places, must either stand im- 
 pregnable or be shattered to pieces. The fullest test 
 had been tried. The other side has had a day in which 
 to follow up the points of Jones's diary, and discover 
 his errors and falsehoods. But he is corroborated in 
 every point. 
 
 He came into the room and recognized him at once, 
 and the prisoner recognized the witness. His testi- 
 mony corroborates Jones in another particular. Jones 
 says he remembers the dates from the fact of a dispute 
 between him and the prisoner, which led him to ask 
 Mr. Russell to enter the dates of the prisoner's coming 
 
RENDITION OF ANTHONY BURNS 219 
 
 to his house in his pocket-book, as Jones himself does 
 not write. This pocket-book was produced by Jones, 
 and Mr. Russell, who made the entries, was sworn by 
 us and has been here. 
 
 Mr. Whittemore is a member of the City Council, 
 and was one of the Directors of the Mattapan Com- 
 pany. He made a journey to the West, from which he 
 returned on the 8th day of March. On that day or the 
 next, he went to the works, where his counting-room 
 is. The prisoner and Jones were cleaning the windows 
 of the counting-room. He noticed the peculiar condi- 
 tion of his hand, and the mark on his cheek. He is sure 
 of the man and of the date. He heard at the armory 
 of the Pulaski Guards, of which he is lieutenant, of 
 Jones's testimony, and said to himself and others, "I 
 shall know that man,''' and came here to see. As soon 
 as he saw him, he knew him. 
 
 Now, sir, Mr. Whittemore, in answer to a question 
 from me, whether he was under the odium of being 
 either a Free Soiler or an Abolitionist, said that he was 
 a Hunker Whig. The counsel thought this an irrele- 
 vant question. I told him I thought it vital. Not that 
 the political relations of Mr. Whittemore could affect 
 your Honor's mind, but that it shows he has no bias on 
 our side. Moreover, I am anxious not only that your 
 Honor should believe our evidence, but that the pub- 
 lic should justify you in so doing. And there is no fear 
 but that the press and the public mind will be per- 
 fectly at ease if it knows that your Honor's judgment 
 is founded even in part, in a fugitive-slave case, in 
 favor of the fugitive, on the testimony of a man who 
 has such a status illcesw existimationis, as a Hunker 
 Whig, who is eke a train-band captain in a corps 
 under arms! 
 
220 RICHARD HENRY DANA, JR. 
 
 Jones says that they went to work every day at 
 seven o'clock. Mr. Culver, the foreman, and Mr. Put- 
 nam, a machinist, and Mr. Gilman, the teamster, of the 
 works, say that the hour of work was changed to half 
 after six on the first of April. They also are quite sure, 
 from the course of the work and their general recollec- 
 tion, that it was done early in March. Mr. Gilman 
 has an additional recollection that it was a few days 
 after pay day, which was March 1. Mr. Putnam has 
 a memorandum which shows that he began his own 
 work there on the 3d or 4th day of March, and he 
 says Jones began cleaning the windows a few days 
 after. 
 
 Then Mr. Brown, one of the city police, now on 
 duty, testifies that on entering the court-room, he re- 
 cognized the prisoner at once. He has no doubt of him. 
 He first saw him at the Mattapan Works cleaning win- 
 dows with Jones. He himself left off his work there on 
 the 20th of March, as his memorandum and recollection 
 show. About ten days before he left off he changed his 
 work to a new building in which there were no win- 
 dows. The windows were cleaned in the old building 
 and of course before the 10th of March. His attention 
 was called to the man at the time. He spoke to him, 
 and asked him to wash a certain window. 
 
 This is the testimony as to the Mattapan Works. 
 Is it not conclusive.^ It is clear that the work was done 
 there by Jones and a colored man from the 5th to the 
 10th of March. Jones worked there at no other time. 
 This man was the prisoner. On a question of identity, 
 numbers are everything. One man may mistake, by 
 accident, by design or bias. His sight may be poor, 
 his observation imperfect, his opportunities slight, his 
 recollection of faces not vivid. But if six or eight men 
 
RENDITION OF ANTHONY BURNS 221 
 
 agree on identity, the evidence has more than six or 
 eight times the force of one man's opinion. Each man 
 has his own mode and means and habits of observa- 
 tion and recollection. One observes one thing, and an- 
 other another thing. One makes this combination and 
 association, and another that. One sees him in one 
 light or expression, or position, or action, and another 
 in another. One remembers a look, another a tone, 
 another the gait, another the gesture. Now if a con- 
 siderable number of these independent observers com- 
 bine upon the same man, the chances of mistake are 
 lessened to an indefinite degree. What other man 
 could answer so many conditions, presented in so vari- 
 ous ways ? 
 
 On the point of the time and place, too, each of 
 those witnesses is an independent observer. These 
 are not links in one chain, each depending on an- 
 other. They are separate rays, from separate sources, 
 settling on one point. 
 
 Here we have the testimony of Mr. Favor, whom I 
 know you have noticed as a respectable man, who re- 
 members Jones bringing the prisoner to his shop, in 
 Lincoln Street, to find work, very early in March; and 
 Stephen Maddox, a tailor, says that Jones brought the 
 prisoner to his shop to find work. He remembers tell- 
 ing him that he should have no w^ork for him for two 
 months, as his outdoor work, cleaning, etc., did not 
 begin so as to require help before the first of May. 
 This is the natural observation, and it is as natural he 
 should remember it. A poor man was applying for 
 work. He was obliged to put him off, and, to show his 
 sincerity, he explained to him the course of his work. 
 He was obliged to sentence him to disappointment and 
 delay for two months. He remembered it. It would 
 
RICHARD HENRY DANA, JR. 
 
 be remembered by a kindly man, under such circum- 
 stances. 
 
 The attempt at contradiction as to the City Build- 
 ings fails. Mr. Gould confirms Jones's account that 
 he worked there on the 18th or 17th of March. He 
 does not recollect the prisoner being with him; but he 
 admits that he was there only twice a day, and Jones 
 said that the prisoner was there only an hour or so, to 
 help him a little without pay. 
 
 Mr. Brent puts his case resolutely and unequivo- 
 cally on the ground that the man he means was in 
 Richmond up to the 20th. We have proved that the 
 prisoner was here on the 1st and 5th and 10th and 
 18th. This is inconsistent with the claimant's case. 
 This witness does not pretend a mistake or doubt. 
 They cannot pretend one in argument, because he has 
 been in court all the while, and is not recalled. 
 
 If we had the burden of proof, should we not have 
 met it.f^ How much more then are we entitled to pre- 
 vail, where we have only to shake the claimant's case 
 by showing that it is left in reasonable doubt.^^ 
 
 Whatever confidence I may have in this position, 
 I must not peril the cause of my client by any over- 
 weening confidence in my own judgment. I must 
 therefore call your Honor's attention to the other 
 points of our defense. 
 
 Assume now, for the purpose of further inquiry, 
 that all our testimony is thrown out, and let the case 
 rest on their evidence alone. It is incumbent on them 
 to show that the prisoner owes service and labor to 
 Colonel Suttle, by the laws of Virginia, and that he 
 escaped from that State into Massachusetts. 
 
 Does he owe service and labor to Colonel Suttle.'^ 
 
 The claimant, perhaps, will say that the record is 
 
RENDITION OF ANTHONY BURNS 223 
 
 conclusive on the facts of slavery and escape, and that 
 the only point open is that of identity. That is so if 
 he adopts the proper mode of proceeding to make it so. 
 Section 10 of the Fugitive Slave Law provides a cer- 
 tain mode of proceeding, anomalous, in violation of 
 all rules of common law, common right and common 
 reason, a proceeding that has not its precedent, so far 
 as I can learn, in the legislation of any Christian na- 
 tion, therefore to be strictly construed, and not to be 
 availed of unless strictly followed. It provides that 
 the questions of slavery and escape shall be tried, ex 
 "parte, in the State from which the man escaped, and 
 not in the State where he is found. The hearing and 
 judgment are to be there and not here. This judgment, 
 being authenticated, is to be produced here, and the 
 commissioner here has only jurisdiction to inquire 
 whether the person arrested is the person named in 
 the judgment. He cannot go into the matters there 
 decided, but only see if the record fits the man. 
 
 Section 6 of the statute provides an entirely differ- 
 ent proceeding. It authorizes the court here to try the 
 questions of slavery and escape, as well as identity, 
 and requires them to be tried by evidence taken here, 
 or certified from the State from which he escaped, or 
 both. It is not pretended that this transcript of a re- 
 cord is such evidence. Now, which proceeding are we 
 under .'^ Doubtless under that provided in the sixth 
 section. The claimant introduces Mr. Brent, and by 
 him offers evidence to prove the fact of slavery, the 
 title of Colonel Suttle, and the escape. He goes fully 
 into these points. This was not offered as a mode of 
 proving identity. The identity was proved first, and 
 then the other evidence was put in. It was professedly 
 to prove title and escape. Parts of it were objected to 
 
224 RICHARD HENRY DANA, JR. 
 
 as not competent to prove those points, and advocated 
 as competent for that purpose, and on no other ground, 
 and ruled in or ruled out on that ground. They intro- 
 duced evidence tending to show that a certain negro 
 woman was a slave of Colonel Suttle's and that that 
 woman was the mother of Burns, and that his brothers 
 and sisters are slaves, and they introduced evidence 
 tending to show an escape, in the same manner. After 
 that, they offered the record and we objected to it, 
 and it was received de bene esse, and its admissibility 
 is now to be decided upon. 
 
 We say that the two proceedings cannot be com- 
 bined. The jurisdiction and duties of the magistrate 
 are different in the two cases. The rights of parties 
 are different. It is evident that the statute makes 
 them different proceedings and not merely different 
 proofs, for they are not merely put into separate sec- 
 tions, but each section contains a repetition of the 
 foundation of a proceeding, its progress, the decision 
 and execution, and each provides for the receiving of 
 evidence of identity. There is a different form of cer- 
 tificate required in the two cases. On the face of the 
 statute they are two proceedings. You cannot com- 
 bine scire facias on a record with a count in assumpsit, 
 proving the original debt by parol. You cannot, on the 
 voir dire, examine the party himself, and prove his in- 
 terest by other evidence also. 
 
 Even if the record can be combined with parol 
 proof, it can hardly be contended that it is conclusive 
 against the proof the claimant himself puts with it. 
 When the statute says it is conclusive, it means that 
 the defendant is not admitted to contradict it by 
 proof. But if the claimant introduces proof which 
 overthrows its allegations, can he contend that it is 
 
RENDITION OF ANTHONY BURNS 225 
 
 conclusive? If he proves that the right to the certifi- 
 cate is in Millspaugh, and not in Colonel Suttle, can 
 he fall back on his record and claim a certificate for 
 Colonel Suttle? If he proves that the man did not es- 
 cape, can he fall back on his record and claim a certi- 
 ficate for an escaped fugitive? 
 
 I pray your Honor, earnestly, to confine this record 
 — the venomous beast that carries the poison to life 
 and liberty and hope in its fang — to confine it in the 
 straitest limits. It deserves a blow at the hand of 
 every man who meets it. 
 
 If your Honor considers the record as admissible, in 
 other respects, and conclusive if admitted, we have ob- 
 jections to offer to it from the nature of its contents 
 and form. 
 
 In the first place, it does not purport to be a "record 
 of the matters proved." It is all in the way of recital. 
 It says, "On the application of Charles F. Suttle, 
 who this day appeared and made satisfactory proof 
 that, etc., it is ordered that the matters so proved and 
 set forth be entered on the records of this court," and 
 there it ends. Well, have they entered the facts on the 
 record? If so, I should like to see the entry. Where is 
 the transcript of that record? All we have here is the 
 porch to the building, with a superscription reciting 
 what is to be found within. We are entitled to the 
 building and its contents. 
 
 In the next place, the record does not, as I have 
 already once observed, set forth a description of the 
 person "with such convenient certainty as may be." 
 It does not tell you whether he is a negro, a mulatto, 
 a white, or an Indian. The rest of the description 
 would be full enough, if it fitted the prisoner at the bar. 
 That goes, to be sure, to the point of identity. But let 
 
226 RICHARD HENRY DANA, JR. 
 
 me remind you, sir, here, that a scar is not a large 
 brand, and that a scar is no adequate description of 
 the state or appearance of that man's hand. 
 
 The record is also objectionable, because it does not 
 allege that he escaped into another state. Unless he 
 has escaped into another state, the casus fwderis does 
 not arise. And how is your Honor to know that he did 
 escape into another state .^ The only evidence you can 
 legally receive is on the point of identity. If you pro- 
 ceed strictly by the record, you are without evidence 
 of one great fact necessary to call into action the con- 
 stitutional powers. 
 
 We have great confidence, please your Honor, that 
 the record will be excluded on one or more of these 
 points ; or that, if admitted, we may control it by the 
 claimant's own testimony. 
 
 Does he then, by the claimant's own evidence, owe 
 to Colonel Suttle service and labor .^^ 
 
 Their evidence shows conclusively that he does not. 
 Mr. Brent tells us that Colonel Suttle made a lease of 
 him to a Mr. Millspaugh of Richmond, in January last, 
 and that he was in the service of Mr. Millspaugh when 
 he disappeared. It is the ordinary case of a lease of a 
 chattel. The lessee has the temporary property and 
 control. The reversioner has no right to interfere with 
 the possession or direction of the chattel during the 
 lease. This proceeding has always been defended, by 
 those who hold it to be constitutional, on the ground 
 that it merely secures and affects the temporary con- 
 trol of the slave, and does not affect the general pro- 
 perty. It is not a judgment in rem. There is no decree 
 affecting title. If this is so, there can be no pretense 
 of a right on the part of the reversioner to the certifi- 
 cate prayed for here. A little consideration makes this 
 
RENDITION OF ANTHONY BURNS 227 
 
 clear. The claimant says he has escaped without 
 leave, and asks for power to reduce him into posses- 
 sion and under control again — into his own posses- 
 sion and under his own control. Now, Mr. Millspaugh 
 has the sole right of possession and control. Mr. Mills- 
 paugh may allow him to come to Massachusetts and 
 stay here until the end of the lease, if he chooses. Colo- 
 nel Suttle has nothing to say about it. If Mr. Mills- 
 paugh does not return him to Colonel Suttle at the 
 end of his lease, he is liable to Colonel Suttle on his 
 bond, which Mr. Brent tells us is given in these cases. 
 Suppose your Honor should grant the certificate, and 
 Colonel Suttle should take the man to Mr. Millspaugh, 
 Mr. Millspaugh would say to him, "Why are you car- 
 rying my man about the country.^ I have not asked 
 or desired you to do any such thing." 
 
 "But," says Colonel Suttle, "I have a certificate 
 from a commissioner in Boston certifying that he is 
 now owing me service and labor, and authorizing me 
 to take and carry him off." 
 
 "Then the commissioner did not know that I had 
 a lease of him." 
 
 "Yes, he did. Mr. Brent let that out. It came very 
 near upsetting our case. But we got our certificate, 
 somehow or other, notwithstanding." 
 
 But no such answer will be given to any certificate 
 to be issued by your Honor. On the contrary, when 
 Colonel Suttle goes back to Virginia and tells Mr. 
 Millspaugh that he was refused the certificate, Mr. 
 Millspaugh will say to him: "To be sure you were. 
 Did you not know law enough to know, you and Brent 
 together, that you had no right to the possession and 
 control of the man I have hired on a lease .^ Did you 
 suppose the Boston commissioners would have so 
 
228 RICHARD HENRY DANA, JR. 
 
 little regard for this species of property in Virginia as 
 to give it away to the first comer?" 
 
 Besides this lease, leaving only a reversion in Colonel 
 Suttle, the reversion itself is mortgaged. Mr. Brent 
 told us, in his simplicity, thinking he was all the time 
 proving prodigious acts of ownership, that Colonel 
 Suttle mortgaged Burns, with other property, to one 
 Towlson. This mortgage has never been paid or dis- 
 charged, so far as we know. The evidence leaves it 
 standing. Even if the reversioner could otherwise have 
 this certificate, he cannot here, for there is a mortgage. 
 A mortgage of a chattel passes the legal property, so 
 that the mortgagor cannot maintain trover for its con- 
 version. (Holmes vs. Bell, 3 Cush.) 
 
 There is greater need for adhering to this rule as to 
 the right of present possession and control in this pro- 
 ceeding than in ordinary actions, for an escape is an 
 essential element in the claimant's case. To consti- 
 tute an escape, the fugitive must have gone away 
 against the will of the person having a right to say 
 whether he shall go or come. This person is the lessee. 
 As Colonel Suttle could not authorize Burns to leave 
 Virginia, so neither could he forbid his leaving it. He 
 has simply nothing to say about it. He cannot author- 
 ize him to stay in Massachusetts, nor can he compel 
 him to go away. He may say that if he cannot, his 
 reversion is good for nothing. That is the case with all 
 leases of chattels. He should think of that when he 
 parts with his property. He does provide for it. He 
 takes a bond. If the man is not returned to him at the 
 end of his lease, let him look to his bond ! Let him not 
 come here, to Massachusetts, disturb the peace of 
 the nation, exasperate the feelings of our people to the 
 point of insurrection by this revolting spectacle, sum- 
 
RENDITION OF ANTHONY BURNS 229 
 
 mon in the army and navy to keep down by bayonets 
 the great instincts of a great people, haul to prison 
 our young men of education and character, and perse- 
 cute them even unto strange cities, and cause the 
 blood of a man to be shed. Let him look to his bond ! 
 If he must peril life, disturb peace, outrage feelings, 
 and exasperate temper from one end of the Union to 
 the other, let him do it for something that belongs to 
 him, not for a mortgaged reversion in a man. Let him 
 look to his bond ! 
 
 Mr. Millspaugh, who alone has the right, if any one, 
 to institute these proceedings, has done nothing about 
 them. They do not produce even his affidavit. 
 
 In the next place, setting aside the difficulty about 
 the lease, and the mortgage, and the identity, has the 
 man ever escaped .^^ He is said to have escaped from 
 the control and possession of Mr. Millspaugh. How 
 do we know that.^^ The only evidence is that of Mr. 
 Brent, and what does Mr. Brent know about it.^ He 
 only knows that he was in Richmond on the 20th, and 
 was missing on the 24th. He does not even say that 
 he has ever spoken to Mr. Millspaugh about it, or that 
 Mr. Millspaugh was at home, or has complained about 
 it. Mr. Millspaugh may have given him leave, or may 
 not care whether he is away or not. There is no evi- 
 dence of an escape. There is only evidence that he is 
 missing. He was there. Now (for the argument, grant 
 it) he is here. What of it .^ Did he come away of his own 
 will, and against the will of Mr. Millspaugh.^ Unless 
 both these concur, there is no escape. There is no evi- 
 dence on either point, except the evidence of the pris- 
 oner, which they have put in. Mr. Brent says that, 
 on the night of the arrest. Colonel Suttle asked the 
 prisoner how he came here. He replied that he was at 
 
230 RICHARD HENRY DANA, JR. 
 
 work on board a vessel, became tired and fell asleep, 
 and was brought off in the vessel. As they have put 
 in this evidence, they are bound by it. This shows 
 there was no escape, for it is the only evidence at 
 all bearing upon the character of his act. Taking this 
 to be true, as the claimants must, there is no escape. 
 In Aves's case, 18 Pickering, 193, and Sims's case, 7 
 Cushing, 285, it has been decided that the escape is 
 the casus foederis under the Constitution. No matter 
 how the slave got here, if he did not voluntarily es- 
 cape against his master's will, unless both these ele- 
 ments concur, he cannot be taken back. Therefore 
 the slave was held free, in a case where he and his mas- 
 ter were both sent here by a superior power, in a pub- 
 lic vessel. (Referred to in Sims's case.) 
 
 If there was any doubt about this matter of escape, 
 the point should be determined against the claimant, 
 because he has failed to produce proof within his power 
 which would settle the matter. He has not produced 
 the only man beside the fugitive who knows whether 
 he did escape or not. If he could not produce him in 
 person, if there be a judge or a justice of the peace in 
 the Old Dominion, he could have brought his affidavit. 
 He has had time to procure it since this trial began. 
 He does not ask for a delay that he may procure it. 
 
 The only evidence, in this conflict, which can aid 
 your Honor's judgment, is the evidence of the admis- 
 sion of the prisoner, made to Colonel Suttle, on the 
 night of the arrest. He was arrested suddenly, on a 
 false pretense, coming home at nightfall from his day's 
 work, and hurried into custody, among strange men, 
 in a strange place, and suddenly, whether claimed 
 rightfully or claimed wrongfully, he saw he was 
 claimed as a slave, and his condition burst upon him 
 
RENDITION OF ANTHONY BURNS 231 
 
 in a flood of terror. This was at night. You saw him, 
 sir, the next day, and you remember the state he was 
 then in. You remember his stupefied and terrified con- 
 dition. You remember his hesitation, his timid glance 
 about the room, even when looking in the mild face 
 of justice. How little your kind words reassured him. 
 Sir, the day after the arrest you felt obliged to put off 
 his trial two days, because he was not in a condition 
 to know or decide what he would do. 
 
 Now, you are called upon to decide his fate upon 
 evidence of a few words, merely mumblings of assent 
 or dissent, perhaps mere movings of the head, one way 
 or the other, construed by Mr. Brent into assent or 
 dissent, to questions put to him by Colonel Suttle, put 
 to him at the moment the terrors of his situation first 
 broke upon him. That you have them correctly, you 
 rely on the recollections of one man, and that man tes- 
 tifying under incalculable bias. If he has misappre- 
 hended or misrepresented the prisoner in one respect, 
 he may in another. In one respect we know he has. 
 He testifies that when Colonel Suttle asked him if he 
 wished to go back, he understood him to say he did. 
 This we know is not true. The prisoner has denied it 
 in every form. If he was willing to go back, why did 
 they not send to Cofiin Pitts's shop, and tell the pris- 
 oner that Colonel Suttle was at the Revere House, and 
 would give him an opportunity to return.^ No, sir, 
 they lurked about the thievish corners of the streets, 
 and measured his height and his scars to see if he an- 
 swered to the record, and seized him by fraud and vio- 
 lence, six men of them, and hurried him into bonds 
 and imprisonment. Some one hundred hired men, 
 armed, keep him in this room, where once Story sat in 
 judgment — now a slave-pen. One hundred and fifty 
 
232 RICHARD HENRY DANA, JR. 
 
 bayonets of the regulars, and fifteen hundred of the 
 mihtia keep him without. If all that we see about 
 us is necessary to keep a man who is willing to go back, 
 pray, sir, what shall we see when they shall get hold of 
 a man who is not willing to go back.^^ 
 
 I regret, extremely, that you did not, sir, adopt the 
 rule that in the trial of an issue of freedom, the admis- 
 sions of the alleged slave, made to the man who claims 
 him, while in custody, during the trial, should not be 
 received. That ruling would have been sustained by 
 reason, and humanity, and precedent. Failing that, I 
 hoped the facts of this case would show enough of in- 
 timidation to throw out the evidence. At least, they 
 show enough to deprive it of all weight. I have re- 
 minded you of his condition the next morning. What 
 must it have been there .^^ One of his keepers. True, 
 says he was that night a good deal intimidated. Who 
 intimidated him? Do you recollect the significant 
 words of Colonel Suttle, "I make no coiri'promises with 
 you! I make you no promises and no threats." This 
 means : It is according to the course you take now that 
 you will be treated when I get you back. If you put 
 me to no trouble and expense, it will be few stripes 
 or no stripes. If you do, it will be many stripes. Was 
 ever man more distinctly told it would be better for 
 him if he acquiesced in everything, yielded every- 
 thing, assented to everything.^ That is what those 
 words, uttered in a tone, no doubt, that he well under- 
 stood, conveyed to his mind. But I am wasting words. 
 I know that your Honor will give little or no weight to 
 testimony so liable, at all times, to misconception, 
 misrecoUection, perversion, and, in this case, so cruel 
 to use against such a person under such circumstances. 
 
 You recognized, sir, in the beginning, the presump- 
 
RENDITION OF ANTHONY BURNS 233 
 
 tion of freedom. Hold to it now, sir, as to the sheet- 
 anchor of your peace of mind as well as of his safety. 
 If you commit a mistake in favor of the man, a pecun- 
 iary value, not great, is put at hazard. If against him, 
 a free man is made a slave forever. If you have, on 
 the evidence or on the law, the doubt of a reasoning 
 and reasonable mind, an intelligent misgiving, then, 
 sir, I implore you, in view of the cruel character of 
 this law, in view of the dreadful consequences of a mis- 
 take, send him not away, with that tormenting doubt 
 on your mind. It may turn to a torturing certainty. 
 The eyes of many millions are upon you, sir. You are 
 to do an act which will hold its place in the history of 
 America, in the history of the progress of the human 
 race. May your judgment be for liberty and not for 
 slavery, for happiness and not for wretchedness; for 
 hope and not for despair; and may the blessing of Him 
 that is ready to perish come upon you. 
 
XI 
 THE "GRASP OF WAR" SPEECH ^ 
 
 June 21, 1865, 
 
 [There are two points in this speech of special interest : one the 
 theory by which our government could dictate terms for the re- 
 storation of the states lately in secession and at war ; and the other, 
 Mr. Dana's opinion that the voting franchise should be granted 
 the freedmen on property and educational qualifications. 
 
 As to the first point, Mr. Dana's speech is plain enough, that the 
 federal government in times of peace had no right to control the 
 domestic regulations of the various states on such subjects as 
 slavery, education, and the right to vote or testify ; that the consti- 
 tutions of the various states forming the Southern Confederacy, 
 before, during, and at the end of the war, recognized slavery and 
 discriminated against persons of color; that a great war had been 
 carried on, the main issues of which were slavery and union; and 
 that the Confederate States were still in the "grasp of war." 
 
 But there is one subject, which was very familiar and well 
 known to Mr. Dana's hearers at the time, but is not so well under- 
 stood now, and that is, the main doctrine of the war-powers under 
 the United States Constitution. Therefore let me state that there 
 is one principle recognized in the construction of that Constitu- 
 tion, and that is, that where that instrument is silent or doubtful, 
 we must consider the principles of jurisprudence existing at the 
 time of its adoption, and the law of national self-preservation 
 within those principles. The Constitution had no provision as to 
 what would happen if a number of the states should secede, 
 
 ^ Delivered at a meeting held iu Faneuil Hall, Boston, to consider the 
 subject of "Re-organization of the Rebel States." Reprinted from an 
 original report. 
 
THE "GRASP OF WAR" SPEECH 235 
 
 wrongfully form a de facto nation and wage war against the federal 
 government on important issues. In the absence, then, of such a 
 provision, Mr. Dana invoked the recognized principles as applied 
 to war. These, Mr. Dana claimed, gave the successful party the 
 right to enforce the issues on which the war was fought as against 
 the defeated power, as long as it was within the "grasp of war." 
 
 While Mr. Dana set forth the principles by which the issue of 
 the Civil War could constitutionally be established, it by no 
 means follows that he approved the extremes to which the prin- 
 ciples were carried out, and the "carpet-bag" government which 
 followed. He was quite disgusted with these. As an illustration, 
 the only estrangement between Mr. Dana and his life-long friend, 
 Charles Sumner, arose because Mr. Dana opposed Sumner's 
 extreme reconstruction views. He had differed from Mr. Sum- 
 ner's policies during the Free Soil movement before the war; but 
 that did not prevent Mr. Sumner from calling at our house and 
 talking with my father and entertaining us children nearly every 
 Sunday after his two o'clock dinner at Longfellow's. Their dif- 
 ferences on the reconstruction policies, however, were such that 
 Sumner broke ofif social relations with my father until duringthe 
 last year or two before Sumner died. 
 
 I would also call attention to a popular belief, with which Mr. 
 Dana had to contend, not only in this speech, but in the early 
 days of the war in the Prize Causes. Some people in the North 
 thought it necessary, in order to be consistent in our view that 
 states had no right to secede, and to maintain that the Southern 
 Confederacy should not be recognized by foreign nations as an 
 independent sovereignty, to minimize the war into a local, insur- 
 rectionary movement. Even President Lincoln and Secretary of 
 State Seward felt this in some of the early proclamations and 
 diplomatic correspondence. After the decision of the United 
 States Supreme Court, unanimously sustaining the war-powers 
 in the way of blockade, prize and capture of enemies' property at 
 sea, in the war against the Confederacy, many prominent per- 
 sons ^ claimed that that decision went a great way towards ad- 
 mitting the right of the states to secede, and recognizing their 
 1 See The Law Magazine, London, November, 1863. 
 
236 RICHARD HENRY DANA, JR. 
 
 independence. To counteract these views, Mr. Dana, in 1864, 
 published a pamphlet called "Enemy's Territory and Alien Ene- 
 mies — What the Supreme Court decided in the Prize Causes."^ 
 How persistent was this popular belief which Mr. Dana tried to 
 counteract appears in the Biography, where, speaking of this 
 "Grasp of War" speech, Mr. Adams says: — ■ 
 
 "Dana's mind was naturally subtle. He was always ready to 
 devise some ingenious, logical process for avoiding either horn 
 of the dilemma, just as, in 'the Prize Cases,' he showed the Su- 
 preme Court how the United States could at the same time be 
 carrying on a war, with all the rights incident to war, so far as the 
 Southern Confederacy was concerned; and yet, so far as foreign 
 powers and neutrality were involved, it was no war at all, but 
 only a local insurrectionary movement. But when the issue was 
 decided in the field, — when Lee had surrendered at Appomat- 
 tox, and Davis was a prisoner at Fortress Monroe, — the ' local 
 insurrectionary movement ' hypothesis was quietly though some- 
 what contemptuously relegated to the receptacle of things for 
 which no further use exists. Reconstruction then became a 
 question of practical politics, and the provisions of the Consti- 
 tution had to be curiously scanned and construed anew. The war- 
 power admitted of the desired development, and Mr. Dana was 
 again equal to the occasion." 
 
 Even practising lawyers entertained this popular opinion. Mr. 
 Thornton K. Lothrop wrote a letter on the subject of Mr. Dana's 
 argument, which is published in the Biography. Though asso- 
 ciated with Mr. Dana at the time of the Prize Causes, Mr. 
 Lothrop says he had not "taken any professional part in these 
 cases." He wrote from Europe, "with no opportunity of con- 
 sulting . . . papers or any books," after a lapse of twenty-seven 
 years. In this letter, he expressed the idea that Mr. Dana was 
 performing (the simile is my own) in the arena before the Su- 
 preme Court the diflScult task of riding with one foot on the 
 war-power horse and the other on a "citizens-in-arms" pony 
 going the other way. Had Mr. Lothrop had an opportunity to 
 study the briefs, and the opinion of the court, he would have 
 ^ Published with this collection. 
 
THE "GRASP OF WAR" SrEECH 237 
 
 found that Mr. Dana was sitting squarely on the war-horse 
 alone, and that it was his opponents who were exhibiting the 
 " citizens-in-arms " pony. Mr. Dana never felt that it was neces- 
 sary so to minimize the war. 
 
 It was his opponents, not he, that claimed there was "no war 
 but only a local, insurrectionary movement," a mere "conflict 
 with citizens in rebellion." 
 
 As to the danger that calling the conflict "a great war" might 
 lead to the recognition of the independence by foreign countries, 
 how was it in our dealings with the Spanish colonies in America, 
 in revolt against Spain? As long as Spain was carrying on a vig- 
 orous and effective war, it was our general policy to remain neu- 
 tral. Only after long periods of a mere theoretical, ineffective, 
 paper war, in which Spain had practically abandoned active at- 
 tempts at coercion, did we recognize their independence. 
 
 It is true that, during the first month or two of the Civil War, 
 Mr. Dana hoped, with many others, that it would end in sixty 
 days; but thereafter, that there was a war, and a "large war," 
 formed the chief contention of Mr. Dana in the Prize Causes. 
 These causes arose out of captures at sea, that were made within 
 the first few months after the firing on Fort Sumter. In Mr. 
 Dana's argument before Judge Sprague, and later before the 
 United States Supreme Court, all within the first two years of the 
 war, his whole contention for the right of coercion by way of 
 blockade, prize, and capture of enemy's property at sea, was 
 based upon the argument that there was a war, and a large war, 
 and on the existence of a de facto, though not de jure, sovereign 
 power, and not mere citizens in rebellion, with which we were 
 carrying on the war, and boldly claimed that both sides had the 
 status and rights of belligerents. The very arguments, and even 
 the phrases and descriptions used in the "Grasp of War" speech 
 in 1865, follow closely those made in the Prize arguments in 
 1861-63, and in the "Enemy's Territory" pamphlet of 1864. 
 
 In order to show that I correctly state Mr. Dana's view as to 
 there being a war in the early days, in which he was consistent 
 to the end, let me turn to his brief in the Prize Causes. There 
 Mr. Dana says (page 13) : — 
 
238 RICHARD HENRY DANA, JR. 
 
 "They [the Confederates] attacked the forts, troops and ships 
 of the sovereign [i. e., federal] government by sea and land, and 
 fighting on the scale of a 'large war' is going on." 
 
 (The italics are my own.) 
 
 His brief had shown what were the war-powers in a war be- 
 tween independent nations. Having established these, he puts 
 the heading for the fourth section of his brief as follows : — 
 
 "In civil or domestic war, it is competent for the sovereign to 
 exercise belligerent powers." 
 
 He also says : — 
 
 "War is the exercise of force by bodies political, or bodies as- 
 suming to be bodies political, against each other, for the purpose 
 of coercion." 
 
 Then he states, in his brief, the facts as they existed, as fol- 
 lows : — 
 
 "Millions of the sovereign's [the Confederacy's] subjects unite 
 in the establishment of a new government over a portion of the 
 territory [of the United States] . . . They organize a sovereign 
 state over all this territory, not as a temporary expedient, but for 
 a permanency, and claim jurisdiction oi right over all the inhabit- 
 ants of the territory. Their government has all the functions of 
 a state, judicial, executive and legislative, and they claim recog- 
 nition as a sovereign by other powers. They establish this gov- 
 ernment de facto over the territory, and claim it de jure. They 
 treat all resistance to it by inhabitants as treason. They treat all 
 attempts by force of arms to put down this government and re- 
 establish the old sovereignty as acts of war. They declare that 
 war exists between them as one sovereignty, the parent state as 
 another. They raise armies and navies, establish a conscription 
 over all the inhabitants, issue letters of marque, and establish 
 prize courts. . . . Foreign nations recognize this state of things 
 as war, and concede to each of the powers engaged in it the right 
 of belligerents." 
 
 Again, he states the object of war is "coercion of the power you 
 are engaged with"; and says (page 12), — 
 
 "These circumstances show the doctrine of 'enemy's property' 
 is applicable to domestic or civil wars." 
 
THE "GRASP OF WAR" SPEECH 239 
 
 Considering the objections to this, he says (page 18), — 
 
 "The objections really amount to this, that war powers can 
 never be exercised in civil wars in any stage except by the rebels." 
 
 Nowhere in this brief, nowhere in the opinion of the Supreme 
 Court, which latter would be read over the civilized world, was 
 there any attempt to minimize the war so far as foreign coimtries 
 and neutrality were involved. There was no need of it. He not 
 only persuaded the Supreme Court that there was a war, "but," 
 to quote from the opinion, "it is not necessary, to constitute a 
 war, that both parties should be acknowledged as independent 
 nations or sovereign states"; ^ and again, "It is not necessary 
 that the independence of the revolting province or state should 
 be acknowledged in order to constitute a party belligerent in 
 the war." ^ 
 
 Again, in a political speech at Providence, Rhode Island, 
 March 25, 1863, Mr. Dana said, "We are at war — in a war of 
 immense proportions." 
 
 These same contentions, repeatedly made, of an actual and 
 great war against a de facto, though revolutionary, government, 
 which gave us the right of prize, blockade, and capture of enemy's 
 territory during the war, after the war, Mr. Dana contends in 
 this "Grasp of War" speech, gave us the right to impose condi- 
 tions upon those states which had voluntarily submitted their 
 issues to the arbitrament of war; and so, from the first year of 
 active conflict to the reconstruction period, Mr. Dana's position 
 was a consistent one of asserting a large war. His argument was 
 consistent with the facts. He convinced the entire Supreme 
 Court, some of whom were democrats in sympathy with state 
 supremacy, and who were not likely to be carried away by mere 
 "subtlety" of argument. The Supreme Court, dealing with the 
 argument of Mr. Dana's opponents, that it "is not a war but is 
 an insurrection," ^ says they "cannot ask a court to affect a tech- 
 nical ignorance of the existence of a war, which all the world ac- 
 knowledges to be the greatest civil war known in the historv of 
 
 1 Prize Causes, 2 Black, 666. 
 
 2 Prize Causes, 2 Black, 669. 
 
 ^ Quoted from the opinion of the court in the above case. 
 
240 RICHARD HENRY DANA, JR. 
 
 the human race, and thus cripple the arm of government and para- 
 lyze its power by subtle definitions and ingenuous sophisms." It 
 seems to me that Mr. Dana had "his feet on earth." His argu- 
 ment, in the Prize Causes, in his "Enemy's Territory" and in 
 his "Grasp of War" speech, was to reduce confusion of mind to 
 simple, fundamental principles of jurisprudence, based upon 
 existing facts. 
 
 In the Prize arguments, he went into the philosophy of war, 
 showed its meaning and powers, and explained the technical and 
 somewhat misleading definitions of the law of prize in the light 
 of that philosophy. In his "Grasp of War" speech he had no 
 need for a waste paper receptacle for anything he had pre- 
 viously affirmed. Before publication this note to the "Grasp of 
 War " speech was submitted to Mr. Adams, who said he had no 
 definite statements of Mr. Dana's in mind, but assumed that he 
 had held the views of Lincoln, Seward, and others, of the neces- 
 sity of maintaining before the European powers the local insurrec- 
 tion theory, which later had to be discarded. It was to Mr. 
 Dana's credit that he was the first boldly to assert the existence 
 of a great war, and the real safety and true policy of so doing. 
 If Mr. Dana's "Grasp of War" doctrine is not correct, then it 
 is hard to see why all the constitutions of the Southern States 
 adopted under coercion which must otherwise have been illegal 
 are not theoretically, at least, invalid, and perhaps also the 13th 
 and 14th Amendments to the United States Constitution. 
 
 As the entire Supreme Court had declared that it was the op- 
 ponents of Mr. Dana in the Prize Causes whose arguments were 
 "subtle," I would have nothing further to say on this subject, 
 did it not furnish me a text for emphasizing once more Mr. 
 Dana's power of original thought. I can see him now, short (he 
 was only five feet seven inches in height), erect, with square, 
 broad shoulders, a graceful figure, with small hands and feet, 
 curling hair and elastic step, walking up and down the room, 
 his head a little to one side, his eyes slightly raised, thinking out 
 some problem, or developing the arguments in its support. One 
 frequent form of problem arose when the accepted definitions of 
 common or international law needed recasting or dififerentiation, 
 
THE "GRASP OF WAR" SPEECH 241 
 
 to meet some new state of facts. Even the statute, or codified 
 law, with its confinement to set language, would often need con- 
 struction when applied to cases which the language did not fit. 
 When such a problem arose, he set himself to thinking out the 
 reasons that underlay the definitions. I heard him once say of an 
 eminent lawyer and judge, whom in other respects he admired, 
 that this man seemed to think that legal truths are in set phrases, 
 and that, with these as premises, he would, by logical process, 
 work out the conclusions as applied to new sets of facts, and if the 
 conclusions led to injustice, then so much the worse for justice; the 
 logic must stand. To minds that think of legal problems as thus 
 fettered to phrases, Mr. Dana's idea that the legal reasons and 
 principles were the masters and the phrases the slaves, and Mr. 
 Dana's ways of arguing would seem like subtle juggling with the 
 law. Yet, as in science, the law has had constant need of reword- 
 ing, and it is only as so recast by great minds into language more 
 fitting new conditions, that our plastic common and interna- 
 tional law can grow more and more nearly towards perfect justice. 
 I believe Mr. Dana's mind was eminently one of such high mas- 
 tery, and that perhaps no instance better illustrates this than his 
 dealing with the Prize Causes and the Reconstruction problems. 
 On the question of the franchise to the freedmen on education 
 and property qualifications, the speech itself only leads up to that 
 point, and prepares the mind for the definite statements of the 
 address. The address^ was drawn by Mr. Dana as chairman of 
 the committee to prepare the same. This speaks of the disabili- 
 ties of those in the South with a "traceable thread of African 
 descent," which "no achievements in war or peace, no acquisi- 
 tions of property, no education, no mental power or culture, no 
 merits, can overcome." Again, the address says, "We do not ask 
 that the nation shall insist on an unconditioned, universal suf- 
 frage"; and later, "We declare it to be our belief that if the na- 
 tion admits a rebel state to its full functions, with a constitution 
 which does not secure to the freedmen the right of suffrage in such 
 manner as to be impartial and not based in principle upon color, 
 and as to be reasonably attainable by intelligence and character 
 1 The parts not covered by Mr. Dana's speech are printed just after it. 
 
242 RICHARD HENRY DANA, JR. 
 
 . . . with the right to be educated, to acquire homesteads, and 
 to testify in court, the nation will be recreant to its duty to itself 
 and to them, and it will incvu*, and will deserve to incur, danger 
 and reproach proportioned to the magnitude of its responsibility." 
 
 Mr. Dana also makes a clear distinction between " social equal- 
 ity," which he disclaims, and political privileges, a distinction 
 now becoming better understood. He says : — 
 
 "The present question is one of political justice and safety, and 
 not of social equality. When the free man of color, educated in 
 the common schools, deposits a vote which he can write himself, 
 gives a deposition which he can read and sign, and pays a tax on 
 the homestead he has bought, the law forces no comparisons be- 
 tween his intellectual, moral, physical, and social condition and 
 that of the white citizen, of whatever race or nation, who lives, 
 votes, and testifies by his side." 
 
 It is now so generally believed that a property and educa- 
 tional qualification would have been wisest and most humane 
 for both the late master and the late slave, that we must recur to 
 the arguments that prevailed at that time, to see how strong they 
 were. It was then said that, unless universal manhood suffrage 
 were given the negroes, they would be unable to secure education 
 or to acquire property, and would be in danger of being reduced 
 to a condition of peonage, even should the Southern States in their 
 constitutions grant all the rights which we urged. The arguments 
 for this universal colored suffrage were based upon the assump- 
 tion that their conditions were those of the men of America of 
 1776. These latter were educated in the principles of liberty and 
 trained in the exercise of self-government in town-meeting and 
 colonial legislature, and were men of education, the majority of 
 whom were freeholders. They could skillfully strike and ward 
 with the weapons of franchise, though with all their skill they 
 sometimes erred ; but with the poor freedmen, who knew nothing 
 of the true principles of liberty, and were wholly unskilled in the 
 use of the sharp weapons that wound the clumsy user, it was a 
 totally different proposition. 
 
 As a matter of history, when given the ballot, and when in con- 
 trol, instead of voting money for their education, their representa- 
 
THE "GRASP OF WAR" SPEECH 243 
 
 lives voted money for salaries for themselves and their triends, 
 for railroad grants, and for almost everything but the best 
 interests of the colored race, apart from the few who got special 
 benefits, and the colored voters were misled by unscrupulous 
 politicians. The results are all too well known, and now it is 
 generally admitted by the colored people themselves, and urged 
 by their truest friends, that their great hope is in education, 
 manual and, for the most part, rudimentary, in morality, useful- 
 ness in the community, and in the acquisition of property by 
 honest work. The progress of the race in these respects has 
 recently been as great as was their retrogression when exercising 
 universal suffrage. 
 
 It is interesting to note that Abraham Lincoln, March 13, 1864, 
 had somewhat the same idea of limited suffrage. He then said, 
 "I hereby suggest . . . whether some of the colored people 
 might not be let in [to the elective franchise], as for instance the 
 very intelligent, and especially those who have fought gallantly 
 in our ranks." 
 
 Governor Orr of South Carolina, one of the Southern leaders, 
 approved of an amendment to the Constitution of North Caro- 
 lina, which had been proposed, allowing colored men to vote who 
 could read and write, or who had property worth $250; and intel- 
 ligent white Southerners in North Carolina, Alabama, Florida, 
 Mississippi, Texas, and Arkansas formed the same programme; ^ 
 but other counsels prevailed. 
 
 Let me say that the word " rebel " in this speech was not 
 used in ill will, but because, from the standpoint of those who 
 did not believe in the right of secession, the Southern States in 
 1865 were in "rebellion" as our colonies were in 1775.] 
 
 ''Grasp of War" Speech 
 
 ]Mr. President, — It was hoped by those who have 
 summoned us together this morning that a voice 
 
 ^ See Rhodes, History of the United States, vol. vi, p. 28, and also re- 
 ferences in index under "Negro Franchise." 
 
244 RICHARD HENRY DANA, JR. 
 
 might go out from Faneiiil Hall, to which the people 
 of the United States would listen, as in times past. 
 
 We deprecate, especially, anything like political 
 agitation of the questions before us; but a calm con- 
 sideration of them by the people is a duty and a neces- 
 sity. For, Mr. President and fellow citizens, the ques- 
 tions pressing upon this country are the most vast and 
 momentous that have ever presented themselves for 
 solution by a free people. 
 
 We wish to know, I suppose, first, What are our 
 powers? That is the first question — what are our just 
 powers.^ Second — What ought we to do.^^ Third — 
 How ought we to do it.f^ With your leave, I propose 
 to attempt an answer to these three questions. 
 
 What are our just powers.'^ W^ell, my friends, that 
 depends upon the answer to one question — Have we 
 been at war, or have we not.^ In what have we been 
 engaged for the last four years .^^ — has it been a war, 
 or has it been something else and other than war.^^ I 
 take it upon myself to assert, that we have been in a 
 condition of public and perfect war. It has been no 
 mere suppression, by municipal powers, of an insur- 
 rection for the redress of grievances. It has been a 
 perfect public war. The government has a right to 
 exercise, at its discretion, every belligerent power. 
 [Applause.] W^e are not bound to exercise them; the 
 enemy cannot compel us to do it; but, at our discre- 
 tion, we may exercise every belligerent power. Do you 
 doubt it? Does any man doubt it? [Voices — "No."] 
 
 I will tell you why you must not doubt it. In the 
 first place, the Supreme Court of the United States 
 has, by an unanimous decision, held that we are in a 
 public war, and that the government can exercise 
 every belligerent power. The court differed as to the 
 
THE "GRASP OF WAR" SPEECH 245 
 
 time when we entered upon such a war, and whether 
 recognition of war by Congress was necessary, but 
 that we came to a war at last, was their unanimous 
 decision. The Prize Courts, Kke the Temple of Janus, 
 are closed in peace and open only in war. The Prize 
 Courts have been thrown open, and every prize that 
 has been condemned in this country has been con- 
 demned upon the principle of a public war. Congress 
 gave us no rules for municipal condemnation, but left 
 the Prize Courts to the rules which govern public in- 
 ternational war. We have condemned the prizes upon 
 the same rules, and no other, than those by which we 
 condemned them in the war with Great Britain in 
 1812. This course of the Prize Courts has been sus- 
 tained by the Supreme Court, acted upon by the Ex- 
 ecutive, and recognized by Congress. The statutes, 
 too, have called it a war, in terms. The soldiers who 
 are enlisted — what are they enlisted for.^ Why, they 
 are enlisted "for the war," are they not.^ How is it at 
 this moment.^ Is not the Executive holding those 
 states by military occupation.'^ Are we not holding 
 them in the grasp of war.^ You cannot justify the 
 great acts of our government for the last three years 
 upon any other principle than the existence of war. 
 You look in vain in the municipal rules of a constitu- 
 tion to find authority for what we are doing now. 
 You might as well look into the Constitution to find 
 rules for sinking the Alabama in the British Channel, 
 — to find rules for taking Richmond. You might as 
 well look there to find rules for lighting General 
 Grant's cigar. [Laughter.] No; we stand upon the 
 ground of war, and we exercise the powers of war. 
 
 Now, my fellow citizens, what are those powers and 
 rights.^ What is a WAR.? War is not an attempt to kill, 
 
246 RICHARD HENRY DANA, JR. 
 
 to destroy; but it is coercion for a purpose. When a 
 nation goes into war, she does it to secure an end, and 
 the war does not cease until the end is secured. A box- 
 ing-match, a trial of strength or skill, is over when one 
 party stops. A war is over when its purpose is secured. 
 It is a fatal mistake to hold that this war is over, be- 
 cause the fighting has ceased. [Applause.] This war is 
 not over. We are in the attitude and in the status of 
 war to-day. There is the solution of this question. 
 Why, suppose a man has attacked your life, my friend, 
 in the highway, at night, armed, and after a death- 
 struggle, you get him down — what then.'^ When he 
 says he has done fighting, are you obliged to release 
 hivn? Can you not hold him until you have got some 
 security against his weapons. ^^ [Applause.] Can you 
 not hold him until you have searched him, and taken 
 his weapons from him.^^ Are you obliged to let him up 
 to begin a new fight for your life.^ The same principle 
 governs war between nations. When one nation has 
 conquered another, in a war, the victorious nation 
 does not retreat from the country and give up posses- 
 sion of it, because the fighting has ceased. No ; it holds 
 the conquered enemy in the grasp of war until it has 
 secured whatever it has a right to require. [Applause.] 
 I put that proposition fearlessly — The conquering 
 party may hold the other in the grasp of war until it has 
 secured whatever it has a right to require. 
 
 But what have we a right to require? We have no 
 right to require our conquered foe to adopt all our 
 notions, our opinions, our systems, however much we 
 may be attached to them, however good we may think 
 them; but we have a right to require whatever the 
 public safety and public faith make necessary. [Ap- 
 plause.] That is the proposition. Then, we come to 
 
THE "GRASP OF WAR" SPEECH 247 
 
 this : We have a right to hold the rebels in the grasp of 
 war until we have obtained whatever the public safety 
 and the public faith require. [Applause, and cries of 
 "good."] Is not that a solid foundation to stand upon? 
 Will it not bear examination? and are we not upon it 
 to-day? 
 
 I take up my next question. We have settled what 
 our just powers are. Need I ask an audience, in 
 Faneuil Hall, what it is that the public safety and the 
 public faith demand? Is there a man here who doubts? 
 In the progress of this war, we found it necessary to 
 proclaim the emancipation of every slave. [Applause.] 
 On the first day of January, 1863, Abraham Lincoln, 
 of blessed memory, declared the emancipation of every 
 slave. It was a military act, not a civil act. Military 
 acts depend upon military power, and the measure of 
 military power is the length of the military arm. That 
 proclamation of the first of January did not emanci- 
 pate the slaves, but the military arm emancipated 
 them, as it was stretched forth, and made bare. [Ap- 
 plause.] District after district, region after region, 
 state after state, have been brought within the grasp 
 of the military arm, until at last, to-day, the whole 
 rebel territory lies within and beneath the military 
 arm. [Loud applause.] Therefore, in state after state, 
 region after region, the slaves have been emancipated, 
 until at last, over the whole country, every slave is 
 emancipated. [Renewed applause.] I would under- 
 take to maintain, before any impartial neutral tri- 
 bunal in Christendom, the proposition that we have 
 to-day an adequate military occupation of the whole 
 rebel country, sufficient to efl^ect the emancipation of 
 every slave, by admitted laws of war. Whatever dif- 
 ferences of opinion there may have been as to the man- 
 
248 RICHARD HENRY DANA, JR. 
 
 ner in which the proclamation operated, there is no 
 doubt left as to the result; because we have all the 
 ground the slaves have stood upon within our military 
 occupation. 
 
 The slaves are emancipated. In form, this is true. 
 But the public faith stands pledged to them, that they 
 and their posterity forever shall have a complete and 
 perfect freedom. [Prolonged applause.] Not merely 
 our safety ; no, the public faith is pledged that every 
 man, woman, and child of them, and their posterity 
 forever, shall have a complete and perfect freedom. 
 [Applause.] Do you mean to "palter with them in a 
 double sense"? Are you willing that the great repub- 
 lic shall cheat these poor negroes, "keeping the word 
 of promise to the ear, and breaking it to the hope".'^ 
 Then, Jiow shall we secure to them a complete and per- 
 fect freedom? The constitution of every slave state 
 is cemented in slavery. Their statute-books are full 
 of slavery. It is the corner-stone of every rebel state. 
 If you allow them to come back at once, without con- 
 dition, into the exercise of all their state functions, 
 what guaranty have you for the complete freedom of 
 the men you have emancipated? There must, there- 
 fore, not merely be an emancipation of the actual, liv- 
 ing slaves, but there must be an abolition of the slave 
 system. [Applause.] Every state must have the abo- 
 lition of slavery in its constitution, or else we must 
 have the amendment of the Constitution ratified by 
 three fourths of the states. Yes, that little railroad- 
 ridden republic, New Jersey, must be shamed into 
 adopting the amendment to the Constitution. [Ap- 
 plause.] New Jersey, whose vote, seventy years ago, 
 alone prevented the adoption of Jefferson's great 
 ordinance, making subsequently acquired territories 
 
THE "GRASP OF WAR" SPEECH 249 
 
 free, and which now stands alone among the free 
 states against this proposition of amendment, must 
 be shamed into its adoption. [Renewed applause.] 
 Louisiana will adopt it before her; Kentucky, perhaps, 
 may adopt it before her. They may come into the 
 kingdom, when the children of the kingdom shut 
 themselves out. [Applause.] 
 
 But, my fellow citizens, is that enough.'^ Is it enough 
 that we have emancipation and abolition upon the 
 statute-books .^^ In some states of society, I should say 
 yes. In ancient times, when the slaves were of the 
 same race with their masters, when the slaves were 
 poets, orators, scholars, ministers of state, merchants, 
 and the mothers of kings, — if they were emancipated, 
 nature came to their aid, and they reached an equality 
 with their masters. Their children became patricians. 
 But, my friends, this is a slavery of race; it is a slav- 
 ery which those white people have been taught, for 
 thirty years, is a divine institution. I ask you, has the 
 Southern heart been fired for thirty years for nothing.'^ 
 Have these doctrines been sown, and no fruit reaped.'^ 
 Have they been taught that the negro is not fit for 
 freedom, have they believed that, and are they con- 
 verted in a day.f^ Besides all that, they look upon the 
 negro as the cause of their defeat and humiliation. I 
 am afraid there is a feeling of hatred toward the negro 
 at the South to-day which has never existed before. 
 
 What are their laws? Why, their laws, many of 
 them, do not allow a free negro to live in their states. 
 When we emancipated the slaves, did we mean they 
 should be banished — is that it.'^ [Voices — "No."] 
 Is that keeping public faith with them.^ And yet their 
 laws declare so, and may declare it again. 
 
 That is not all ! By their laws a black man cannot 
 
250 RICHARD HENRY DANA, JR. 
 
 testify in court; by their laws he cannot hold land; 
 by their laws he cannot vote. Now, we have got to 
 choose between two results. With these four millions 
 of negroes, either you must have four millions of dis- 
 franchised, disarmed, untaught, landless, thriftless, 
 non-producing, non-consuming, degraded men, or else 
 you must have four millions of land-holding, industri- 
 ous, arms-bearing, and voting population. [Loud ap- 
 plause.] Choose between these two! Which will you 
 have? It has got to be decided pretty soon which you 
 will have. The corner-stone of those institutions will 
 not be slavery, in name, but their institutions will be 
 built upon the mud-sills of a debased negro population. 
 Is that public safety .^^ Is it public faith .^ Are those 
 republican ideas or republican institutions.^ Some of 
 these negroes have shed their blood for us upon the 
 public faith. Ah! there are negro parents whose chil- 
 dren have fallen in battle; there are children who lost 
 fathers, and wives who lost husbands, in our cause. 
 Our covenant with the freedman is sealed in blood! 
 It bears the image and superscription of the republic ! 
 Their freedom is a tribute which we must pay, not only 
 to Caesar, but to God ! [Applause.] 
 
 We have a right to require, my friends, that the 
 freedmen of the South shall have the right to hold 
 land. [Applause.] Have we not? We have a right to 
 require that they shall be allowed to testify in the 
 state courts. [Applause.] Have we not? We have a 
 right to demand that they shall bear arms as soldiers 
 in the militia. [Applause.] Have we not? We have a 
 right to demand that there shall be an impartial bal- 
 lot. [Great applause.] 
 
 Now, my friends, let us be frank with one another. 
 On what ground are we going to put our demand for 
 
THE "GRASP OF WAR" SPEECH 251 
 
 the ballot for freedmen? Some persons may say that 
 they will put it upon the ground that every human 
 being has an absolute and unconditional right to vote. 
 There never was any such doctrine ! We do not mean, 
 now, to allow about one half the South to vote. 
 [Applause.] Why not.^ Why, the public safety does 
 not admit of it. [Applause.] We put the condition of 
 loyalty on every vote. [Applause.] How have we done 
 in this state .^ Half the people in this state are ex- 
 cluded from the ballot, — the better half we are fond 
 of calling them; no woman votes. We prescribe con- 
 ditions for the men, — whatever conditions society 
 sees fit; conditions of age; conditions of residence; con- 
 ditions of tax-paying; and lately we have added, by 
 a large popular majority, the further high condition, 
 that they shall have intelligence enough to read and 
 write. [Applause.] Of course there is no such doctrine 
 as that every human being has a right to vote. Soci- 
 ety must settle the right to a vote upon this principle 
 — "The greatest good of the greatest number" must 
 decide it. The greatest good of society must decide it. 
 On what ground, then, do we put it.'' We put it upon 
 the ground that the public safety and the public faith 
 require that there shall be no distinction of color. 
 [Applause.] That is the ground upon which it can 
 stand. 
 
 To introduce the free negroes to the voting franchise 
 is a revolution. // toe do not secure that now, in the 
 time of revolution, it can never be secured, except by a 
 new revolution. [Loud applause.] Do you want, some 
 years hence, to see a new revolution.^ — the poor, op- 
 pressed, degraded black man, bearing patiently his 
 oppression, until he can endure it no longer, rising 
 with arms for his rights — do you want to see that.^^ 
 
252 RICHARD HENRY DANA, JR. 
 
 [Voices' — "No."] Do you want to see them submit for- 
 ever, and 7iot rise for their rights? [Voices — "No."] 
 No, neither, you say. Well, my friends, who cry "no," 
 if either of those things happens, it is our fault. If 
 they never get their rights, or get them by a new revo- 
 lution, it will be, in either event, our fault. Do you 
 wish to have that blame rest upon you.^ [Voices — 
 "No."] No? Then "Now 's the day, and now 's the 
 hour." [Loud applause.] They are in a condition of 
 transition; a condition of revolution; seize the oppor- 
 tunity and make it thorough ! [Renewed and hearty 
 applause.] 
 
 This, then, fellow citizens, is what we have a right to 
 demand. Now comes my third question — How do 
 you propose to accomplish it? We know our powers, 
 we know what we want to do, — how do we propose 
 to do it? First, the right to bear arms, fortunately, 
 does not depend upon the decision of any state. That 
 is a matter which, under the Constitution, depends 
 upon the acts of Congress. Congress makes the militia, 
 and Congress must see to it that the emancipated 
 slaves have the privilege, the dignity, and the power 
 of an arms-bearing population. But the right to ac- 
 quire a homestead, the right to testify in courts, the 
 right to vote, by the Constitution, depend, not only 
 in spirit, but in the letter, upon the state constitu- 
 tions. The right to vote in national elections depends 
 on state constitutions. What are you going to do 
 about it? 
 
 You find the answer in my first proposition. We 
 are in a state of war. We are exercising war powers. 
 We hold each state in the grasp of war until the state 
 does what we have a right to require of her. [Applause.] 
 Do you say this is coercion? Certainly it is. War is 
 
THE "GRASP OF WAR" SPEECH 253 
 
 coercion, and this is part of the war. We have a mili- 
 tary occupation. What is the effect of that.^ I appeal 
 to the learned in the law of nations; I appeal to an 
 authority that has spoken to you words of wisdom 
 this morning [turning to Professor Parsons], whether 
 it is not a principle of war that when the conquering 
 party has a military occupation of the country, the 
 political relations of its citizens are suspended thereby? 
 That is true : suspended; I do not say destroyed. 
 
 Let no man say that I overlook the distinction be- 
 tween a civil or domestic war and a war between re- 
 cognized nations. My duties and studies and thoughts 
 have kept my attention upon that. We have not been 
 putting down an insurrection of professed citizens. 
 We have fought against an empire unlawfully estab- 
 lished within the limits of this republic — a completed 
 de facto government, perfected in all its parts; and if 
 we had not destroyed it by war, it would have re- 
 mained and stood a completed government. It stood 
 or fell, on the issues of war. Nothing but war has 
 destroyed it. 
 
 This de facto empire had possession of that whole 
 country. Why, from the Potomac to the Rio Grande, 
 we had not one fort ; not one arsenal ; not a court-house 
 nor a custom-house, nor a light-house, nor a post-office, 
 nor a single magistrate, nor a spot on which he could 
 stand. They had forts, arsenals, light-houses, custom- 
 houses, courts, post-offices, magistrates, and were in 
 complete possession. It happened — it happened — 
 that those people preserved their state lines — did not 
 obliterate them; but they might have done so. It hap- 
 pened that they did not change their constitutions, 
 but they might have done it. They might have re- 
 solved themselves into a consolidated republic, or a 
 
254 RICHARD HENRY DANA, JR. 
 
 monarchy. They did as they chose. Under such cir- 
 cumstances, if the parent government is not strong 
 enough to hold possession of the country, and a hos- 
 tile, de facto government is established upon it, the 
 parent government proportionately loses its claims to 
 allegiance, for the time. Certainly it does — not ab- 
 solutely, but for the time. 
 
 What follows from all this.^ from a war fought over 
 the continent and over every ocean, — their priva- 
 teers vexing our commerce at the antipodes ; we fight- 
 ing the battles of the republic in the mouth of the 
 British Channel [applause] ; and over this w^hole vast 
 republic, south of the Potomac and the Ohio, 
 
 "Every turf beneath your feet 
 Has been a soldier's sepulchre." 
 
 If such a war leaves this people just as they were be- 
 fore; if no corresponding rights and powers have ac- 
 crued to us, then I say it has been the most vast and 
 bloody and cruel nullity that the world ever saw. It 
 is not so. We have a right now and a duty to execute 
 those powers which belong to the condition of war. 
 The political relations of these people to their state 
 governments are suspended. Military occupation 
 exists, and the republic governs them by powers de- 
 rived from war. You look in vain to the Constitution 
 to point out what shall be done. The war is constitu- 
 tional; but the consequences, powers and duties, arise 
 out of the nature of things. The Constitution may dis- 
 tribute functions, but all the powers which the Presi- 
 dent or Congress hold, or both, and are exercising, are 
 derived from the condition of war. 
 
 I ask, again, how shall we obtain what we have a 
 right to acquire? The changes we require are changes 
 of their constitutions, are they not.^^ The changes must 
 
THE "GRASP OF WAR" SPEECH Q55 
 
 be fundamental. The people are remitted to their 
 original powers. They must meet in conventions and 
 form constitutions, and those constitutions must be 
 satisfactory to the republic. [Loud applause.] 
 
 I desire at this point to say a word with reference to 
 President Johnson and his course, to which I ask your 
 special attention. When President Johnson called the 
 people of North Carolina and one or two other states 
 together, he did not call the blacks as well as the whites 
 to the ballot. That was a question of process, which 
 requires great discretion and wisdom. The President 
 and his Cabinet knew a great deal more about the de- 
 tails, and means, and probable results, than we do. I 
 believe President Johnson has the same end in view 
 that we have here to-day. [Applause.] He has his own 
 mode of reaching it. Some may ask, Why did he not 
 ask the blacks to vote.^ I know nothing, personally, of 
 his reasons; but I can easily see that two embarrass- 
 ments might well beset him. They occur to us all, at 
 once. 
 
 The people of those states are to vote for the pur- 
 pose of making their organic law. President Johnson 
 holds them by military power. Is it not a very serious 
 thing, in a republican government, to dictate from the 
 cannon's mouth the organic law for a great people.^ I 
 do not ask what we have a right to do — that is not 
 the question. The question is. What ought we to do. ^^ 
 I do not wonder that a man educated in republican 
 principles hesitates to dictate, as military superior, 
 who should vote in determining the organic law of a 
 people. He took the voters as they stood before the 
 war; he put the test of loyalty to them; he took securi- 
 ties against them; he went no further. That we may 
 well suppose was one of his reasons. 
 
256 RICHARD HENRY DANA, JR. 
 
 We can easily suppose another. Take the whole 
 black population. Shall I say to you, my friends, to- 
 day, for the first time, that slavery is a beneficent, 
 effective educational system.^ If I say it, will you be- 
 lieve it.^ Will you think me sane.^ Have we not all 
 said, and thought, and fought because we believed 
 that slavery degraded and brutalized its victims.^ If 
 a man requires us to say that the four millions of 
 slaves have not been debased and brutalized by slav- 
 ery, he requires us to unsay all we have said and be- 
 lieved and fought for and prayed for, the last thirty 
 years. Slavery has degraded the negroes. It has kept 
 them ignorant and debased. It has not, thank God, 
 destroyed them. The germ of moral and intellectual 
 life has survived; and we mean to see to it that they 
 are built up into a self-governing, voting, intelligent 
 population. [Applause.] They are not that to-day. 
 They will become so quicker than you think. They do 
 not need half the care nor half the patronage we used 
 to think they did. And the ballot is a part of our edu- 
 cating and elevating process. 
 
 There are various courses, all seeming to lead to one 
 point. From these, President Johnson has chosen to 
 make an experimental, tentative trial of one. On a 
 question of means and processes, he has declined to 
 clothe the negroes, by an exercise of military power, 
 with the right to vote. True, he has by military power 
 applied a test of loyalty to the voters. But that is a 
 very mild and a necessary exercise of military power. 
 No man, I believe, questions the necessity and fitness 
 of that act. But it is a far different thing to speak a 
 whole nation of voters into existence — not for tem- 
 porary, but for permanent and fundamental objects 
 — by a stroke of his pen, or rather, I should say, by 
 
THE "GRASP OF WAR" SPEECH 257 
 
 the uplifted sword. His rule has not been to interfere 
 as far as he could, but to accomplish his ends with the 
 least possible interference. 
 
 One step further. Suppose the states do not do 
 what we require — what then? I have not heard that 
 question answered yet. Suppose President Johnson's 
 experiment in North Carolina and Mississippi fails, 
 and the white men are determined to keep the black 
 men down — what then.'^ Mr. President, I hope we 
 shall never be called upon to answer, practically, that 
 question. It remits us to an ultimate, and, you may 
 say, a fearful proposition. But if we come to it, though 
 I desire to consider myself the humblest of the persons 
 here, I, for one, am prepared with an answer. I believe 
 that if you come to the ultimate right of the thing, the 
 ultimate law of the case, it is this: that this war — no, 
 not the war, the victory in the war — places, not the 
 person, not the life, not the private property of the 
 rebels — they are governed by other considerations 
 and rules — I do not speak of them — hut the apolitical 
 systems of the rebel states, at the discretion of the repiih- 
 lic. [Great applause.] Secession does not do this. 
 Treason does not do this. The existence of civil war 
 does not do this. It is the necessary result of con- 
 quest, with military occupation, in a war of such 
 dimensions, such a character, and such consequences 
 as this. 
 
 You say that it is a fearful proposition. But be not 
 alarmed. Most political action is discretionary, — 
 all that is fundamental and organic is so. Discretion 
 has its laws, and even its necessities. Still, I know it 
 is a fearful proposition. But is not war a fearful fact.? 
 If this is a fearful theory, is it not the legitimate fruit 
 of a terrific fact, the war? If they have sown the wind, 
 
258 RICHARD HENRY DANA, JR. 
 
 must they not expect to reap the whirlwind? War, my 
 friends, is an appeal from the force of law to the law 
 of force. I declare it a proposition that does not ad- 
 mit of doubt in wars between nations, that when a 
 conqueror has obtained military possession of his ene- 
 my's country, it is in his discretion whether he shall 
 permit the political institutions to go on and treat 
 with them, or shall obliterate them and annex the 
 country to his own dominions. That is the law of war 
 between nations. Is it applicable to us.^^ I think it is. 
 [Applause.] I think, if you come to the ultimate right 
 of the thing, we may, if we choose, take the position 
 that their political institutions are at the discretion of 
 the republic. 
 
 When a man accepts a challenge to a duel, what 
 does he put at stake .^^ He puts his life at stake, does he 
 not.^ And is it not childish, after the fatal shot is 
 fired, to exclaim, "Oh, death and widowhood and or- 
 phanage are fearful things!" They were all involved 
 in that accepted challenge. When a nation allows it- 
 self to be at war, or when a people make war, they put 
 at stake their national existence. [Applause.] That 
 result seldom follows, because the nation that is get- 
 ting the worst of the contest makes its peace in time; 
 because the conquering nation does not always desire 
 to incorporate hostile subjects in its dominions; be- 
 cause neutral nations intervene. The conqueror must 
 choose between two courses — to permit the political 
 institutions, the body politic, to go on, and treat with 
 it, or obliterate it. We have destroyed and obliterated 
 their central government. Its existence was treason. 
 As to their states, we mean to adhere to the first 
 course. We mean to say the states shall remain, with 
 new constitutions, new systems. We do not mean to 
 
THE "GRASP OF WAR" SPEECH 259 
 
 exercise sovereign civil jurisdiction over them in our 
 Congress. Fellow citizens, it is not merely out of ten- 
 derness to them; it would be the most dangerous pos- 
 sible course for us. Our system is a planetary system; 
 each planet revolving round its orbit, and all round a 
 common sun. This system is held together by a bal- 
 ance of powers — centripetal and centrifugal forces. 
 We have established a wise balance of forces. Let not 
 that balance be destroyed. If we should undertake to 
 exercise sovereign civil jurisdiction over those states, 
 it would be as great a peril to our system as it would be 
 a hardship upon them. We must not, we will not un- 
 dertake it, except as the last resort of the thinking and 
 the good — as the ultimate final remedy, when all 
 others have failed. 
 
 I know, fellow citizens, it is much more popular to 
 stir up the feelings of a public audience by violent lan- 
 guage than it is to repress them; but on this subject we 
 must think wisely. We have never been willing to try 
 the experiment of a consolidated democratic republic. 
 Our system is a system of states, with central power; 
 and in that system is our safety. [Applause.] State 
 rights, I maintain; State sovereignty we have de- 
 stroyed. [Applause.] Therefore, although I say that, 
 if we are driven to the last resort, we may adopt this 
 final remedy ; yet wisdom, humanity, regard for demo- 
 cratic principles, common discretion, require that we 
 should follow the course we are now following. Let 
 the states make their own constitutions, but the con- 
 stitutions must be satisfactory to the Republic [ap- 
 plause], and — ending as I began — by a power which 
 I think is beyond question, the Republic holds them 
 in the grasp of war until they have made such con- 
 stitutions. [Loud applause.] 
 
260 RICHARD HENRY DANA, JR. 
 
 The Faneuil Hall Address 
 
 [Omitting portions that appear in almost the same 
 language in Mr. Dana's speech.] 
 
 To THE People of the United States: — 
 
 In pursuance of the custom of the American people 
 to confer freely with one another in times of civil 
 emergency, and the example of our own ancestors to 
 speak to their fellow citizens from this place, we have 
 been commissioned by the citizens this day assembled 
 in Faneuil Hall to address you upon the state of pub- 
 lic affairs. 
 
 We claim no peculiar right to be heard, even by 
 reason of the sacredness of the spot from which we 
 speak; but the greatness of the exigency, the critical 
 questions your representatives in Congress will soon 
 be required to meet, and the singular unanimity 
 which appears among the patriotic people in this por- 
 tion of our land, lead us to hope for your attention 
 and consideration. 
 
 To remove obstructions which we know may be 
 artfully thrown in the way, we wish to say to you in 
 advance — as matter of honor between citizens — 
 that this meeting and this address have not been 
 prompted by any organization, or by any purpose 
 of party or personal politics. They are the sponta- 
 neous expression of the convictions of men in earnest, 
 who have differed much in times past, and may be 
 separated again in their political action, but who are 
 forced to a common opinion on the present exigency 
 of affairs. 
 
 It may be fairly said that three ideas had complete 
 possession of Southern society, — Slavery, Aristo- 
 
THE "GRASP OF WAR" SPEECH 261 
 
 cracy, and State Supremacy. Upon these, they carried 
 on their political warfare, until 1860. On these, they 
 founded their empire in 1861. On these, and for these, 
 they have waged against the Republic for four years 
 a war of stupendous proportions. 
 
 That we may understand the character of this 
 antagonistic force, with which we have now to deal 
 politically, we ask you to remember what they accom- 
 plished. They made no insurrection of professed citi- 
 zens for a redress of grievances. They made no revo- 
 lution or civil war within an admitted sovereignty. 
 They set up a distinct and independent sovereignty, 
 within the territory of the Republic. This extended 
 over eleven states, and we hardly saved our capital; 
 while in the states of Maryland, Kentucky', and Mis- 
 souri, the most the nation obtained at first was a de- 
 claration of sovereign neutrality. Looking at the fact, 
 and not at right or law, we must remember that the 
 rebellion drove out from its usurped borders every 
 representative and obliterated every sign of Federal 
 authority, possessed every foot of ground, and estab- 
 lished and put in operation a central government, com- 
 pleted in all its parts, legislative, executive, and judi- 
 cial. 
 
 In the course of a war of four years, for the restora- 
 tion of the Republic, we must not forget that not one 
 place surrendered from political considerations. There 
 were individual deserters, but not a regiment laid 
 down its arms from motives of returning loyalty. 
 They fought to the last, — as bitterly at last as ever, 
 — and were surrendered by their commanders only 
 when there was no other resource. It was by force that 
 their government was broken down. It is by force that 
 
262 RICHARD HENRY DANA, JR. 
 
 the territory they held is now in our military occupa- 
 tion. . . . The purpose of the South now is to resume 
 the exercise of state functions with the utmost pos- 
 sible speed, and with the least possible change in their 
 home-systems. To secure that, they will do and sub- 
 mit to whatever is necessary. It must constantly be 
 borne in mind that when once a state is admitted to 
 its place, the power of the nation over all subjects of 
 state cognizance is gone. If the dogma of State Su- 
 premacy is not destroyed, for practice as well as in 
 theory, the war will have been in vain. It has not only 
 been the favorite weapon of slavery, but has been 
 eagerly caught up by the enemies of our institutions 
 in Europe, — the tenet that the United States is not 
 a nation, a government, a sovereignty, — that the 
 citizens owe to it no direct allegiance, — that they 
 cannot commit against it the crime of treason, if they 
 carry with them into their treason the forms of state 
 authority. The right of this republic to be a sovereign, 
 among the sovereignties of the earth, must be put beyond 
 future dispute, abroad as well as at home. We have paid 
 the fearful price, and we must not be defrauded of the 
 results. 
 
 Let us now, fellow citizens, look at the dangers 
 which attend an immediate restoration of the rebel 
 states to the exercise of full state authority. Slavery 
 is the law of every rebel state. In some of these 
 states free persons of color are not permitted to reside; 
 in none of them have they the right to testify in court, 
 or to be educated, in few of them to hold land, and in 
 all of them they are totally disfranchised. But, far 
 beyond the letter of the law, the spirit of the people 
 and the habits of generations are such as to insure the 
 permanence of that state of things, in substance. 
 
THE "GRASP OF WAR" SPEECH 263 
 
 We trust it cannot be necessary to pause here and 
 refute a political fallacy, which the logic of events has 
 already exposed. It has been contended that, forcible 
 resistance having ceased, the rebel states are, hy that 
 fact, again in their orbits, and in the rightful pos- 
 session and exercise of all their functions as states, in 
 local and national affairs, just as if no war had taken 
 place, — that the nation, whether by Congress or the 
 Executive, has no option to exercise, no powers or 
 rights to enforce, no conditions that it can make. We 
 trust that the mere statement of this proposition, in 
 the light of the circumstances in which we stand, is 
 a sufficient refutation. We are holding the rebel coun- 
 trj^ in military occupation, and the nation is asserting 
 a right, before it yields that occupation, to see the 
 public safety secured, and the public faith preserved. 
 The only question can be as to the mode of obtaining 
 this result. We trust all loyal people of the land will 
 have no hesitation in standing by the President, with 
 clear convictions, as well as strong purpose, on this 
 issue. By necessity, the Republic must hold and 
 exercise some control over these regions and people 
 until the states are restored to their full functions 
 as states, in national as well as in state affairs. This 
 authority is to be exercised by the President or by 
 Congress, or both, according to the nature of each 
 case. Though resulting, necessarily, from the fact of 
 the war, these powers are not necessarily to be exer- 
 cised by military persons or in military forms. This 
 temporary, provisional authority, although supreme 
 for the time, may be exercised, much of it, by civil 
 officers, using the methods of civil power, and admit- 
 ting the employment of judicial and executive func- 
 tions, with the arts and business and social inter- 
 
264 RICHARD HENRY DANA, JR. 
 
 course of life. This we understand to be, in substance, 
 the position which the government now occupies, and 
 we beHeve the people recognize it to be of necessity 
 and of right. 
 
 Let us now, fellow citizens, turn our attention to 
 our rights and duties. Having succeeded in this war, 
 and holding the rebel states in our military occupa- 
 tion, it is our right and duty to secure ivhatever the public 
 safety and the public faith require. 
 
 First. The principle must be put beyond all ques- 
 tion, that the Republic has a direct claim upon the 
 allegiance of every citizen, from which no state can 
 absolve him, and to his obedience to the laws of the 
 Republic, "anything in the constitution or laws of 
 any state to the contrary notwithstanding." 
 
 Second. The public faith is pledged to every person 
 of color in the rebel states, to secure to them and their 
 posterity forever a complete and veritable freedom. 
 Having promised them this freedom, received their 
 aid on the faith of this promise, and, by a successful 
 war and actual military occupation of the country, 
 having obtained the power to secure the result, we 
 are dishonored if we fail to make it good to them. 
 
 Third. The system of slavery must be abolished 
 and prohibited by paramount and irreversible law. 
 Throughout the rebel states, there must be, in the 
 words of Webster, "impressed upon the soil itself an 
 inability to bear up any but free men." 
 
 Fourth. The systems of the states must be truly 
 "republican." 
 
 Unless these points are secured, the public faith will 
 be broken, and there will be no safety for the public 
 peace or the preservation of our institutions. 
 
 It must be remembered that, under the Constitu- 
 
THE "GRASP OF WAR" SPEECH 265 
 
 tion, most of these subjects are entirely matters of 
 state jurisdiction. Once withdraw the powers of war, 
 and admit a state to its full functions, and the author- 
 ity of the nation over these subjects is gone. It is a 
 state function to determine who shall hold land, who 
 shall testify in state courts, who shall be educated, and 
 how, who shall labor, and how, and under what con- 
 tracts or obligations and how enforced, and who shall 
 vote in national as well as in state elections. We have 
 already said that all these points now stand in the con- 
 stitutions and laws of the rebel states decided against 
 the freedmen. Action is necessary to put them right. 
 So great a change is, no doubt, fundamental, and goes 
 to the bottom of their social and political system. If 
 it is not made now, before civil society becomes set- 
 tled, before the states are restored to the exercise of 
 all their powers, it will never be made, in all human 
 probability, by peaceful means. 
 
 The question now occurs. How are these results to 
 be secured, before those states are permitted to resume 
 their functions.^ We agree that these results ought to 
 be secured in conformity with what may be called the 
 American System, — that upon which and for which 
 our Constitution was made. This is a system of sepa- 
 rate states, each with separate functions, constituted 
 by the people of each, and self-governing within its 
 sphere, with a central state constituted by the people 
 of all, supreme within its sphere and the final judge 
 of its sphere and functions. The President recognizes 
 the importance of proceeding in accordance with this 
 system. He aims at a restoration of the states, by 
 the people of the states, without resort to the exer- 
 cise of sovereign legislative jurisdiction over them by 
 the general government. In this we offer to him our 
 
266 RICHARD HENRY DANA, JR. 
 
 sympathy, as we ask for him an intelligent support. 
 But inasmuch as once restored the state will be be- 
 yond our reach, the utmost care must be taken to 
 avoid a hasty and unsatisfactory restoration. We 
 acknowledge that there may be dangers in protracted 
 and extensive military occupation. But we believe 
 that the people are willing to incur their share of these 
 perils. We believe the people feel that the greatest 
 hazard is in premature restoration fraught with future 
 danger. Any restoration would be dangerous which 
 did not secure, beyond all reasonable peril, the abo- 
 lition of slavery, actual freedom, just rights to the 
 free, and, within each state, "a republican form of 
 government." 
 
 The President and his Cabinet, we have every rea- 
 son to believe, have these results in view. We cannot 
 doubt that Congress will refuse to receive any state 
 upon any other terms. If there are any members of 
 Congress whose fidelity on these points is doubtful, 
 we implore you to exercise over them all the just au- 
 thority and influence of constituents. 
 
 We advance no extreme or refined theory as to what 
 may be included within the term "a republican form 
 of government." In the exercises of the extraordinary 
 prerogative of the General Government to determine 
 whether a state constitution is "republican," there 
 must be practical wisdom and no refined theories. If 
 the constitutions with which the rebel states now 
 come are not "republican," in such a reasonable and 
 practical sense as nations act upon — if they are so 
 far unrepublican as to endanger public peace and the 
 stability of our institutions, then we may treat them 
 as not "republican" in the American sense of the term. 
 
 What, then, is the character of their present con- 
 
THE "GRASP OF WAR" SPEECH 267 
 
 stitutions, assuming that slavery is prohibited? Here 
 presents itself no question of mere principle or theory, 
 but facts of an overruling and decisive character. 
 From one third to one half of their free population 
 are absolutely and forever not only disfranchised, but 
 deprived of all the usual rights of citizens in a re- 
 public. Not only so, but this disfranchisement is per- 
 petual, hereditary, and insurmountable. It is more 
 deeply seated than Oriental caste. It clings to each 
 man and his posterity forever, if there be a traceable 
 thread of African descent. No achievements in war 
 or peace, no acquisitions of property, no education, 
 no mental power or culture, no merits, can overcome 
 it. To make the case worse, these people are not 
 only disfranchised, but the temper, spirit, and habits 
 of the ruling class, the only class partaking of civil 
 authority, will keep them not only disfranchised, 
 but uneducated, without land, without the right to 
 testify, and without the means of protecting their 
 formal freedom. The result has been, and must ever 
 be, that the system is essentially and practically oli- 
 garchal, in such a sense as actually and seriously to 
 endanger the public peace and the success of our 
 republican institutions. 
 
 Attempts are made to embarrass the subject by 
 referring to several of the free states, whose consti- 
 tutions restrict free blacks in the exercise of some of 
 the usual rights of citizens. But these are not prac- 
 tical questions before the country. The General Gov- 
 ernment has no present cognizance of those questions 
 in those states. Besides, as we have said, the exer- 
 cise of this extraordinary authority must be upon 
 practical and reasonable grounds, and not on mere 
 theory. The partial disfranchisement of people of 
 
268 RICHARD HENRY DANA, JR. 
 
 color in those states we regard as one of the subtle 
 effects of the slave-power in our politics, which we 
 hope to see pass away with its cause. The number of 
 persons whom it bears upon is so small, the effect 
 upon them so slight, and such the state of society, 
 and the habits and feelings of the people, that the 
 substantial character of those states as "republican" 
 is not sensibly affected. Departures from principle, 
 however small, must always be regretted; but in the 
 vast and critical affairs of nations, slight aberrations 
 from exact principles are constantly occurring, and 
 are constantly submitted to and allowed for, in funda- 
 mental institutions, as well as in occasional practice. 
 The case of the rebel states is vastly and absolutely 
 different. It presents a question of a false principle 
 organized and brought into action, with vast dimen- 
 sions, having already created one war, and all but de- 
 stroyed the Republic, and ever threatening danger 
 hereafter. We can hardly think it in good faith that 
 the effort is made to deter the nation from confront- 
 ing this vast peril, over which it has present and 
 necessary jurisdiction, by invoking these slight cases 
 found remaining in loyal states, over which the nation 
 has no present cognizance, and from which it has 
 nothing to fear. 
 
 We do not ask that the nation shall insist on an un- 
 conditioned, universal suffrage. We admit that states 
 determine for themselves the principles upon which 
 they will act, in the restrictions and conditions they 
 place upon suffrage. All the states make restrictions 
 of age, sex, and residence, and often annex other con- 
 ditions operating in substance equally upon all, and 
 reasonably attainable by all. Those matters lie within 
 the region of advice from neighbors, and not of na- 
 
THE "GRASP OF WAR" SPEECH 269 
 
 tional authority. We speak only to the point where 
 the national authority comes in. We cannot require 
 the rebel states, if we treat them as states, to adopt a 
 system for the sole reason that we think it right. Of 
 that, each state, acting as a state, must be the judge. 
 But in the situation in which the rebel states now are, 
 the nation can insist upon what is necessary to public 
 safety and peace. And we declare it to be our belief 
 that if the nation admits a rebel state to its full func- 
 tions with a constitution which does not secure to 
 the freedmen the right of suffrage in such manner as 
 to be impartial and not based in principle upon color, 
 and as to be reasonably attainable by intelligence and 
 character, and which does not place in their hands a 
 substantial power to defend their rights as citizens at 
 the ballot-box, with the right to be educated, to ac- 
 quire homesteads, and to testify in courts, the nation 
 will be recreant to its duty to itself and to them, 
 and will incur and deserve to incur danger and re- 
 proach proportioned to the magnitude of its respon- 
 sibility. 
 
 It should not be forgotten that, slavery being abol- 
 ished, and therewith the three-fifths rule of the Con- 
 stitution, nearly two millions will be added to the 
 representative population of the slave states in the 
 apportionment for members of Congress and of votes 
 in presidential elections, and that this increase of po- 
 litical power to the rebel states must be at the expense 
 of the free states. If the freedmen remain, as they now 
 are, disfranchised, this increased power will be wielded 
 by a class of voters smaller in proportion than before. 
 This furnishes an additional temptation to that class 
 to retain it in their hands; and we shall be compelled 
 to meet, as heretofore, the old spirit, not improved by 
 
270 RICHARD HENRY DANA, JR. 
 
 its recent experience, and largely increased in its 
 political power. 
 
 As we speak from a free state, it may be suggested 
 that we are not so good judges of what should be done 
 for the colored people of the South as those who have 
 been brought up among them. It does not follow that 
 those who have been brought up under an abuse are 
 the best judges whether it shall be continued, or of 
 what shall be substituted in its place. The people of 
 the North have seen the colored races acting as free 
 men under free institutions, which the people of the 
 South have not. They who have known the man of 
 color only as a slave before his master, or sometimes 
 as a disfranchised free man under a slave system em- 
 bracing his race, are not the only nor necessarily the 
 best qualified class to give an opinion as to what he 
 may do or what should be done for him as a free man, 
 under free systems. History teaches us that national 
 emancipations do not emanate from the masters. And 
 wherever emancipation has seemed to disappoint ex- 
 pectations, the difficulties are traceable, in large meas- 
 ures, to persistent and multiform counteractions by 
 the late master-class. 
 
 Appeals may be made to taste or pride, on the sub- 
 ject of the social equality of the people of color. We 
 must not permit our opinions to be warped by such 
 considerations. The present question is strictly one of 
 political justice and safety, and not of social equality. 
 When the free man of color, educated in the common 
 schools, deposits a vote which he can write himself, 
 gives a deposition which he can read and sign, and 
 pays a tax on the homestead he has bought, the law 
 forces no comparisons between his intellectual, moral, 
 physical, or social condition, and that of the white cit- 
 
THE "GRASP OF WAR" SPEECH 271 
 
 izen, of whatever race or nation, who lives, votes, or 
 testifies by his side. 
 
 The President has undertaken, in certain of the rebel 
 states, an experiment for speedy restoration. Recog- 
 nizing the general policy and duty of restoration as 
 soon as practicable, the experiment commands our 
 earnest wishes for its success. By its success we mean 
 — not the return of the states to their position ; that 
 they are only too ready to do; but their return ivith 
 constitutions in which the public safety and public faith 
 shall he secured. We cannot conceal our apprehensions 
 that the experiment will fail. But let not the Republic 
 fail ! The more recent signs are that the spirit which 
 caused the war is preparing to fight over politically 
 the ground it has lost in battle. This ought not to sur - 
 prise us. Let no haste to restore a state, no fear of 
 rebel dissatisfaction, lead the Republic to compromise 
 its safety or its honor! 
 
 During the progress towards restoration, the nation 
 holds the states in military occupation, by powers 
 resulting necessarily from successful war. This hold 
 upon them is to be continued until this or some other 
 experiment does succeed. We need not be precipitate. 
 The present authority, although resulting from war, 
 may, as we have said, be largely exercised by civil 
 methods and civil functionaries, and be accompanied 
 with the enjoyment of many civil rights and local 
 municipal institutions, executive and judicial. If the 
 present experiment fails, we may try the experiment 
 of building by the people from the foundation, by 
 means of municipal institutions of towns and counties, 
 with the aid of education, commerce and immigration, 
 a new spirit being infused and the people becoming 
 accommodated to their new relations, and so advance 
 gradually to complete restoration. 
 
272 RICHARD HENRY DANA, JR. 
 
 This is but one suggestion. Various methods are 
 open to us. Only let it be understood that there is no 
 point at which the rebels can defy, 'politically, any more 
 than they could in war, the authority of the Republic. 
 The end the nation has in view is the same as that for 
 which the war was accepted and prosecuted, — the 
 restoration of the states to their legitimate relations tvith 
 the Republic. The condition of things calls for no limi- 
 tations of time or methods. By whatever course of 
 reasoning it may be reached, upon whatever doctrine 
 of public law it may rest, however long may be the 
 interval of waiting, and whatever may be the process 
 resorted to, the friends and enemies of the Republic 
 should alike understand that it has the powers and 
 will use the means to ensure a final restoration of 
 the States, with constitutions which are republican, 
 and with provisions that shall secure the public safety 
 and the public faith. 
 
XII 
 THE PRIZE CAUSES 
 
 [Beginning with the earhest months of the Civil War, the 
 United States estabUshed a blockade of the Confederate ports, 
 and captured as prizes blockade-runners of neutrals, and also ves- 
 sels belonging to citizens residing in the seceding states. 
 
 Early in the war, England and other powers recognized the 
 belligerency of both North and South, and it was feared that 
 both England and France were on the point of recognizing the 
 independence of the Confederate States. In order to prevent the 
 latter, and to emphasize our right of denial of secession, both 
 President Lincoln and his Secretary of State Mr. Seward had, in 
 proclamations and official correspondence, spoken of the whole 
 affair as a mere suppression of a local insurrection of citizens, 
 and ignored that it was a war. At first, too, there had been much 
 opposition in the Northern States to the recognition of belliger- 
 ency by England and France, because, in the popular mind, it 
 had been somewhat confused with, or at least held as being a 
 sort of, recognition of independence. 
 
 By well-known principles of international law, blockade and 
 prize could only be resorted to in case of war with an existing 
 power, not in a mere suppression of a local insurrection of citizens. 
 To keep up the blockade and capture and condemn blockade- 
 runners was essential to the suppression of the rebellion. With- 
 out these powers, conflict might be indefinitely prolonged, with 
 greatly increased chances of success for the Confederacy. 
 
 The owners of the vessels captured as prizes brought suit in 
 the Federal Courts, claiming the vessels back on the ground 
 that their capture was illegal, contending that there was no war, 
 but only a local insurrection. These suits were appealed to the 
 United States Supreme Court. Mr. Dana, as United States 
 
274 RICHARD HENRY DANA, JR. 
 
 District Attorney for the District of Massachusetts, to which 
 district some of the prizes were brought, argued these cases for 
 the government, both in the lower court and in the Supreme 
 Court. 
 
 Here was a dilemma, and how was Mr. Dana to meet it? How 
 did he meet it? He reasoned out the philosophy of war and 
 showed that war was a process of coercion, and that blockade and 
 prize were recognized powers of coercion allowed by the law of 
 nations in a war. Having shown this, he emphatically recognized 
 that a mere suppression of a local insurrection of citizens was not 
 a war in this sense, and that to make it a war, it must be against 
 an existing nation; but he went on to prove that, though the na- 
 tion against which we were contending must be an existing one, 
 or, in legal language, a de facto nation, it was not necessary that 
 we should recognize its independence, or that its existence was 
 lawful, or, technically speaking, that it was a de jure nation. He 
 also turned the recognition of belligerency by foreign nations into 
 what it really was, though not generally understood to be, — 
 an acquiescence in our rights to these disputed war powers. 
 
 The argument by which Mr. Dana enforced these views is, by 
 tradition of the Bench and Bar to this day, one of the greatest 
 arguments, none greater, before the Supreme Court of the 
 United States. He convinced the entire court. To appreciate the 
 task Mr. Dana had before him, the reader should be reminded 
 that, out of a court of nine judges, six were democrats, with a 
 strong leaning towards the doctrine of state supremacy, and 
 three of these were appointed from slave-holding states. The 
 opinion of the court not only unanimously sustained Mr. Dana's 
 contention of the right of prize, and based the opinion on Mr. 
 Dana's argument, but also clearly stated Mr. Dana's points, that 
 to make it a war, it was enough that the nation against which we 
 were fighting was a de facto one, that it need not be one de jure, 
 nor need its independence be recognized. Up to that time, our 
 government had been performing the difiicult and somewhat con- 
 tradictory task of carrying on a war, when blockade, contraband 
 and prize were considered ; but only suppressing a local insurrec- 
 tion of citizens, when neutrality or recognition of independence 
 
THE PRIZE CAUSES 275 
 
 by foreign powers or right of secession was considered. After the 
 decision of the Supreme Court in 1863 on the Prize Causes, it was 
 no longer necessary to carry on this inconsistent, double-deahng 
 poHcy. The decision of the court had done away with any such 
 necessity, and had officially committed us to the fact of a war, 
 and a great war. 
 
 While Mr. Dana's argument and the decision of the court made 
 all this clear, the public was slow to take in the changed point of 
 view, and Mr. Dana, in order to clear up the misunderstandings 
 that arose, issued a pamphlet, entitled, "Enemy's Territory and 
 Alien Enemies: What the Supreme Court decided in the Prize 
 Causes." This is published here. There is also the brief, both 
 separately printed, and published with extracts from his argu- 
 ment with the decision of the court in the second volume of 
 Black's United States Supreme Court Reports. ^ To the lay 
 reader, I may ex])lain that a brief is rather dull reading. It is 
 made up of short, condensed statements of the chief points, fol- 
 lowed by citations of authority by name, book and page, in sup- 
 port of these points.^ 
 
 But, oh, for the argument! Verily, the lawyer's fame is writ 
 in water! Mr. Adams tells in the Life^ the complimentary re- 
 marks made by the judges privately, and also publicly stated 
 by Judge Greer on reading the opinion, and by members of the 
 bar who were present. But the argument, with all its power of 
 illustration, force of logic, clear statement, philosophy and elo- 
 quence, except as a tradition, has died with the death of those 
 who heard it. 
 
 The pamphlet called "Enemy's Territory" touches a special 
 branch of the Prize Causes. That branch has nothing to do with 
 the capture of blockade-runners. It is related only to the cap- 
 ture at sea, wherever found, of vessels belonging to citizens 
 
 ^ 2 Black, 635. Mr. Dana's brief and summary of argument, pp. 
 650—665. The opinion of the court, pp. 665—682. 
 
 ^ For further consideration of the same questions involved, and the 
 popular misunderstanding of these Prize Causes, see Note to " Grasp 
 of War " speech, supra. 
 
 ^ Vol. ii, pp. 266-270. 
 
276 RICHARD HENRY DANA, JR. 
 
 residing in the "enemy's territory." The prize law allows such 
 captures only in case the territory is "enemy's territory." 
 
 Now, when he took the stand that the territory (Richmond, 
 in the case of the Amy Warwick) was enemy's, he seemed to be 
 admitting that it was territory rightfully belonging to the enemy. 
 In the general use of language, that would be the case. To il- 
 lustrate, — if, in a suit between myself and B as to the owner- 
 ship of a lot in the possession of B, I had in previous conver- 
 sation called it "B's lot," that would be admissible evidence 
 to show that I had acknowledged that it rightfully belonged 
 to B ; but, to apply the analogy to the prize law, in order to get 
 the lot back from B by process of court and secure a certain 
 writ, I have to show that B is in possession and that I am not 
 able to get the lot by peaceable means; and, one step further, 
 to make the parallel complete, let us suppose that the process 
 by which I, the plaintiff, am to get the lot out of the possession 
 of B, the defendant, requires me to call it the "defendant's lot." 
 In that case, it would be clear enough from the context that I 
 am not admitting that it was B's lot as of right, otherwise 
 I would not be taking out the process; but that I admit only 
 that it was B's for the time being by forcible possession, which 
 possession B is intending to keep as long as he can. 
 
 Just so in the branch of prize law that allows capture of ves- 
 sels of citizens in enemy's territory, the process, that is, the 
 capture and condemnation, requires the government to show 
 that the territory is in complete forcible control of the enemy. 
 The phrase in the process is "enemy's territory." That process 
 however, in the Civil War, was but a part of the proceedings by 
 which the United States sought to get the territory back into its 
 possession from out of the possession of those holding it by force. 
 
 There was, no doubt, considerable confusion in the public 
 mind, as always arises when common phrases are used in any 
 science in a restricted or unusual sense; but in addition to that, 
 it must be remembered that there were many persons in the North, 
 and still more in European countries, whose sympathies with 
 the South induced them to make such use of the decision of the 
 Supreme Court as would mislead people into thinking that that 
 
THE PRIZE CAUSES 277 
 
 decision had acknowledged the independence of the Confeder- 
 acy and the right of secession; and this necessitated the publi- 
 cation of the pamphlet on this special branch of the prize law.] 
 
 Enemy's Territory and Alien Enemies 
 What the Supreme Court decided in the Prize Causes 
 
 Mr. William Beach Lawrence has written a 
 letter to a foreign journal ("The Law Magazine," 
 London, November, 1863), in which he says of the 
 decision of the Supreme Court of the United States, 
 in the prize causes last winter, — "What was some- 
 what at variance with the views of those who had 
 heretofore denied the right of secession, it recognized 
 the war as made by the States in their political 
 capacities, and, as a corollary therefrom, declared all 
 the inhabitants of the seceded States, on account of 
 their residence and without regard to their individ- 
 ual locality, alien enemies." 
 
 My purpose is to show that this is not a correct 
 statement of the decision. It is now reported in 2 
 Black's Reports, and it will be found that the Court 
 made no such recognition, followed no such corollary, 
 announced no such declaration, and arrived at no 
 such result. 
 
 This misconception of the decision has not been 
 confined to Mr. Lawrence and the advocates of a state 
 right of secession. Prominent men, advocating far 
 different doctrines, seem to have looked at the de- 
 cision in the same light. It has been vouched in to aid 
 various theories; but all under the impression that it 
 decides that the political relation of the inhabitants 
 of the insurgent states to the General Government is 
 that of alien enemies, and that the territory covered 
 
278 RICHARD HENRY DANA, JR. 
 
 by those states is, in law, no more than enemy's ter- 
 ritory. It has, therefore, seemed to me not a super- 
 fluous task, on an issue so vital and pressing, to en- 
 deavor to explain the prize decisions, on that point, 
 to persons who may not have studied the principles 
 upon which they rest. And I make the attempt with 
 the more confidence because, as the opinion of the 
 Court supposes in its readers a knowledge of the 
 phraseology and principles of the laws of war, an en- 
 deavor to give it a popular explanation is not super- 
 erogatory. Neither is it unnatural that the general 
 reader should be misled by the terms used, and by 
 the form of the reasoning, for prize law has its tech- 
 nical terms, and the end to which some of the reason- 
 ing is addressed is not apparent without a knowledge 
 of the whole ground. I do not purpose to go further 
 than the Court, and discuss the ultimate question, — 
 what is the relation of those states, as bodies politic, 
 or of their inhabitants, to the General Government, 
 or to offer any opinion of my own in aid of a solution 
 of that question. I confine myself to the humbler, 
 but I think important task, of offering a popular ex- 
 planation of the decision of the Court. 
 
 The Supreme Court decided that the established 
 rule of international war respecting "enemy's pro- 
 perty" is applicable to such an internal contest as 
 that in which we are now engaged. This was the 
 extent of the decision on that point: and in this the 
 Court was unanimous. 
 
 What is the rule of international war respecting 
 "enemy's property"? It is sufficient for the present 
 purpose to state it thus: If a person is domiciled in 
 enemy's territory, his property, found on the high 
 seas, is subject to capture. It is immaterial what 
 
THE PRIZE CAUSES 279 
 
 may be the civil or political status of that person, as 
 regards the government of the capturing power. He 
 may be an alien enemy. He may be a neutral — per- 
 haps a consul of a neutral power. He may be a loyal 
 citizen of the capturing power, with an involuntary 
 domicile in the enemy's territory. When the Court 
 condemns his property, it is because of the situation 
 or predicament of the property, and not because of 
 the moral animus or political status of its owner. It 
 is called "enemy's property"; but that is a technical 
 phrase of prize law. It does not imply anything as to 
 the legal, political status of the owner. One of the 
 earliest condemnations of "enemy's property" in the 
 war of 1812, was of the property of an American citi- 
 zen, who happened to be domiciled in Liverpool, for 
 commercial purposes, when the war broke out and 
 the capture was made. {The Venus, 8 Cranch, 253.) 
 A student of international law can easily suppose 
 cases where the property even of the President him- 
 self, in that war, might have been condemned by us 
 as "enemy's property." 
 
 It may be useful, in this connection, to refer to the 
 reasons upon which this rule rests, as aiding to a bet- 
 ter understanding of the rule itself. The reasons are, 
 that property, in certain situations, is so placed that 
 the hostile power, whom the war is intended to coerce, 
 has an interest in its existence, transit, or arrival, 
 and the capturing power a corresponding interest to 
 deprive the enemy of that advantage. In this con- 
 flict of interests, the consent of nations authorizes 
 the strongest to take the property, if it is found at 
 sea. One of the facts which puts property in this 
 predicament is that the owner of it is himself domi- 
 ciled in the enemy's territory, and therefore he and 
 
280 RICHARD HENRY DANA, JR. 
 
 his property are subject to the unlimited power of 
 the enemy, to his taxation, his exactions, his confis- 
 cations, forced contributions, and use of all kinds, 
 with or without compensation. As the power of the 
 enemy over the property of the inhabitants of his 
 territory does not depend on their political status, 
 and may even be increased by their being hostile to 
 him, so neither does the right of the belligerent to 
 intercept and take such property depend on those 
 considerations. It is at the discretion of political 
 power to forego the condemnation, if the owner is 
 known to be a loyal subject, having an involuntary 
 domicile with the enemy, or to condemn the property 
 and remunerate the owner after the war is over, or 
 to make no remuneration. As a judicial question, 
 the Prize Court can only decide that the property 
 is lawful prize. 
 
 The Supreme Court applied this rule to our pre- 
 sent war. They held that the property of a person 
 domiciled in enemy's territory was subject to cap- 
 ture, as a question of law, it being a political question 
 whether that right of capture should be enforced. It 
 was immaterial, in domestic war as in foreign war, 
 whether the owner, so domiciled, be a rebel citizen or 
 a loyal citizen, a foreigner aiding the rebellion volun- 
 tarily or involuntarily or not aiding it at all, or 
 a loyal citizen having an involuntary domicile there. 
 The Court decided absolutely nothing as to the legal 
 or political status of the owner in relation to our own 
 government. To guard against a mistake which 
 might arise from the use of the term "enemy's pro- 
 perty," the Court expressly says that "enemy's pro- 
 perty" is "a technical term peculiar to Prize Courts." 
 And again, "Whether property be liable to capture 
 
THE PRIZE CAUSES 281 
 
 as 'enemy's property,' does not in any manner de- 
 pend on the personal allegiance of the owner. It is 
 of no consequence whether it belongs to an ally or a 
 citizen." (Prize Cases, 2 Black, 674.) As Chief Jus- 
 tice Marshall said, it is "a hostile character impressed 
 on the property," from its predicament or situation, 
 that gives it that name. And as Judge Story said, of 
 property of a citizen found engaged in trade with the 
 enemy, "it is the illegal trafiic that stamps it as 'en- 
 emy's property.'" 
 
 It is further necessary to inquire how the Court 
 treated the question of "enemy's territory," resi- 
 dence of the owner in which renders the property at 
 sea liable to capture. Here, again, the Court simply 
 applied to our contest the admitted rule of interna- 
 tional law. What is that rule.^^ It is sufficient for the 
 present purpose to say that a certain kind and degree 
 of possession by the enemy, and the exercise of a 
 de facto jurisdiction over a region, render it, for the 
 purposes of war and of the prize law, "enemy's ter- 
 ritory." Whether a place is, in the meaning of the 
 prize law, "enemy's territory," is a question of fact. 
 It is not concluded by treaties, statutes, ordinances, or 
 any paper-title. War is an appeal to force, and force 
 settles the question of enemy's territory for the time. 
 In the war of 1812-14, the peninsula of Castine be- 
 came enemy's territory, within the meaning of the 
 laws of war. If a vessel belonging to a person domi- 
 ciled and actually residing there, at that time, had 
 been taken by one of our cruisers, bound in to that 
 port, our Prize Courts would have condemned it as 
 lawful prize, without deciding or inquiring whether 
 the owner was a British subject, an American citizen, 
 or a neutral. The doctrine of prize of war does not 
 
282 RICHARD HENRY DANA, JR. 
 
 rest on the basis of a penalty on the owner for his per- 
 sonal hostility, actual or implied. It rests on the basis 
 of the right of one belligerent power to coerce another 
 belligerent poioer by takirig from its control or possibil- 
 ity of use, property and materials of certain descriptions 
 and found in certain predicaments. Forfeitures and 
 Confiscations belong to a distinct branch of law, 
 — to the internal, municipal rules of each country, 
 to its penal or criminal code. We are treating only 
 of the rights and powers of War, to which alone the 
 doctrines of Prize belong. When the British withdrew 
 their occupation of Castine the owner of this pro- 
 perty condemned as "enemy's property," if a citizen 
 of the United States, would have resumed all his rights 
 and duties as such, and no act of the people of Cas- 
 tine, or of the National Government, or of the State 
 Government, would be necessary to establish his 
 status as a citizen, or the status of Castine as part of 
 the State and Nation. 
 
 Now, all that the Supreme Court did in respect 
 to the proposition of "enemy's territory," was to 
 apply the rules of international war to our contest, 
 so far as the law of prize was concerned. The owners 
 of the vessels and their cargoes had their domicile 
 and actual residence in Richmond, Virginia, and 
 Richmond was, at the time of the capture and ad- 
 judication, so far in the possession, and under such 
 control and de facto jurisdiction of enemies of the 
 United States, as to render it, at that time, within 
 the meaning of prize law, "enemy's territory." 
 
 That result was not owing to state lines, secession 
 ordinances, or any other conventional acts of states 
 or people. It was a question of de facto forcible oc- 
 cupation. Richmond would have been pronounced 
 
THE PRIZE CAUSES 283 
 
 *' enemy's territory," and this property condemned 
 as "enemy's property," equally as well, if Virginia 
 had never passed an ordinance of secession. And 
 conversely, if Richmond had been regained into our 
 possession, it would not have been decreed "enemy's 
 territory," with all its secession ordinance, nor could 
 this property have been decreed "enemy's property." 
 When a prize court, sitting under the laws of war, 
 decides that a certain region is enemy's territory, for 
 the purposes of prize law, it does not necessarily 
 predicate anything, affirmatively or negatively, as 
 to the civil or political relations of that region or of 
 its inhabitants with the enemy's government, or with 
 its own. 
 
 To guard against a possible mistake arising from 
 the use of the phrase "enemy's territory," Judge 
 Grier strikingly says, "it has a boundary marked by 
 lines of bayonets, and which can be crossed only by 
 force. South of this line is enemy's territory, because 
 it is claimed and held in possession by an organized, 
 hostile and belligerent power." The reason why it is 
 enemy's territory for the time being, and for pur- 
 poses of prize, is not its ordinances of secession, or 
 any legislation, valid or invalid, of the states, or any 
 legal effects of rebellion on the region or its inhabit- 
 ants, — but ^"because it is claimed and held by an 
 organized, hostile, and belligerent poiver." It is im- 
 material whether that organized, hostile, belligerent 
 power has used the state machinery or not; whether 
 it claims to be the several states, or a new body poli- 
 tic; whether it is composed solely of citizens, or solely 
 of invading aliens, or of both. It is enough that it is 
 such an organized force as to raise its acts to the dig- 
 nity of war, and that the proper political department 
 
284 RICHARD HENRY DANA, JR. 
 
 of our government has treated it as war, and applied 
 to it the rights and powers of maritime capture. 
 
 The boundary of enemy's territory is, then, a vary- 
 ing Hue, depending on de facto condition, and not on 
 the enemy's legislation, valid or invalid. What kind 
 and degree of possession is necessary to constitute a 
 region "enemy's territory," for the purposes of the 
 law of prize, the Court did not think necessary to de- 
 cide, for the possession the enemy had of Richmond 
 was sufficient to satisfy any possible definition. (If 
 the reader desires to investigate the question of the 
 kind and degree of possession by the enemy which 
 will make a region "enemy's territory" for the time 
 being, he will find nearly all the law on the subject 
 in the case of The Gerasimo, in 11 Moore's Pr. Coun- 
 cil Reports.) 
 
 The case which presented the naked question of 
 enemy's property was the Amy Warwick. This was 
 first adjudicated by Judge Sprague; and in his opin- 
 ion, he sets forth the doctrine and its reasons, and 
 says that the judgment does not "go beyond the fact 
 of permanent residence," and takes pains to pre- 
 clude any inference that the decision affects the ex- 
 isting or future political relations of the territory or 
 its inhabitants with the General Government or the 
 State. {The Amy Warwick, 24 Law Reporter, 335, 
 494.) 
 
 At the argument of the prize causes on appeal, the 
 counsel for the United States adopted a line of argu- 
 ment intended to satisfy the Court that such were 
 the reasons on which rested the rules of war touching 
 enemy's property, that those rules could be appHed 
 to an internal war without the necessity of predi- 
 cating anything as to the political relations of the 
 
THE PRIZE CAUSES 285 
 
 owners or of the place of their residence towards the 
 General Government. ^ 
 
 It was wittily said, by a distinguished member of 
 Congress, that the Supreme Court had decided that 
 two of their number were alien enemies. I refer to 
 this hon mot as a good illustration of an incorrect 
 understanding of the decision. If Mr. Justice Wayne 
 had continued to reside in Savannah, and Savannah 
 continued to be under the control of the enemy, a 
 vessel belonging to Judge Wayne would have been 
 good prize, if the Government chose to treat it as such. 
 But the fact that his property had been so condemned 
 would have no legal effect on his political status under 
 our Government, or on the political status of Georgia 
 or its inhabitants. 
 
 In closing, I offer the following synopsis of what 
 I understand the Court did and did not decide: — 
 
 What the Court did not decide: — 
 
 1. The Court did not decide that the passing of the 
 ordinances of secession made the territory of the in- 
 surgent states enemy's territory, or its inhabitants 
 alien enemies. 
 
 2. The Court did not decide that the passing of 
 the secession ordinances terminated, or in any way 
 affected, the legal relations of the insurgent states, 
 as bodies politic, with the General Government, or 
 the political relations of their inhabitants with the 
 General Government or with their respective states. 
 
 3. The Court decided absolutely nothing as to 
 the effect of the passing of the secession ordinances 
 
 ^ I regret not to find among the arguments for the Government in 
 these causes, in 2 Black's Reports, the admirable argument of Mr. 
 Evarts. His absence from the country on public duty probably pre- 
 vented his preparing a synopsis for the reporter. 
 
286 RICHARD HENRY DANA, JR. 
 
 on the civil or political relations of the inhabitants 
 of the insurgent states with the General Government 
 or with their respective states, or on the relations of 
 the insurgent states, as bodies politic, with the Gen- 
 eral Government. 
 
 4. The Court did not decide that the inhabitants 
 of the seceding states are alien enemies at all, or that 
 the territory of those states is enemy's territory. 
 
 What the Court did decide: — 
 
 1. That in case of domestic war, the Government 
 of the United States may, at its option, use the powers 
 and rights known to the international laws of war as 
 blockade and capture of enemy's property at sea. 
 
 2. That to determine whether property found at 
 sea is "enemy's property," within the meaning of the 
 law of prize, the same tests may be applied in domes- 
 tic as in international wars. 
 
 3. One of those tests is that the owner of the pro- 
 perty so found has his domicile and residence in a place 
 of which the enemy has a certain kind and degree of 
 possession. 
 
 4. Richmond, Virginia, was, at the time of the cap- 
 ture and condemnation of those vessels, under such 
 possession and control of an organized, hostile, bel- 
 ligerent power, as to render it indisputably "enemy's 
 territory," within the strictest definitions known to 
 the laws of war. 
 
 5. That it was immaterial how that organized power 
 came into existence, whether by the use of state ma- 
 chinery or otherwise, or what its political claims or 
 assumptions are, or whether it is composed of rebel 
 citizens, or invading aliens, or both, or whether it 
 professes to recognize state lines. It is enough for 
 the Court that it is waging war, and so recognized 
 
THE PRIZE CAUSES 287 
 
 by the political department of the General Govern- 
 ment, and has the requisite possession of the region 
 in which the owner of the property resides. 
 
 6, That a Court of Prize, in such case, decides in- 
 dependently of all questions as to the political rela- 
 tions of the owner, or of the place of his domicile, wuth 
 the Government of the capturing power. 
 
XIII 
 RUFUS CHOATE 
 
 Remarks at the Meeting of the Suffolk 
 Bar in his Honor 
 
 Mr. Chairman, — By your courtesy, and the cour- 
 tesy of this bar, which never fails, I occupy an earher 
 moment than I should otherwise be entitled to; for 
 the reason that in a few hours I shall be called upon 
 to take a long leave of the bar and of my home. I 
 cannot do that, sir, I cannot do that without rising 
 to say one word of what I know and feel upon this 
 sad loss. 
 
 The pressure which has been upon me in the last 
 few days of my remaining here, has prevented my 
 making that kind of preparation which the example 
 of him whom we commemorate requires of every man 
 about to address a fit audience upon a great subject. 
 I can only speak right on what I do feel and know. 
 
 "The wine of life is drawn." The "golden bowl 
 is broken." The age of miracles has passed. The 
 day of inspiration is over. The Great Conqueror, 
 unseen and irresistible, has broken into our temple 
 and has carried off the vessels of gold, the vessels 
 of silver, the precious stones, the jewels, and the 
 ivory; and, like the priests of the Temple of Jerusa- 
 lem, after the invasion from Babylon, we must con- 
 tent ourselves, as we can, with vessels of wood and 
 of stone and of iron. 
 
 With such broken phrases as these, Mr. Chairman, 
 
RUFUS CHOATE 289 
 
 perhaps not altogether just to the living, we endeavor 
 to express the emotions natural to this hour of our 
 bereavement. Talent, industry, eloquence, and learn- 
 ing there are still, and always will be, at the Bar 
 of Boston. But if I say that the age of miracles has 
 passed, that the day of inspiration is over, — if I 
 cannot realize that in this place where we now are, 
 the cloth of gold was spread, and a banquet set fit 
 for the gods, — I know, sir, you will excuse it. Any 
 one who has lived with him and now survives him, 
 will excuse it, — any one who, like the youth in 
 Wordsworth's ode, 
 
 "by the vision splendid, 
 [s on his way attended, 
 \.t length . . . perceives it die away, 
 And fade into the hght of common day." 
 
 Sir, I speak for myself, — I have no right to speak 
 for others, — but I can truly say, without any ex- 
 aggeration, taking for the moment a simile from that 
 element which he loved as much as I love it, though 
 it rose against his life at last, — that in his presence 
 I felt like the master of a small coasting vessel, that 
 hugs the shore, that has run up under the lee to speak 
 a great homeward-bound Indiaman,i freighted with 
 silks and precious stones, spices and costly fabrics, 
 with sky-sails and studding-sails spread to the breeze, 
 with the nation's flag at her mast-head, navigated 
 by the mysterious science of the fixed stars, and 
 not unprepared with weapons of defence, her decks 
 peopled with men in strange costumes, speaking of 
 strange climes and distant lands. 
 
 All loved him, especially the young. He never 
 
 ' As Mr. Dana originally gave it, it was "a great Spanish galleon." 
 
290 RICHARD HENRY DANA, JR. 
 
 asserted himself, or claimed precedence, to the in- 
 jury of any man's feelings. Who ever knew him to 
 lose temper? Who ever heard from him an unkind 
 word? And this is all the more strange from the fact 
 of his great sensitiveness of temperament. 
 
 His splendid talents as an orator need no commen- 
 dation here. The world knows so much. The world 
 knows perfectly well that juries after juries have re- 
 turned their verdicts for Mr. Choate's clients, and 
 the Court has entered them upon the issues. The 
 world knows how he electrified vast audiences in his 
 more popular addresses; but, sir, the world has not 
 known, though it knows better now than it did, — 
 and the testimony of those better competent than 
 I am will teach it, — that his power here rested not 
 merely nor chiefly upon his eloquence, but rested 
 principally upon his philosophic and dialectic power. 
 He was the greatest master of logic we had amongst 
 us. No man detected a fallacy so quickly, or exposed 
 it so felicitously as he, whether in scientific terms to 
 the bench, or popularly to the jury; and who could 
 play with a fallacy as he could? Ask those venerated 
 men who compose our highest tribunal, with whom 
 all mere rhetoric is worse than wasted when their 
 minds are bent to the single purpose of arriving at 
 the true results of their science, — ask them wherein 
 lay the greatest power of Rufus Choate, and they 
 will tell you it lay in his philosophy, his logic, and 
 his learning. 
 
 He was, sir, in two words, a unique creation. He 
 was a strange product of New England. Benjamin 
 Franklin, John Adams, Samuel Dexter, Daniel Web- 
 ster, and Jeremiah Mason seem to be the natural 
 products of the soil ; but to me this great man always 
 
RUFUS CHOATE 291 
 
 seemed as not having an origin here in New England, 
 but as if, by the side of our wooden buildings, or by 
 the side of our time-enduring granite, there had risen, 
 like an exhalation, some Oriental structure, with the 
 domes and glittering minarets of the Eastern world. 
 Yet, this beautiful fabric, so aerial, was founded upon 
 a rock. We know he digged his foundation deep, and 
 laid it strong and sure. 
 
 I wished to say a word as to his wit, but time would 
 fail me to speak of everything. Yet, without refer- 
 ence to that, all I may say would be too incomplete. 
 His wit did not raise an uproarious laugh, but created 
 an inward and homefelt delight, and took up its abode 
 in your memory. The casual word, the unexpected 
 answer at the corner of the street, the remark whis- 
 pered over the back of his chair while the docket was 
 calling, you repeated to the next man you met, and 
 he to the next, and in a few days it became the anec- 
 dote of the town. When as lawyers we met together, 
 in tedious hours, and sought to entertain ourselves, 
 we found we did better with anecdotes of Mr. Choate 
 than on our own original resources. 
 
 Besides his eloquence, his logical power, and his 
 wit, he possessed deep and varied learning. His learn- 
 ing was accurate, too. He could put his hand on any 
 Massachusetts case as quick as the judge who de- 
 cided it. 
 
 But if I were asked to name that which I regard 
 as his characteristic, — that in which he differed 
 from other learned, logical, and eloquent men of 
 great eminence, — I should say it was his aesthetic 
 nature. 
 
 Even under the excitement of this moment, I 
 should not compare his mind in the point of mere 
 
292 RICHARD HENRY DANA, JR. 
 
 force of understanding (and, indeed, he would not 
 have tolerated such a comparison) with Daniel Web- 
 ster; and yet I think we have a right to say that, in 
 his aesthetic nature, he possessed something to which 
 the minds of Franklin, Adams, Dexter, Mason, and 
 Webster were strangers. 
 
 But I ask pardon of the bar. I am not desirous 
 of making these comparisons. 
 
 I need not say, sir, that Rufus Choate was a great 
 lawyer, a great jurist, and great publicist, but more 
 than all that — and I speak of that which I know — 
 his nature partook strongly of the poetic element. 
 It was not something which he could put on or off, 
 but it was born with him — I will not say died with 
 him, but is translated with him. 
 
 Shakespeare was his great author. I would have 
 defied even the Shakespeare scholar to refer to any 
 passage of Shakespeare that Mr. Choate would not 
 have recognized instantly. Next to Shakespeare, I 
 think I have a right to say he thought that he owed 
 more to Wordsworth than to any other poet. He 
 studied him before it was the fashion, and before his 
 high position had been vindicated. 
 
 Then he was, of course, a great student of Milton, 
 and after that, I think that those poets who gained 
 the affections of his youth, and wrote when he was 
 young, — Byron, Scott, Coleridge, Southey, — had 
 his affections chiefly; though, of course, he read and 
 valued and studied Spenser and Dryden, and, as a 
 satirist and a maker of epigrams, Pope. This love 
 of poetry with him was genuine and true. He read 
 and studied always, not with a view to make orna- 
 ments for his speeches, but because his nature drew 
 him to it. We all know he was a fine Greek and Latin 
 
RUFUS CHOATE 293 
 
 scholar; was accurate; he never made a false quantity. 
 Who ever detected him in a misquotation? He once 
 told me he never allowed a day to go by that he did 
 not write out a translation from some Greek or Latin 
 author. This was one of the means by which he gained 
 his affluence of language. Of Cicero he was a fre- 
 quent student, particularly of his ethical and philo- 
 sophical writings. But Greek was his favorite tongue. 
 
 One word more, sir. It is not so generally known, 
 I suppose, of Mr. Choate, that, certainly during the 
 last ten years of his life, he gave much of his thoughts 
 to those noble and elevating problems which relate 
 to the nature and destiny of man, to the nature of 
 God, to the great hereafter; recognizing, sir, that 
 great truth — so beautifully expressed in his favorite 
 tongue — in sacred writ. To. fxr) ^Xeiroixeva alcjpta — 
 things not seen are eternal. He studied not merely 
 psychology; he knew well the great schools of phi- 
 losophy; he knew well their characteristics, and read 
 their leading men. I suspect he was the first man in 
 this community who read Sir William Hamilton, 
 and Mansell's work on "The Limits of Religious 
 Thought"; and I doubt if the Chairs of Harvard and 
 Yale were more familiar with the English and Ger- 
 man mind, and their views on these great problems, 
 than Mr. Choate. 
 
 He carried his study even into technical theology. 
 He knew its genius and spirit better than many di- 
 vines. He knew in detail the great dogmas of St. 
 Augustine; and he studied and knew John Calvin and 
 Luther. He knew the great principles which lie at 
 the foundation of Catholic theology and institutions, 
 and the theology of the Evangelical school; and he 
 knew and studied the rationalistic writings of the 
 
294 RICHARD HENRY DANA, JR. 
 
 Germans, and was familiar with their theories and 
 characteristics. 
 
 With all those persons whom he met and who he 
 felt, with reasonable confidence, had sufficient eleva- 
 tion to value these subjects, he conversed upon them 
 freely. But beyond this — as to his opinions, his re- 
 sults — I have no right to speak. I only wished to 
 allude to a few of the more prominent of his char- 
 acteristics; and it is peculiarly gratifying to remem- 
 ber, at this moment, that he had the elevation of 
 mind so to lay hold upon the greatest of all subjects. 
 
 I meant to have spoken of his studies of the English 
 prose-writers, among whom Bacon and Burke had 
 his preference. But he read them all, and loved to 
 read them all; from the scholastic stateliness of Mil- 
 ton, warring for the right of expressing thoughts for 
 all ages, to the simplicity of Cowper's Letters. 
 
 But all this is gone for us ! We are never to see him 
 again in the places that knew him. To think that he, 
 of all men, who loved his home so, should have died 
 among strangers! That he, of all men, should have 
 died under a foreign flag ! I can go no further. I can 
 only call upon all to bear witness now, and to the 
 next generation, that he stood before us an example 
 of eminence in science, in erudition, in genius, in 
 taste, — in honor, in generosity, in humanity, — in 
 every liberal sentiment, and every liberal accomplish- 
 ment. 
 
XIV 
 THE MONROE DOCTRINE 
 
 [Mr. Dana's note to Wheaton's "International Law," on the 
 Monroe Doctrine, has been repeatedly reprinted in pamphlet 
 form and referred to in diplomatic correspondence, and quota- 
 tions from it have appeared in the text-books and digests on 
 international law in the very latest editions; but the note itself 
 in full is out of print. Its historical and international importance 
 is great, and the note is, I believe, of lasting value. 
 
 I have added to Mr. Dana's article on the Monroe Doctrine 
 a note carrying it up to the present time, including the occupa- 
 tion of Mexico by the French during our Civil War, the bound- 
 ary dispute between Great Britain and Venezuela, the collection 
 of claims against Venezuela, President Roosevelt's attitude in 
 connection with foreign claims against San Domingo, and the 
 Hague Peace Conference treaties regarding the arbitration of 
 the amounts of foreign claims against a delinquent country.] 
 
 Certain declarations in the annual message of 
 President Monroe of Dec. 2, 1823, relating to for- 
 eign affairs, have become known in history by the 
 compendious phrase, the "Monroe Doctrine." They 
 have been the subject of a good deal of controversy 
 and misunderstanding; and, as they have considerable 
 moral influence among American traditions, it is im- 
 portant that they should be carefully examined in 
 the light of circumstances of the time, and of con- 
 temporaneous and subsequent exposition. 
 
 It will be found that the message contains two 
 declarations, separated widely in the order of the 
 
296 RICHARD HENRY DANA, JR. 
 
 message, and not less so in the circumstances out of 
 which they arose, the state of things to which they 
 were to be applied, and the principles of public law 
 upon which they depended. Yet these have often 
 been combined, if not confounded, into one doctrine. 
 The first declaration related to new acquisition of 
 sovereign title by European powers over any portions 
 of the American continent, by occupation or colo- 
 nization, as of unoccupied country. It was intro- 
 duced in connection with the unsettled boundaries 
 in the North-west. The second declaration related 
 to interposition by European powers in the internal 
 affairs of American States, and was introduced in 
 connection with the Spanish-American wars of in- 
 dependence. These two declarations require a sepa- 
 rate treatment. I shall take up first that respecting 
 colonization. 
 
 To understand the subject, it is necessary to refer 
 to the state of things at the time of the declaration. 
 The only European powers on the northern conti- 
 nent were Russia and Great Britain; for Spain had, 
 by the treaty of 1819, ceded to the United States all 
 her territory north of the forty-second parallel, and 
 the successful revolution in Mexico had deprived her 
 of the rest. The Czar, by a ukase of 4th September, 
 1821, had asserted exclusive territorial right, from 
 the extreme northern limit of the continent to the 
 fifty -first parallel; while, by the treaty of 1818 be- 
 tween Great Britain and the United States, these 
 two powers had agreed to a joint occupation for ten 
 years of all the country that might be claimed by 
 either on the north-west coast, westward of the Rocky 
 Mountains, without prejudice to the rights or claims 
 of either party. At some future time or other, the 
 
THE MONROE DOCTRINE 297 
 
 boundaries between these powers must be settled; 
 and, in a country situated as that was, it was well 
 known that the sovereign title to most parts of it 
 must depend upon original discovery, exploration, 
 and occupation. In such controversies, it is known 
 to be a question as obscure as it is important, what 
 kind or degree of occupation, and under what cir- 
 cumstances made, is necessary to give exclusive sover- 
 eign jurisdiction. On the north-west coast, the facts 
 of discovery, exploration, and occupation were already 
 in dispute, and the meaning of the terms rendered 
 more doubtful by the Nootka-Sound Convention, 
 of 28th October, 1790, made by Great Britain with 
 Spain, to whose rights in that region the United States 
 succeeded. While Great Britain and the United States 
 had a boundary line to run between themselves, they 
 were yet united against the imperial ukase of 1821. 
 In this position of things, Mr. J. Q. Adams, then 
 Secretary of State, in a letter of July 2, 1823, wrote 
 to Mr. Rush, our Minister at London, inclosing copies 
 of his instructions to Mr. Middleton, our Minister 
 at St. Petersburg, and asking him to confer freely 
 with the British Government upon the subject. In 
 this letter and instructions, Mr. Adams takes the 
 ground that the exclusive rights of Spain to any por- 
 tion of the American continent have ceased, by force 
 of treaties and of successful revolutions. He refers 
 particularly to the burdensome and injurious restric- 
 tions and exclusions which have marked the Euro- 
 pean colonial systems in America, in respect of com- 
 merce, navigation, residence, and the use of rivers 
 for passage, trade, and fishing. He contends that 
 the entire continent is closed against the establish- 
 ment, by any European power, of any such colonial 
 
298 RICHARD HENRY DANA, JR. 
 
 systems hereafter, in any places not now in their 
 actual occupation, because of the sufHcient sover- 
 eign title of the powers already established there 
 to cover the entire continent. He says: "A necessary 
 consequence of this state of things will be, that the 
 American continents henceforth will no longer be 
 subject to colonization. Occupied by civilized na- 
 tions, they will be accessible to Europeans and each 
 other on that footing alone; and the Pacific Ocean, 
 in every part of it, will remain open to the navigation 
 of all nations in like manner with the Atlantic. In- 
 cidental to the condition of national independence 
 and sovereignty, the rights of interior navigation of 
 their rivers will belong to each of the American na- 
 tions within its own territories." In this letter is 
 the germ of that portion of the Monroe Doctrine re- 
 lating to non-colonization. Indeed, its paternity 
 belongs to Mr. Adams. It rests on the assertion that 
 the continent is ''occupied by civilized nations,'" and 
 is "accessible to Europeans and each other on that 
 footing alone." 
 
 When Mr. Rush made known Mr. Adams's letter 
 to the British Cabinet, he asserts that they totally 
 denied the correctness of the position, and that " Great 
 Britain considered the whole of the unoccupied parts 
 of America as being open to her future settlements 
 in like manner as heretofore" ; that is, " by priority 
 of discovery and occupation." 
 
 Four months after this letter. President Monroe, 
 in his annual message, speaking of the North-western 
 Boundary and the proposed arrangements with Great 
 Britain and Russia, uses this language: "In the dis- 
 cussions to which this interest has given rise, and in 
 the arrangements in which they may terminate, the 
 
THE MONROE DOCTRINE 299 
 
 occasion has been judged proper for asserting, as a 
 principle in which the rights and interests of the 
 United States are involved, that the American con- 
 tinents, by the free and independent condition which 
 they have assumed and maintained, are henceforth 
 not to be considered as subjects for future coloniza- 
 tion by any European power." In taking this posi- 
 tion, Mr. Monroe did not intend to establish a new 
 system for America, defensive and exclusive against 
 European powers, but intended only to apply to the 
 state of things in America a recognized principle of 
 public law. The only question can be, whether the 
 state of things in America did or did not, at that time, 
 warrant the application of the principle. In other 
 words, w^as any part of the country so unoccupied 
 and unappropriated by any civilized power as to be 
 open to new acquisition on that ground; or was the 
 w^hole continent so occupied and held as, upon prin- 
 ciples of public law, to exclude the acquisition of sov- 
 ereign title by virtue of subsequent occupation.^ The 
 question presented was, in fact, one of political geo- 
 graphy. 
 
 It is known that neither Great Britain nor Russia 
 assented to the position taken by Mr. Adams, and 
 now publicly announced by the President under his 
 advice; for those powers had plans of extending their 
 colonization and occupation, and contended that 
 portions of the country were still open thereto upon 
 principles of public law. In 1825-26, Mr. Adams, as 
 President, had occasion to explain this declaration 
 by reason of the proposal for the Panama Congress; 
 and, in the debates upon the Panama mission, the 
 subject was fully discussed. The Congress at Panama 
 was proposed by the Spanish-American States, whose 
 
300 RICHARD HENRY DANA, JR. 
 
 independence the United States had acknowledged, 
 but who were still nominally at war with Spain. Their 
 purpose was to form an alliance among the American 
 States for self-defence, for the maintenance of peace 
 upon the continent, and to settle some principles of 
 public law to govern their relation with each other. 
 The United States was invited to take part in the 
 Congress; and the proposal was w^ell received by 
 President Adams and Mr. Clay, his Secretary of State. 
 Among the measures to be adopted by the Congress, 
 the following was officially announced by Colombia, 
 then the leading Spanish-American power: "To take 
 into consideration the means of making effectual the 
 declaration of the President of the United States re- 
 specting any ulterior design of a foreign power to 
 colonize any portion of this continent, and also the 
 means of resisting all interference from abroad with 
 the domestic concerns of the American governments." 
 A strong opposition arose in Congress to the Panama 
 mission, and Mr. Adams offered an explanation of its 
 probable results. In his special message to the Senate 
 of Dec. 26, 1825, he says: "An agreement between 
 all the parties represented at the meeting, that each 
 will guard by its own means against the establishment 
 of any future European colony within its borders, 
 may be found advisable. This was more than two 
 years since announced by my predecessor, as a prin- 
 ciple resulting from the emancipation of both the 
 American continents." Again, in his message to the 
 House of Representatives, of March 26, 1826, refer- 
 ring to this doctrine of non-colonization in Mr. Mon- 
 roe's message of 1823, he says: "The principle had 
 first been assumed in the negotiation with Russia. It 
 rested upon a course of reasoning equally simple and 
 
THE MONROE DOCTRINE 301 
 
 conclusive. With the exception of the existing Euro- 
 pean colonies, which it was in nowise intended to 
 disturb, the two continents consisted of several 
 sovereign and independent nations, whose territories 
 covered their ivhole surface. By this their independent 
 condition, the United States enjoyed the right of 
 commercial intercourse with every part of their pos- 
 sessions. To attempt the establishment of a colony 
 in those possessions would be to usurp, to the exclu- 
 sion of others, a commercial intercourse which was 
 the common possession of all." 
 
 The Spanish-American States had appeared to 
 understand Mr. Monroe's message as "a pledge," 
 by the United States, to the other American States, 
 of mutual support in maintaining this doctrine; and 
 to consider the United States bound to join with them 
 in some alliance, offensive and defensive, for that 
 purpose. Congress was unwilling to adopt the policy 
 of entangling alliances. A resolution of the House 
 of Representatives declared that the United States 
 "ought not to become parties with the Spanish- 
 American republics, or either of them, to any joint 
 declaration for the purpose of preventing the inter- 
 ference of any of the European powers with their 
 independence or form of government, or to any com- 
 pact for the purpose of preventing colonization upon 
 the continents of America; but that the people of the 
 United States should be left free to act, in any crisis, 
 in such a manner as their feelings of friendship to- 
 wards these republics, and as their own honor and 
 policy may at the time dictate." 
 
 The Senate confirmed the appointment of two 
 commissioners for the Panama Congress, and the 
 House of Representatives voted the appropriations; 
 
802 RICHARD HENRY DANA, JR. 
 
 but, owing to the death of one commissioner and 
 the delay of the other, the United States was not 
 represented at the first session of the Congress, and 
 a second session was never held. This was owing in 
 part to the disturbed condition of the Spanish-Ameri- 
 can States, but more to their disappointment at the 
 attitude of the United States. Whatever view the ad- 
 ministration of Mr. Adams may first have taken, and 
 however popular the proposal of the mission may 
 have been at first, it is certain that the administration 
 at last came to a narrow limitation of the project; 
 and the public judgment soon settled upon an oppo- 
 sition to the entire scheme. The opposition in Con- 
 gress successfully contended, that, if the Panama 
 meeting amounted to anything, it would tend to es- 
 tablish on this continent, in the interests of republi- 
 canism, the same kind of system which had been 
 established in Europe in the interests of despotism, 
 and that the United States would necessarily be its 
 protector, and the party responsible to the world; 
 while the Spanish-American States would get the bene- 
 fits of a system of mutual protection which the United 
 States did not need. 
 
 In criticising Mr. Adams's language in his message 
 of December 26, — "Each shall guard, hy its own means, 
 against the establishment of any future European 
 colony within its borders,'' which, he says, was the 
 principle announced by his predecessor, — it is often 
 said that he reduced this branch of the Monroe Doc- 
 trine to insignificance, as this is no more than States 
 will naturally and necessarily do, without compact. 
 But this is not a correct or sufficient view of the sub- 
 ject. Mr. Monroe had equally assumed, in 1823, 
 that a sovereign State would not permit other sov- 
 
THE MONROE DOCTRINE 303 
 
 ereign States to appropriate its territory by coloniza- 
 tion. On that assumption, he declared simply the 
 fact, that the whole continent was within the territory 
 of some responsible State, and not feroB naturw, and 
 so open to appropriation. It was this fact that was, 
 at the time, disputed by European powers. Mr. Mon- 
 roe did not declare or intimate, directly or indirectly, 
 a policy — what the United States would do if a Eu- 
 ropean power should attempt colonization within 
 what he claimed to be our territory; still less, what 
 we would do if a European power should attempt it 
 in what we held to be the territory of some other 
 American sovereign State. Our action, in either event, 
 was left to be determined upon when the case should 
 arise. When, therefore, the administration and Con- 
 gress refused to make any compact, or commit the 
 government in advance by pledge or understanding, 
 to any system of cooperation in a future contingency, 
 they did not abandon or qualify Mr. Monroe's posi- 
 tion. The proper view, therefore, of Mr. Adams's 
 proposal is, that each State represented at the Con- 
 gress should make, for itself, the declaration which 
 Mr. Monroe made for the United States in 1823, — 
 that is, that its territories were not open to appropria- 
 tion by colonization, — and pledge itself to resist any 
 attempts in that direction. Even this proposal, simple 
 and inefficient as it seemed, was objected to, as liable 
 to be construed into an implied pledge of assistance 
 to any State that should be driven to war to main- 
 tain it. 
 
 Mr. Everett, in his speech, said: "On one of these 
 points, — the resistance to colonization, — when the 
 southern republics shall become fully informed of 
 the position of the United States in reference to that 
 
304 RICHARD HENRY DANA, JR. 
 
 question, most assuredly they will withdraw the wish, 
 if they now entertain it, to enter into an alliance with 
 us." Mr. Webster said: "We have a general interest, 
 that, through all the vast territories rescued from 
 the dominion of Spain, our commerce may find its 
 way, protected by treaties with governments existing 
 on the spot. These views, and others of a similar char- 
 acter, render it highly desirable to us that these new 
 States should settle it, as a part of their policy, not 
 to allow colonization within their respective territo- 
 ries. True indeed, we do not need their aid to assist 
 us in maintaining such a course for ourselves ; but we 
 have an interest in their assertion and their support 
 of the principle as applicable to their own territories." 
 Mr. Clay, then Secretary of State, in his despatch 
 of March 25, 1825, to Mr. Poinsett, our Minister to 
 Mexico, referring to Mr. Monroe's declaration re- 
 specting colonization, says: "Whatever foundation 
 may have existed three centuries ago, or even at a 
 later period, when all this continent was under Eu- 
 ropean subjection, for the establishment of a rule, 
 founded on priority of discovery and occupation, 
 for apportioning among the powers of Europe parts 
 of this continent, none can now be admitted as ap- 
 plicable to its present condition. There is no dispo- 
 sition to disturb the colonial possessions, as they now 
 exist, of any of the European powers; but it is against 
 the establishment of new European colonies upon 
 this continent, that this principle is directed. The 
 countries in which any such new establishments 
 might be attempted, are now open to the enterprise 
 and commerce of all Americans; and the justice or 
 propriety cannot be recognized of arbitrarily limiting 
 and circumscribing that enterprise and commerce 
 
THE MONROE DOCTRINE 305 
 
 by the act of voluntarily planting a new colony, with- 
 out the consent of America, under the auspices of 
 foreign powers belonging to another and a distant 
 continent. Europe would be indignant at an attempt 
 to plant a colony on any part of her shores ; and her 
 justice must perceive, in the rule contended for, only 
 perfect reciprocity." 
 
 President Polk, in his annual message to Congress, 
 of Dec. 2, 1845, after dealing with the Oregon bound- 
 ary question, and defending the annexation of Texas, 
 and protesting against any possible interposition 
 of European powers to prevent it, seeks to bring into 
 service this portion of the Monroe Doctrine. Quoting 
 the passage respecting colonization, he says: "In 
 the existing circumstances of the world, the present 
 is deemed a proper occasion to reiterate and re-affirm 
 the principle avowed by Mr. Monroe, and to state 
 my cordial concurrence in its wisdom and sound 
 policy. Existing rights of every European nation 
 should be respected: but it is due alike to our safety 
 and our interests that the efficient protection of our 
 laws should be extended over our whole territorial 
 limits; and that it should be distinctly announced to 
 the world as our settled policy, that no future Euro- 
 pean colony or dominion shall, with our consent, be 
 planted or established on any part of the North- 
 American continent." It will be seen that Mr. Polk 
 quotes no part of Mr. Monroe's message except the 
 single paragraph relating to colonization. Professedly 
 re-affirming that, he states a broader and very dif- 
 ferent doctrine; namely, not only that the continent 
 is not open to colonization, but that no European 
 "dominion" shall be "established" with our consent 
 on any part of the North-American continent. This 
 
306 RICHARD HENRY DANA, JR. 
 
 doctrine of Mr. Polk would require our consent to 
 any acquisition of dominion by a European power, 
 whether by voluntary cession or transfer, or by con- 
 quest. 
 
 Toward the close of the Mexican war, on the 29th 
 April, 1848, Mr. Polk sent a special message to Con- 
 gress on the subject of Yucatan. He represented that 
 country as suffering severely from an insurrection 
 of the native Indians, and as having offered to trans- 
 fer to the United States "the dominion and sover- 
 eignty of the peninsula," if we would give them ma- 
 terial aid in suppressing the insurrection. He added 
 that they had applied also to Great Britain and Spain ; 
 and expressed the opinion, that, if we did not accept 
 the offer, Yucatan might pass under the control of 
 one of those powers. He then refers to the Monroe 
 Doctrine as opposed to the transfer of American 
 territory to any European power, and to the exten- 
 sion of their system to this hemisphere; quotes his 
 own message of Dec. 2, 1845 (cited above); and 
 recommends Congress to take measures to prevent 
 Yucatan becoming a European colony, which, he 
 says, "in no event could be permitted by the United 
 States." A bill was immediately introduced into the 
 Senate, authorizing the raising of an additional mil- 
 itary force to enable the President to "take tempo- 
 rary military possession" of Yucatan, and to aid its 
 people against the Indians. A motion was made to 
 amend the bill so as to change entirely the charac- 
 ter of the proposed step. The amendment was upon 
 the theory that Yucatan might be treated by us as 
 a part of the republic of Mexico, and occupied by 
 us as part of our war against that power. This was 
 supported by Mr. Jefferson Davis ; but the adminis- 
 
THE MONROE DOCTRINE 307 
 
 tration party generally, led by Mr. Cass and Mr. 
 Hannegan, favored the original bill, and supported 
 it on the ground of preventing by anticipation a new 
 European dependency. The opposition resisted both 
 schemes throughout. While the discussion was going 
 on, news arrived of a treaty between the Indians and 
 whites in Yucatan; and the project of taking posses- 
 sion was abandoned. During this debate, Mr. Cal- 
 houn made a speech upon the Monroe Doctrine, sig- 
 nificant from the fact that he was a leading member 
 of Mr. Monroe's Cabinet at the time of the mes- 
 sage, and at this time the only survivor. He gave the 
 history of the declaration respecting foreign inter- 
 position in American affairs, now well known, and 
 referred to hereafter; its origin in the attempt to ex- 
 tend the arm of the Holy Alliance over Spanish Amer- 
 ica; and states that the subject was gravely consid- 
 ered by the Cabinet, on receiving from Mr. Rush Mr. 
 Canning's proposal, and that the language in which 
 the declaration was couched was carefully weighed 
 and agreed upon by the entire Cabinet. These are 
 the passages at the close of the message, in connec- 
 tion with the affairs of Spanish America, relating 
 to attempts of the European powers to extend their 
 system over this hemisphere, and interpositions to 
 oppress or control the destiny of any American State. 
 As to the paragraph relating to colonization, intro- 
 duced into the early part of the message, in connec- 
 tion with the British and Russian boundaries, Mr. 
 Calhoun says that was not submitted to the Cabinet, 
 and formed no part of the principle they intended 
 to announce; but was a disconnected position taken 
 by Mr. Adams, in the negotiations under his sole 
 charge with Russia and England, which the President 
 
308 RICHARD HENRY DANA, JR. 
 
 introduced into his message, by Mr. Adams's advice, 
 in that connection. Mr. Calhoun treated it as Hmited 
 to acquisitions of sovereignty over unoccupied re- 
 gions of country by virtue of prior colonization, and 
 as having no relation to such transfers of acknow- 
 ledged sovereign territory as may be made by co- 
 ercion or voluntary agreement between civilized 
 nations. He says: "The word 'colonization' has a 
 specific meaning. It means the establishment of a 
 settlement, by emigrants from the parent country, 
 in a territory either uninhabited, or from which the 
 inhabitants have been partially or wholly expelled." 
 No doubt, the same objections existed against new 
 foreign dominions, however they might be derived; 
 but the paragraph only declared against deriving 
 dominion from colonization, as not admissible in the 
 condition which the continent had reached. As to 
 the other and more general doctrine of opposition to 
 European intervention, Mr. Calhoun took the ground 
 which had been taken in the Panama discussion, and 
 which the opposition was then holding in the case 
 before the Senate, — that the United States was 
 under no pledge to intervene against intervention, 
 but was to act in each case as policy and justice re- 
 quired; and that, in this case, there was no proof of 
 a danger of actual transfer to a European power, or 
 if there were, that the object was important enough 
 to us to warrant our intervention. 
 
 At the time Mr. Calhoun made this speech, as has 
 been said, neither Mr. Adams nor Mr. Monroe was 
 living; but Mr. Calhoun referred back to his speech 
 on the Oregon question, where he says he made the 
 statement that the clause respecting colonization was 
 not submitted to the Cabinet. "I stated it in order 
 
THE MONROE DOCTRINE 309 
 
 that Mr. Adams might have an opportunity of deny- 
 ing it, or asserting the real state of the facts. He 
 remained silent; and I presume that my statement is 
 correct." (Calhoun's Works, iv, 454.) Mr. Calhoun's 
 statement derives confirmation also from the fact 
 that this subject of colonization is not noticed in the 
 correspondence, hereafter cited, between Mr. Monroe 
 and Mr. Jefferson, to whom the subject of a declara- 
 tion had been referred by Mr. Monroe. 
 
 In explanation of this movement respecting Yuca- 
 tan, and the attempt to invoke, in its aid, the 
 popularity of the Monroe Doctrine, it should be re- 
 membered that the slave-power had obtained an 
 ascendency in the counsels of the nation; that Mr. 
 Polk's administration was devoted to its interests; 
 and that its purpose was to add slave States to the 
 Union by extending our territory southward, and, 
 eventually, by the acquisition of Cuba. It was not 
 politic, with reference to its Northern adherents, to 
 avow the motive; and its movements were made 
 under the color of preventing foreign intervention or 
 the acquisition of foreign dominion, and under the 
 sanction of a popular tradition. Mr. Calhoun not 
 only saw that the Monroe Doctrine was perverted, 
 but believed that the cause of slavery extension 
 would be perilled by involving the country in foreign 
 complications in its behalf, on novel and doubtful 
 principles. 
 
 A careful examination of this history, from the first 
 letters of Mr. Adams to Mr. Rush and Mr. Middle- 
 ton, in 1823, to the close of the Yucatan debate, will 
 show that the general object of Mr. Adams was to 
 prevent the establishment on this continent of new 
 colonial dependencies of European powers. These 
 
310 RICHARD HENRY DANA, JR. 
 
 were objectionable by reason of the restrictions and 
 exclusions on commerce and navigation which, to 
 that time, formed part of the European colonial sys- 
 tems, especially when such colonies lay at the mouth 
 of a river occupied above by American colonies, or 
 the converse; and by reason of the totally different 
 political systems of which they would become a part, 
 as distant from our own in principle as in geographic 
 space. It was not necessary to declare that one State 
 shall not appropriate by colonization part of the re- 
 cognized territory of another State. That would be 
 an act of war, the world over. It was not necessary 
 to take the new and peculiar position, that, if any 
 parts of this continent were lying ferce naturce and 
 beyond the recognized limits of a civilized State, they 
 still should be closed to the colonization of any but 
 the independent States of this continent: excluding 
 not only European States unconnected with the con- 
 tinent, but those that now had possessions here. Mr. 
 Adams thought the end could be attained by declar- 
 ing that no part of the continent was in that condi- 
 tion; that it was all, in his own words, "occupied by 
 civilized nations," and "accessible to Europeans and 
 each other on that footing alone." It will be seen that 
 this declaration has ceased to be of much consequence, 
 as no doubt can now be made that such is the present 
 condition of the continent. By treaties and long pos- 
 session, the boundaries of the continent have been 
 adjusted, among the American States and the pre- 
 viously existing foreign colonies, upon the theory of 
 including all parts of the continent within the do- 
 main of a recognized State, from the Polar Seas to 
 the Straits of Magellan. If any portion of an Ameri- 
 can State should hereafter become a foreign depend- 
 
THE MONROE DOCTRINE 311 
 
 ency, it must be as a result of coercion or of volun- 
 tary compact, and not by virtue of title founded on 
 appropriation by recent primary occupation. 
 
 In the debates in the Senate of the United States 
 in 1855-56, on the construction to be given to the 
 Clayton-Bulwer treaty of 1850, there was some dis- 
 cussion as to the effect of the phrase "occupy and 
 colonize." That treaty, which was intended to se- 
 cure an inter-oceanic transit across the Isthmus, and, 
 for that purpose, to maintain the neutrality of the 
 region in use, contained this clause: "The govern- 
 ments of the United States and Great Britain hereby 
 declare, that neither one nor the other will ever oc- 
 cupy or fortify or colonize, or assume or exercise any 
 dominion over, Nicaragua, Costa Rica, the Mosquito 
 coast, or any part of Central America; nor will either 
 make use of any protection which either affords or 
 may afford, or any alliance which either has or may 
 have to or with any State or people, for the purpose 
 of erecting or maintaining any such fortifications, or 
 of occupying, fortifying, or colonizing Nicaragua, 
 Costa Rica, the Mosquito coast, or any part of Cen- 
 tral America, or of assuming or exercising dominion 
 over the same." The British Government took the 
 position that this clause related only to future acts, 
 and did not embrace places in their possession at the 
 time the treaty was made. This construction was 
 rejected by the United States. The words "fortify 
 or colonize, or assume . . . dominion over," doubt- 
 less look solely to the future. The word "occupy" 
 may be ambiguous. It has, in the Law of Nations, a 
 technical sense, derived from the Roman law, signi- 
 fying the taking original possession of anything not 
 at the time in possession, and therefore open to ap- 
 
312 RICHARD HENRY DANA, JR. 
 
 proprlation, — as of animals jer(B naturce, or of things 
 derelict, &c.; and, when applied to territory, signify- 
 ing the acquisition of sovereign title by original occu- 
 pation of a place not at the time within the occupa- 
 tion and jurisdiction of a recognized sovereignty. 
 But, in its general and popular sense, it signifies merely 
 the act or condition of possessing: as successive ten- 
 ants are said to occupy a house, or a military force a 
 town. In the former sense, the word would be limited 
 to future acts; while, in the latter sense, it would 
 not. But the American argument did not rest on the 
 character of one word, but on the sense of the entire 
 clause, especially as colored by the words "exercise 
 dominion." 
 
 We now proceed to examine that distinct branch 
 of the Monroe Doctrine which relates to European 
 intervention in American affairs. 
 
 The result of the congresses at Laybach and Verona 
 was an alliance of Russia, Prussia, Austria, and France ; 
 the ostensible object of which was to preserve the 
 peace of Europe, and to put down conspiracies against 
 established power, consecrated rights, and social 
 order: but, as the allies acknowledged no legitimate 
 basis of right and order except the existing heredi- 
 tary sovereign houses of Europe, the practical result 
 was a combination of forces against all changes in 
 the direction of liberal institutions not voluntarily 
 made by the sovereigns. In accordance with the 
 spirit of this alliance, the movements for free con- 
 stitutions in 1821 in Spain, Naples, and Piedmont 
 were put down by armed intervention, and absolutism 
 re-instated. At this time, the Spanish colonies in 
 America, after years of warfare, had substantially 
 secured their independence, which had been recog- 
 
THE MONROE DOCTRINE 313 
 
 nized by the United States; but Spain still asserted 
 her claim ; and the independence of the provinces had 
 not been acknowledged by Great Britain diplomat- 
 ically, though she had sent consuls to their principal 
 ports. In 1823, to carry out the purposes of the Holy 
 Alliance, France invaded Spain, to suppress the con- 
 stitutional government of the Cortes established 
 there, and restore absolutism in the person of Ferdi- 
 nand VIL As the success of the French invasion 
 became certain, there were signs that the parties to 
 the Holy Alliance intended to go further, and lend 
 their aid to Ferdinand VII to restore his dominion 
 over the Spanish-American provinces. The fears of 
 this course were justified by the previous language 
 of the Holy Alliance. In the Laybach circular of 
 May 12, 1821, they distinctly declared that they 
 regarded "as equally null, and disallowed by the 
 public law of Europe, any pretended reform effected 
 by revolt and open force"; and in their circular of 
 Dec. 5, 1822, respecting the constitutional govern- 
 ment in Spain, they declared their resolution "to 
 repel the maxim of rebellion, in whatever place or 
 under whatever form it might show itself"; thus 
 repeating their claim made at Troppau, "that the 
 European powers have an undoubted right to take 
 a hostile attitude in regard to those States in which 
 the overthrow of the government might operate as 
 an example." England professed, also, to see indica- 
 tions that France intended to be compensated for 
 her effective intervention, by a cession of some Amer- 
 ican province, and Cuba was the suspected reward. 
 Great Britain, who had never been party to this 
 alliance, and protested against the intervention of 
 1821, took special umbrage at the French invasion 
 
314 RICHARD HENRY DANA, JR. 
 
 of Spain, her late ally, from whose borders she had, 
 only ten years before, expelled the French armies. 
 There was a strong popular inclination in England 
 to make this invasion a cause of war; but this was 
 not seconded by the ministry, who betook themselves 
 to diplomatic efforts to defeat the schemes of the 
 continental powers. The French Government, on its 
 part, had its suggestion that the British Cabinet was 
 determined to send a squadron, and take possession 
 of Cuba. The people of Cuba, already divided be- 
 tween the parties of the king and the Cortes, and 
 terrified by symptoms of slave insurrections, had 
 among them large numbers who, dissatisfied with 
 Spanish rule, looked to other powers for protection, 
 — some to Great Britain, but far the larger part to 
 the United States. About September, 1822, the lat- 
 ter party sent a secret agent to confer with President 
 Monroe. They declared, that, if the United States 
 Government would promise them protection, and ul- 
 timate admission into the Union, a revolution would 
 be made to throw off the Spanish authority, of the 
 success of which they had no doubt. While this pro- 
 position was before Mr. Monroe's Cabinet, he re- 
 ceived an unofficial and circuitous communication 
 from the French Minister, asserting that his govern- 
 ment had positive information of the design of Great 
 Britain to take possession of Cuba. The American 
 Government replied to the Cuban deputation, that 
 the friendly relations of the United States with Spain 
 did not permit us to promise countenance or protec- 
 tion to insurrectional movements, and advised the 
 people of Cuba to adhere to their Spanish allegiance; 
 at the same time informing them that an attempt 
 upon Cuba, by either Great Britain or France, would 
 
THE MONROE DOCTRINE 315 
 
 place the relations of Cuba with the United States 
 in a very different position. Mr. Rush was instructed 
 to inform Mr. Canning that the United States could 
 not see with indifference the possession of Cuba by 
 any European power other than Spain, and to inform 
 him of the rumors that had reached the Cabinet. Mr. 
 Canning disavowed emphatically all intention on the 
 part of Great Britain to take possession of Cuba, but 
 avowed her determination not to see with indiffer- 
 ence its occupation by either France or the United 
 States; and proposed an understanding between the 
 British, French, and American governments, without 
 any formal convention, that Cuba should be left in 
 the quiet possession of Spain. This was assented to 
 by Mr. Monroe; but he had no communication with 
 France on the subject, leaving that to the manage- 
 ment of Great Britain. 
 
 As respects the Spanish colonies which had been 
 at war with Spain for their independence, the United 
 States were naturally anxious about the movements 
 of the allies; and Mr. Adams had communicated to 
 Mr. Rush at London, in general terms, the strong 
 feeling of the government, and the earnest popular 
 opinion on that subject. The British Government 
 was also very solicitous to prevent all intervention 
 against those provinces by the continental powers, 
 and to leave them free to complete their independ- 
 ence. This would not only, with the arrangement 
 respecting Cuba, defeat the Transatlantic schemes 
 of France, if she had any, and, in the famous words 
 of Mr. Canning, "call the new world into existence 
 to redress the balance of the old," but would repress 
 generally the absolutist powers on the continent, 
 avenge the affront to Great Britain by the invasion 
 
316 RICHARD HENRY DANA, JR. 
 
 of Spain, and procure for England the benefit of an 
 unrestricted commerce with Spanish America. Mr. 
 Canning feared that a formal recognition of the in- 
 dependence of those colonies might involve England 
 in a war with the continental powers ; but was confi- 
 dent that their independence would be secured if all 
 intervention or hope of intervention in aid of Spain 
 could be effectually precluded. With this view, Mr. 
 Canning, in August and September, 1823, urged upon 
 Mr. Rush a combined declaration by Great Britain 
 and the United States to the effect, that, while they 
 aimed at the possession of no portion of the Spanish 
 colonies for themselves, and would not obstruct any 
 amicable negotiations between the colonies and the 
 mother country, they could not see with indifference 
 the intervention of any foreign power, or the transfer 
 to such power of any of the colonies. In support of 
 his request, Mr. Canning stated that a proposal 
 would be made for a European Congress, to settle 
 the affairs of Spanish America; and said that Great 
 Britain would take no part in it, except upon the 
 terms that the United States should be represented. 
 Mr. Rush replied, as to the Congress, that it was the 
 traditional policy of the United States to take no 
 part in European politics; and, having no instructions 
 from his government, said he would still take the 
 responsibility of joining in the declaration, if Great 
 Britain would first acknowledge the independence of 
 the colonies. Mr. Canning not being ready to take 
 this decisive step, the proposed joint declaration was 
 never made; but Mr. Rush communicated the pro- 
 posal to his government; the result of which was the 
 celebrated declaration against European intervention 
 in Mr. Monroe's annual message of Dec. 2, 1823. 
 
THE MONROE DOCTRINE 317 
 
 In Mr. Monroe's Cabinet at that time, John Quincy 
 Adams was Secretary of State, and Mr. Calhoun Sec- 
 retary of War; and, beside the advice derived from 
 them, Mr. Monroe laid the subject of Mr. Canning's 
 proposal before Mr. Jefferson, — then in retirement, 
 — and asked his opinion. Mr. Jefferson replied by 
 an elaborate letter, of 24 October, 1823. (Jefferson's 
 Life, iii, 491.) He says: "Our first maxim should be, 
 never to entangle ourselves in the broils of Europe; 
 our second, never to suffer Europe to intermeddle 
 with Cisatlantic affairs." Referring to the great 
 power Great Britain could wield for good or evil in 
 these controversies, and expressing his gratification 
 at the stand she was then taking, and recognizing 
 the fact that we could not join in the declaration if 
 we had any designs upon Cuba or any American 
 State ourselves, he advised Mr. Monroe to join in 
 the declaration, which Mr. Jefferson worded thus: 
 "That we aim not at the acquisition of any of those 
 possessions; that we will not stand in the way of any 
 amicable arrangement between the colonies and their 
 mother country; that we will oppose with all our 
 means the forcible interposition of any other power 
 as auxiliary, stipendiary, or under any other form or 
 pretext, and most especially their transfer to any 
 power by conquest, cession, or acquisition in any other 
 way." 
 
 It will be seen that the administration did not ac- 
 cept Mr. Canning's proposal for a joint declaration, 
 but spoke for the United States alone; and, in doing 
 so, did not adopt the declaration proposed by Mr. 
 Canning and recommended by Mr. Jefferson, but 
 a very different one. After treating of various other 
 matters foreign and domestic, as usual in the annual 
 
318 RICHARD HENRY DANA, JR. 
 
 message, Mr. Monroe passes, towards its close, to 
 speak of the efforts in Spain and Portugal to improve 
 the condition of the people, and of the general disap- 
 pointment of the expectations of the American people 
 in favor of the liberty and happiness of their fellow- 
 men on that side of the Atlantic and says: "In the 
 wars of the European powers, in matters relating to 
 themselves, we have never taken any part, nor does 
 it comport with our policy so to do. It is only when 
 our rights are invaded or seriously menaced that we 
 resent injuries, or make preparation for our defence. 
 With the movements in this hemisphere we are, of 
 necessity, more immediately connected, and by causes 
 which must be obvious to all enlightened and im- 
 partial observers. The political system of the allied 
 powers is essentially different in this respect from 
 that of America. This difference proceeds from that 
 which exists in their respective governments. And 
 to the defence of our own, which has been achieved 
 by the loss of so much blood and treasure, and ma- 
 tured by the wisdom of our most enlightened citizens, 
 and under which we have enjoyed an unexampled 
 felicity, this whole nation is devoted. We owe it, 
 therefore, to candor and to the amicable relations 
 existing between the United States and those powers 
 to declare, that we should consider any attempt on 
 their part to extend their system to any portion of 
 this hemisphere as dangerous to our peace and safety. 
 With the existing colonies or dependencies of any 
 European power, we have not interfered, and shall 
 not interfere. But with the governments who have 
 declared their independence and maintained it, and 
 whose independence we have, on great consideration 
 and on just principles, acknowledged, we could not 
 
THE MONROE DOCTRINE 319 
 
 view any interposition for the purpose of oppressing 
 them, or controlling in any other manner their des- 
 tiny, by any European power, in any other light than 
 as the manifestation of an unfriendly disposition 
 toward the United States. In the war between those 
 new governments and Spain, we declared our neu- 
 trality at the time of their recognition; and to this 
 we have adhered, and shall continue to adhere, pro- 
 vided no change shall occur which, in the judgment 
 of the competent authorities of this government, shall 
 make a corresponding change on the part of the 
 United States indispensable to their security." Then, 
 speaking of the recent forcible interposition by the 
 allies in the internal concerns of Spain, he says: "To 
 what extent such interposition may be carried, on 
 the same principle, is a question in which all inde- 
 pendent powers whose governments differ from theirs 
 are interested, and even those most remote, and 
 surely none more so than the United States. Our 
 policy in regard to Europe, which was adopted at an 
 early stage of the wars which have so long agitated 
 that quarter of the globe, nevertheless remains the 
 same; which is, not to interfere in the internal con- 
 cerns of any of its powers ; to consider the government 
 de facto as the legitimate government for us ; to cul- 
 tivate friendly relations with it ; and to preserve those 
 relations by a frank, firm, and manly policy, meeting 
 in all instances the just claims of every power, sub- 
 mitting to injuries from none. But, in regard to these 
 continents, circumstances are eminently and con- 
 spicuously different. It is impossible that the allied 
 powers should extend their political system to any 
 portion of either continent without endangering our 
 peace and happiness; nor can any one believe that 
 
320 RICHARD HENRY DANA, JR. 
 
 our Southern brethren, if left to themselves, would 
 adopt it of their own accord. It is equally impossible, 
 therefore, that we should behold such interposition 
 in any form with indifference. If we look to the com- 
 parative strength and resources of Spain and those 
 new governments, and their distance from each other, 
 it must be obvious that she can never subdue them. 
 It is still the true policy of the United States to leave 
 the parties to themselves, in the hope that the other 
 powers will pursue the same course." 
 
 This message of President Monroe reached England 
 while the correspondence between Mr. Canning and 
 the Prince Polignac was in progress; and it was re- 
 ceived not only with satisfaction, but with enthusiasm. 
 Mr. Brougham said: "The question with regard to 
 Spanish America is now, I believe, disposed of, or 
 nearly so; for an event has recently happened than 
 which none has ever dispersed greater joy, exultation, 
 and gratitude over all the free men of Europe: that 
 event, which is decisive on the subject, is the language 
 held with respect to Spanish America in the message 
 of the President of the United States." Sir James 
 Mackintosh said: "This coincidence of the two great 
 English commonwealths (for so I delight to call them ; 
 and I heartily pray that they may be for ever united 
 in the cause of justice and liberty) cannot be con- 
 templated without the utmost pleasure by every en- 
 lightened citizen of the earth." This attitude of the 
 American Government gave a decisive support to that 
 of Great Britain, and effectually put an end to the 
 designs of the absolutist powers of the continent to 
 interfere with the affairs of Spanish America. Those 
 dynasties had no disposition to hazard a war with 
 such a power, moral and material, as Great Britain 
 
THE MONROE DOCTRINE 321 
 
 and the United States would have presented, when 
 united in the defence of independent constitutional 
 governments. 
 
 It is to be borne in mind that the declarations 
 known as the Monroe Doctrine have never received 
 the sanction of an act or resolution of Congress; nor 
 have they any of that authority which European gov- 
 ernments attach to a royal ordinance. They are, in 
 fact, only the declarations of an existing administra- 
 tion of what its own policy would be, and what it 
 thinks should ever be the policy of the country, on a 
 subject of paramount and permanent interest. Thus, 
 at the same session in which the message was delivered, 
 Mr. Clay introduced the following resolution: "That 
 the people of these States would not see, without 
 serious inquietude, any forcible interposition by the 
 allied powers of Europe, in behalf of Spain, to reduce 
 to their former subjection those parts of the con- 
 tinent of x^merica which have proclaimed and estab- 
 lished for themselves, respectively, independent gov- 
 ernments, and which have been solemnly recognized 
 by the United States." But this resolution was never 
 brought up for action or discussion. It is seen also, by 
 the debates on the Panama mission and the Yucatan 
 intervention, that Congress has never been willing to 
 commit the nation to any compact or pledge on this 
 subject, or to any specific declaration of purpose or 
 methods, beyond the general language of the message. 
 
 In the debates on the Clayton-Bulwer treaty, in 
 1855-56, above referred to, all the speakers seemed to 
 agree to this position of the subject. Mr. Clayton 
 said : " In reference to this particular territory, I would 
 not hesitate at all, as one Senator, to assert the Mon- 
 roe Doctrine and maintain it by my vote; but I do not 
 
322 RICHARD HENRY DANA, JR. 
 
 expect to be sustained in such a vote by both branches 
 of Congress. Whenever the attempt has been made 
 to assert the Monroe Doctrine in either branch of 
 Congress, it has failed. The present Democratic party 
 came into power, after the debate on the Panama 
 mission, on the utter abnegation of the whole doctrine, 
 and stood upon Washington's doctrine of non-inter- 
 vention. You cannot prevail on a majority, and I will 
 venture to say that you cannot prevail on one-third, 
 of either house of Congress to sustain it." Mr. Cass 
 said : "Whenever the Monroe Doctrine has been urged, 
 either one or the other house of Congress, or both 
 houses, did not stand up to it." Mr. Seward said: *'It 
 is true that each house of Congress has declined to 
 assert it; but the honorable senators must do each 
 house the justice to acknowledge that the reason why 
 they did decline to assert the doctrine was, that it 
 was proposed, as many members thought, as an ab- 
 straction, unnecessary, not called for at the time." 
 Mr. Mason spoke of it as having "never been sanc- 
 tioned or recognized by any constitutional authority." 
 Mr. Cass afterwards, in a very elaborate speech (of 
 Jan. 28, 1856), gave his views of the history and char- 
 acter of the doctrine. He placed it upon very high 
 ground, as a declaration not only against European 
 intervention or future colonization, but against the 
 acquisition of dominion on the continent by Euro- 
 pean powers, by whatever mode or however derived; 
 and seemed to consider it as a pledge to resist such 
 a result by force, if necessary, in any part of the con- 
 tinent. He says: "We ought years ago, by Congres- 
 sional interposition, to have made this system of 
 policy an American system, by a solemn declaration; 
 and, if we had done so, we should have spared our- 
 
THE MONROE DOCTRINE 323 
 
 selves much trouble and no little mortification." 
 Referring to Mr. Polk's message, in 1845, he said there 
 was then an opportunity for Congress to adopt the 
 doctrine, not as an abstraction, but on a practical 
 point. "We refused to say a word; and, I repeat, we 
 refused then even to take the subject into considera- 
 tion." He denied the correctness of IMr. Calhoun's 
 explanation (vide supra) , and contended that the non- 
 colonization clause was intended to be, and under- 
 stood by England to be, a foreclosure of the whole 
 continent against all future European dominion, 
 however derived. It may well be said, however, and 
 such seems now to be the prevalent opinion, that the 
 complaints of Mr. Cass and others of his school, of 
 the neglect and abandonment of the Monroe Doc- 
 trine, apply rather to their construction of the doc- 
 trine than to the doctrine itself. 
 
 That the declarations in Mr. Monroe's message 
 arose out of the apprehension that the Holy Alliance 
 sought to extend its system to the American colonies, 
 and possibly to independent American States, there 
 can be no doubt. The only points made by Mr. Mon- 
 roe are — "Any attempt on their part to extend their 
 system [the political system of the Holy Alliance] to 
 any portion of this hemisphere"; and "Any inter- 
 position for the purpose of oppressing them [the 
 American States], or controlling in any other man- 
 ner their destiny." It is observable that the protest 
 is against certain modes of European action, and not 
 against new acquisitions specifically, nor even in- 
 ferentially, if made, for instance, by treaties in which 
 there should be no coercion and no interposition by 
 third powers, or by conquest in a war not waged for 
 the policy or purpose objected to. Mr. Jefferson, in 
 
324 RICHARD HENRY DANA, JR. 
 
 his letter above referred to, had noticed this subject, 
 and placed among the acts we should oppose "their 
 transfer to any power by conquest, cession, or acqui- 
 sition in any way." Still, Mr. Monroe's Cabinet made 
 no declaration on the point of transfer of dominion. 
 It is also to be observed that Mr. Canning's proposi- 
 tion to Mr. Rush was for a joint declaration by the 
 two governments of a double proposition, — 1st, That 
 they did not aim at the possession of any portion of 
 the Spanish colonies for themselves; and, 2d, That 
 "they could not see the transfer of any portion of 
 them to any other power with indifference." This 
 double proposition, communicated by Mr. Rush to 
 the President and by him to Mr. Jefferson, and recom- 
 mended by Mr. Jefferson and laid before the Cabinet 
 is still not adopted in the message. Confining itself 
 to a declaration against interposition to oppress or 
 control, or to extend the system of the Holy Alliance 
 to this hemisphere, the message avoids committing 
 the government on the subject of acquisition, either 
 by the United States or the European powers, and 
 whether by voluntary cession or conquest. Possibly 
 the administration may have paused at Mr. Jeffer- 
 son's caution in his letter referred to: — "But we 
 must first ask ourselves a question, — Do we wish to 
 acquire any one or more of the Spanish provinces? 
 — before we can unite in the proposed joint declara- 
 tion." Mr. Jefferson confesses that, in his opinion, 
 Cuba would be "the most interesting addition that 
 could ever be made to our system of States"; yet is 
 willing, in view of the great advantages to be gained 
 by the joint declaration, to forego Cuba. The slave- 
 holding interest was clearly looking to Cuba, not only 
 as an addition to its political power in the Union, but 
 
THE MONROE DOCTRINE 325 
 
 to prevent abolition of slavery there by some other 
 power; and it is known that Mr. Adams had a no- 
 ticeable leaning in favor of its importance to us in a 
 military and commercial view. The Texas question 
 was already looming in the distance; and it was but 
 three years since we had acquired Florida, and but 
 twenty years since we had purchased the vast Louisi- 
 ana territory. Twenty-two years after this, we an- 
 nexed Texas; and, twenty -five years after, we ac- 
 quired by conquest California and New Mexico; and, 
 for several years before the civil war of 1861, the 
 lave-owner in the Union was exerting itself to annex 
 Cuba. It is true the government had, as has been 
 seen, exchanged declarations with England as to 
 Cuba; but then, as later, when, in 1854, the tripartite 
 alliance for the retention of Cuba by Spain was pro- 
 posed, we were not willing to commit ourselves to 
 absolute guaranties on that point: and a successful 
 revolution in Cuba might have made, at any time, 
 an opening for her annexation. When we compare 
 the declarations in the message with the joint decla- 
 ration proposed by Mr. Canning and recommended 
 by Mr. Jefferson, and consider our own prior history 
 and our then position, it certainly is a fair inference 
 that the administration purposely avoided any spe- 
 cific and direct statement as to transfer of dominion 
 by competent parties, in the way of treaty, or by 
 conquest in war. 
 
 In further explanation of the Monroe Doctrine, it 
 is to be noticed that it is correctly called a doctrine, 
 and no more. There is no intimation what the United 
 States will do in case of European interposition, or 
 what means it will take to prevent it. The United 
 States have steadily refused to enter into any arrange- 
 
326 RICHARD HENRY DANA, JR. 
 
 ment with the other American States for establishing 
 a continental system on that point, or for mutual 
 defiance, or even to commit themselves in the way 
 of pledge or promise. When the Spanish-American 
 States wished to treat the message of 1823 as a 
 "pledge" to them for the future, that construction 
 of it was successfully resisted by the opposition, how- 
 ever favorably it may be thought Mr. Adams and 
 his Cabinet at first regarded it. And public opinion 
 may be considered as settled on the point that the 
 action of the nation, in any case that may arise, must 
 be unembarrassed by pledge or compact; and, fur- 
 ther, as equally settled, against the introduction of 
 anything approaching the nature of a Holy Alliance 
 for this continent, though it be in the interests of 
 republican institutions. 
 
 It has sometimes been assumed that the Monroe 
 Doctrine contained some declaration against any 
 other than democratic-republican institutions on 
 this continent, however arising or introduced. The 
 message will be searched in vain for any thing of the 
 kind. We were the first to recognize the imperial 
 authority of Don Pedro in Brazil, and of Iturbide in 
 Mexico; and more than half the northern continent 
 was under the sceptres of Great Britain and Russia; 
 and these dependencies would certainly be free to 
 adopt what institutions they pleased, in case of suc- 
 cessful rebellion, or of peaceful separation from their 
 parent States. 
 
 As a summary of this subject, it would seem that 
 the following positions may be safely taken: I. The 
 declarations upon which Mr. Monroe consulted Mr. 
 Jefferson and his own Cabinet related to the inter- 
 position of European powers in the affairs of Ameri- 
 
THE MONROE DOCTRINE 327 
 
 can States. 11. The kind of interposition declared 
 against was that which may be made for the purpose 
 of controlhng their political affairs, or extending to 
 this hemisphere the system in operation upon the 
 continent of Europe, by which the great powers exer- 
 cise a control over the affairs of other European States. 
 III. The declarations do not intimate any course 
 of conduct to be pursued in case of such interposi- 
 tions, but merely say that they would be "consid- 
 ered as dangerous to our peace and safety," and as 
 " the manifestation of an unfriendly disposition toward 
 the United States," which it would be impossible for 
 us to "behold with indifference"; thus leaving the 
 nation to act at all times as its opinion of its policy 
 or duty might require. IV. The declarations are only 
 the opinion of the administration of 1823, and have 
 acquired no legal force or sanction. V. The United 
 States has never made any alliance with, or pledge 
 to, any other American State on the subject covered 
 by the declarations. VI. The declaration respect- 
 ing non-colonization was on a subject distinct from 
 European intervention with American States, and 
 related to the acquisition of sovereign title by any 
 European power, by new and original occupation or 
 colonization thereafter. Whatever were the political 
 motives for resisting such colonization, the principle 
 of public law upon which it was placed was, that the 
 continent must be considered as already within the 
 occupation and jurisdiction of independent civilized 
 nations. 
 
 On this subject, the reader is referred to the follow- 
 ing authorities: — Mr. Adams to Mr. Rush, July 2, 
 1823; Mr. Monroe's message, December 2, 1823; Mr. 
 
328 RICHARD HENRY DANA, JR. 
 
 Rush's Memoranda of Residence at the Court of 
 London; Stapleton's Life of Canning; Brief wechsel 
 zwischen Varnhagen von Ense und Oelsner, vol. iii; 
 Mr. Clay's resolution, offered January 20, 1824; the 
 ukase of the Emperor Alexander, September 4, 1821; 
 the treaty between the United States and Spain, 22 
 February, 1819; the Nootka-Sound Convention be- 
 tween Spain and Great Britain of 28 October, 1790; 
 Mr. Monroe's annual message, December 7, 1824; 
 Mr. Adams's messages of December 26, 1825, and 
 March 26, 1826; Mr. Clay's despatch to Mr. Poinsett, 
 March 25, 1825; Mr. Webster's speech on the Panama 
 mission, Webster's Works, iii, 178; Mr. Everett's 
 speech on the same. Congressional Debates, 1826; 
 Mr. Calhoun's speech on the Yucatan question, Cal- 
 houn's Works, iv, 454; Mr. Polk's annual message 
 of December 2, 1845; his special message on Yucatan, 
 of April 29, 1848; the debate in the Senate on the 
 Yucatan question, April and May, 1848, Congressional 
 Globe, 1848, p. 712 et seq.; the Clayton-Bulwer treaty, 
 United-States Laws, x, 995; Debates in the United 
 States on the Clayton-Bulwer treaty, 1855-56, Con- 
 gressional Globe and Appendix for first Session Thirty- 
 fourth Congress; North-American Review, 1856, 
 page 478; Mr. Everett's letter of September 2, 1863, 
 on the Monroe Doctrine, in the New-York Ledger; 
 Letter of J. Q. Adams on the same, to the Rev. Dr. 
 Channing, of August 11, 1837; Mr. Canning's speech 
 of December 12, 1826; Mr. Buchanan's article on the 
 Monroe Doctrine, in his History of his Administra- 
 tion, page 276. 
 
THE MONROE DOCTRINE 329 
 
 French Intervention in Mexico 
 This intervention began with a convention "made at Lon- 
 don on the 31st of October, 1861, between Great Britain, France 
 and Spain, professedly for the purpose of obtaining redress and 
 security from Mexico to the citizens of the contracting powers." 
 The direct object was to force the payment by Mexico of bonds 
 held by, and the collection of damages for injuries inflicted on 
 citizens of, the contracting powers, and also to secure a more 
 efficacious protection for the persons and property of then- citi- 
 zens residing in Mexico in the future. The contracting powers 
 "engaged not to seek for themselves any acquisition of terri- 
 tory or special advantage, nor to exercise in the internal affairs 
 of Mexico any influence of a nature to prejudice the right of the 
 Mexican nation to choose and constitute the form of its govern- 
 ment," and that the occupation of territory and "other opera- 
 tions" should be limited to such as should be judged suitable to 
 secure the above objects; in short, it was war on Mexico, not 
 only to obtain payment of debts and damages, but to change 
 the government to one more secure, which change, however, 
 was to be effected by the Mexicans themselves, and until these 
 objects were attained, armed occupation was to be acquired 
 and maintained. 
 
 Mr. Seward, Secretary of State, suggested an arrangement by 
 which the United States would enable Mexico to pay her just 
 debts; but that alone was not considered satisfactory, as the 
 contracting powers insisted that one of their chief objects was 
 to secure the future good treatment of resident foreigners. Mr. 
 Seward admitted the right of the powers to judge for themselves 
 whether they had sustained grievances that required them to 
 levy war; but that the United States had a deep interest that 
 they should not interfere with the right of the Mexican people 
 to choose the form of their own government. 
 
 In April, 1862, the Spanish and English withdrew, on the 
 ground that the French had gone beyond the terms of the con- 
 vention in giving military aid to the party in favor of establish- 
 ing an imperial government in Mexico. Under French protec- 
 
S30 RICHARD HENRY DANA, JR. 
 
 tion, an assembly of notables selected by the imperial party 
 offered the throne to Archduke Maximilian of Austria, without 
 even the pretense of a general vote of the Mexican people, and 
 this government was acknowledged and protected by France. 
 Both the United States and Great Britain refused to recognize 
 this new government; but acknowledged a state of war and 
 held themselves neutral. 
 
 The government of the United States, during the first three 
 years of this interference on the part of France, was so occupied 
 with the Civil War that only occasional protests were made; 
 but soon after the Civil War was over, at the end of 1865, Mr. 
 Seward took more decided steps. He then made it clear that in 
 the United States there was much discontent, not with the 
 French war in Mexico, but with the attempt of France to es- 
 tablish by force a monarchical government in an American state 
 which itself preferred a republican form of government; and 
 expressed the wish that France "might find it compatible with 
 its interests and high honor to withdraw from this aggressive 
 attitude in Mexico," which meant, in diplomatic language, as 
 Bancroft says in his Life of Seward, that France must "with- 
 draw or fight." A United States "army of observation" under 
 command of General Sheridan w^as established on the banks of 
 the Rio Grande and had much to do with the success of Seward's 
 diplomacy.^ In 1866, France promised to withdraw by the fol- 
 lowing year, but later expressed a wish to postpone the depar- 
 ture. To this Secretary Seward replied by cable that the United 
 States "would not acquiesce" in postponement, and the French 
 withdrew from the city of Mexico in February, 1867. Maxi- 
 milian's forces were routed and he was shot June 19 of the same 
 year.^ 
 
 Venezuelan Boundary Question 
 
 A dispute had arisen between Great Britain and Venezuela 
 as to the boundary line between British Guiana, a colony of 
 Great Britain, and the Republic of Venezuela. In that dispute, 
 
 ^ See Personal Memories of P. H. Sheridan, vol. ii, pp. 20C-228. 
 ^ See Dana's Wheaton, note 41, pp. 126-132, and Moore's Interna- 
 tional Law Digest, vol. vi, sections 956-957. 
 
THE MONROE DOCTRINE 331 
 
 which had been going on for many years, Venezuela claimed — 
 and with a sufficient prima facie case to make it worthy of con- 
 sideration — that Great Britain had been extending its bound- 
 ary claims westward into Venezuelan territory, and was un- 
 willing to arbitrate the whole question, but only a portion of her 
 most westerly and recently extended claims. 
 
 In response to the annual message of President Cleveland 
 touching on this subject, a resolve was passed by both Houses 
 of Congress and approved February 2, 1895, in which it was 
 "earnestly recommended" that Great Britain and Venezeula 
 refer the dispute to "friendly arbitration." In accordance with 
 this resolution, a correspondence was begun between Secretary 
 Olney for the United States and Lord Salisbury for Great Britain, 
 in the same year. Mr. Olney, in his letter of July 20,^ claimed 
 that the Monroe Doctrine, declaring against "future acquisi- 
 tion by European powers" or trying to "extend their political 
 system to any portion" of America, applied to a boundary dis- 
 pute in which it was claimed with some show of justice that 
 extensions of territory were being made, and that the United 
 States could not "behold" such a possible extension with "in- 
 difference," and urged arbitration, covering the whole of the 
 territory claimed by either party, as the only proper method 
 of settling the dispute. 
 
 President Cleveland, in a subsequent message to Congress 
 dated December 2, 1895, •^ touched on this dispute between Great 
 Britain and Venezuela,^ and referred to the dispatch by Secre- 
 tary Olney of July 20, "in which" the message says "the atti- 
 tude of the United States was fully and distinctly set forth. 
 The general conclusions there reached and formulated are in 
 substance that the traditional and established policy of this 
 government is," etc.; "that, as a consequence, the United States 
 is bound to protest against the enlargement of the area of British 
 Guiana in derogation of the rights and against the will of Vene- 
 
 1 Sen. Doc. No. 31, 54 Cong., 1 Sess., p. 4. 
 « Ibid., p. 4. 
 
 ^ This occupied three fourths of a page out of a message 34 pages 
 in length. 
 
332 RICHARD HENRY DANA, JR. 
 
 zuela; that considering the disparity," etc.; "the territorial dis- 
 pute between them can be reasonably settled only by . . . arbi- 
 tration." Lord Salisbury's reply, though dated November 26, 
 was not received in Washington till some time after this mes- 
 sage. In that reply, ^ Lord Salisbury agreed to the Monroe Doc- 
 trine in so far that "any fresh acquisitions on the part of any 
 European state would be a highly inexpedient change"; but 
 asserted that Her Majesty's government must not be understood 
 as accepting the Monroe Doctrine, and denied that it was in 
 any way " clothed with the sanction . . . of international law," 
 and claimed that "the disputed frontier of Venezuela has nothing 
 to do with any of the questions dealt with by President Monroe," 
 and gives the United States no right to demand arbitration be- 
 tween Great Britain and Venezuela, and called such a demand 
 by the United States a "novel prerogative." 
 
 In a letter to the British Ambassador at Washington of the 
 same date,^ Lord Salisbury stated that the apparent extensions 
 of the boundary line into Venezuelan territory were explained by 
 the fact that Great Britain had, on previous occasions, placed 
 the boundary line short of its real claims, in hopes of securing a 
 compromise with Venezuela, and failing in that, had pushed the 
 boundary to the extent of what it considered its full rights. In 
 conclusion. Lord Salisbury refused to arbitrate the whole dispute, 
 but was willing to arbitrate with reference to the claims west of 
 the Schomburgk line, so-called, drawn by an engineer of that 
 name in Her Majesty's employ in 1840. This left a portion only of 
 the disputed territory open to arbitration, and more particularly 
 excluded territory near the mouth of the Orinoco, which con- 
 trolled the entrance to the great river running through Venezuelan 
 territory. 
 
 After receiving this refusal to arbitrate the dispute in a sub- 
 stantial manner, President Cleveland, in a special message of 
 December 17,^ enclosed copies of the above correspondence, 
 answered some of Lord Salisbury's arguments in relation to the 
 
 1 Sen. Doc. No. 31, 54 Cong., 1 Sess., p. 22. 
 
 2 Ihid., p. 26. 
 
 ^ Ihid., pp. 1-4. 
 
THE MONROE DOCTRINE 333 
 
 Monroe Doctrine, and then went on to say, it is "now incumbent 
 upon the United States to take measures to determine, with 
 sufficient certainty for its protection, what is the true division 
 line between the repubhc of Venezuela and British Guiana," and 
 suggested to Congress a commission with "adequate appropria- 
 tions," to be appointed by the executive, to investigate and re- 
 port. 
 
 "When such report is made and accepted it will in my opin- 
 ion be the duty of the United States to resist by every means in 
 its power, as a willful aggression upon its rights and interests, 
 the appropriation by Great Britain of any lands or the exercise 
 of governmental jurisdiction over any territory which after in- 
 vestigation we have determined of right belongs to Venezuela. 
 
 "In making tliese recommendations I am fully alive to the 
 responsibility incurred, and keenly realize all the consequences 
 that may follow. 
 
 "I am nevertheless firm in my conviction that while it is a griev- 
 ous thing to contemplate the two great English-speaking peoples 
 of the world as being otherwise than friendly competitors in the 
 onward march of civilization, and strenuous and worthy rivals 
 in all the arts of peace, there is no calamity which a great nation 
 can invite which equals that which follows a supine submission 
 to wrong and injustice and the consequent loss of national self- 
 respect and honor, beneath which are shielded and defended a 
 people's safety and greatness." 
 
 Both Great Britain and the United States were thunderstruck 
 by this message. The stock market in the United States, which 
 had been in a weak condition, fell rapidly on the mere suggestion 
 of war, for which we were but inadequately prepared, and not 
 only much of the opposition press, but some of the independent 
 papers, especially in New York and Boston, which had hitherto 
 supported President Cleveland, attacked this message with 
 ferocity. Congress, however, was almost a unit in support of 
 President Cleveland's position, and so was most of the press 
 of the country, not under Wall Street influences. 
 
 Among the attacks, it was stated that, in the first message, 
 the phrase used by Cleveland, "the enlargement of area of 
 
334 RICHARD HENRY DANA, JR. 
 
 British Guiana in derogation of the rights and against the will 
 of Venezuela," was a finding on the part of President Cleveland 
 that Great Britain was in the wrong. This statement was re- 
 peated and this quotation to substantiate it was made again 
 and again by such papers as the New York "Nation." This 
 quotation, omitting the words "that as a consequence" and 
 taken alone by itself without reference to the rest of the message, 
 might surely seem to have such a meaning; but the words in 
 question are but a survey of the "general conclusions" of Mr. 
 Olney's letter of July 20, and in that letter, Mr. Olney, Secre-* 
 tary of State, says : — 
 
 "It is not admitted, however, and therefore cannot be 
 assumed that Great Britain is in fact usurping dominion over 
 Venezuelan territory. While Venezuela charges such usurpa- 
 tion. Great Britain denies it, and the United States, until 
 the merits are authoritatively ascertained, can take sides with 
 neither." 
 
 Lord Salisbury, in his reply of November 26, clearly under- 
 stands the attitude of the United States as not committed to 
 any finding, and says "the government [United States] appar- 
 ently have not formed and certainly did not express any opin- 
 ion upon the actual merits of the dispute. The government of the 
 United States do not say that Great Britain or that Venezuela 
 is in the right in the matters that are in issue"; and still more 
 is it apparent that President Cleveland was making no finding, 
 when we come to the special message which caused the excite- 
 ment, and which puts it conditionally, "if any European power 
 by an extension of its boundaries," and again, "without any 
 conviction as to the final merits of the dispute, but anxious to 
 learn if the government of Great Britain sought, under claim to 
 boundary, to extend her position, . . . this government proposes 
 . . . arbitration"; and arbitration being declined, the message 
 proposed a commission to determine "the true divisional lines." 
 Taking it altogether, and apart from the excitement of the mo- 
 ment, it is quite clear that the sentence is onlj^ a statement of a 
 conclusion that our government was bound to protest against 
 
THE MONROE DOCTRINE 335 
 
 such an enlargement of area, incase any such enlargement should 
 in fact exist. ^ 
 
 "Whatever may be said as to the harshness of the wording of 
 the special message of December 17, for which there is, however, 
 recent diplomatic authority, it had the effect of arousing the 
 British public conscience. The correspondence, covering many 
 years and different administrations, on this subject, had all been 
 pigeon-holed in the Foreign Office of Great Britain, excepting 
 that Gladstone, in 1885, had proposed a more liberal arbitra- 
 tion " than his successor, Lord Salisbury, was willing to carry 
 out. Public opinion in England being enlightened and stirred 
 by this message, forced Lord Salisbury to submit the whole 
 question to arbitration without reservation except that actual 
 settlements should be reserved and that "adverse holdings for 
 fifty years" should make a good title.^ This "actual settlement" 
 reservation was suggested by Secretary Olney and embodied in 
 the arbitral agreement in accordance with which the arbitra- 
 tion was to be conducted following the precedent made in the 
 Geneva Arbitration on the Alabama claims. This removed the 
 last objection by Great Britain to complete arbitration.'* The 
 treaty was signed February 2, 1897, before the United States 
 commission of inquiry had made its report. Later, President 
 Cleveland, in his "Political Problems," said: — 
 
 "Some may be surprised that this controversy was so long 
 chronic and yet in the end yielded so easily to pronounced treat- 
 ment." 
 
 The International Commission of Arbitration rendered a 
 unanimous award October 3, 1899, and in that, while giving 
 Great Britain a large share of the interior territory in dispute,^ 
 
 1 See also Presidential Problems, by Grover Cleveland, p. 258. 
 
 2 Letter of Lord Granville, May 15, 1885. 
 
 ^ Art. IV, rule (a) of treaty, Great Britain Foreign Office, Venezuela 
 No. 1,1899, p. 3. 
 
 ^ Letterof Mr. Olney to Sir Julian Pauneefote, July 13, 189G,pp. 253- 
 254, U. S. For. Rels., 1896. 
 
 ^ Message of President McKinley to Congress, Dec. 5, 1899, House 
 Doc, vol. i, 56th Cong., 1st Sess., 1899, p. xxxii. 
 
336 
 
 RICHARD HENRY DANA, JR. 
 
 gave to Venezuela no little land on and near the coast, which 
 was of great value as it commanded the mouth of the Orinoco, 
 and which was a part of the territory Lord Salisbury, in his 
 correspondence of 1895, was unwilling should be submitted to 
 
 
 ■■■•"■■■•"ExtremeBritish Claim (18951 
 
 0000000000 Schomburgh Line, East of which Grent Britain 
 ■would not submit to arbitration in 1895 
 
 Boundary established by Arbitration Commission in 1899 
 
 ^1— t— I— I— Extreme Venezuelan Claim 
 
 arbitration. Great Britain was allowed about one quarter of 
 the interior land which she was willing to arbitrate in 1895. 
 
 I learn, on sufRcient authority, that President Cleveland 
 feared, if this matter were allowed to drift on till open rupture 
 came between England and Venezuela, we should be involved 
 in the war. Diplomatic relations between England and Vene- 
 zuela had already been broken off, and armed conflicts, followed 
 by threats of war measures, had already occurred in the dis- 
 puted territory. Should war have begun, in which it must appear 
 that there was good reason to believe England's claim to ter- 
 ritory had been increased so that her action would seem to be 
 the forcible extension of territory, the American people would 
 become aroused and force our government to side with Vene- 
 zuela. Then Great Britain could not retreat with honor. In- 
 
THE MONROE DOCTRINE 337 
 
 evitably it would then be too late to get arbitration by mere 
 suggestion of force, while, on the other hand, Cleveland, being 
 a man of peace above all things, foresaw the great advantage of 
 making this suggestion in the diplomatic stages of the contro- 
 versy. Some passages in President Cleveland's Venezuelan 
 Boundary Controversy ^ sustain this view. 
 
 As to acquiescing in the policy maintained by Lord Salisbury, 
 that England, in a case of arbitrating a boundary dispute, could 
 exempt from arbitration, at her discretion, any part of the ter- 
 ritory in dispute, that would have been a fatal precedent for us, 
 for example, in the subsequent dispute with Great Britain as to 
 the boundary between the United States and her Canadian 
 provinces. As a result of this latter arbitration, almost the whole 
 territory was given to the United States ; but had the doctrine of 
 withholding part of the disputed territory been established. Great 
 Britain could easily have refused to arbitrate upon more than a 
 portion of this territory, which eventually came to us. 
 
 German Claims for Reparation and Apology against 
 THE Haytian Government 
 
 In 1897, the government of Hayti, relying upon its own view 
 of the Monroe Doctrine, applied to the United States for its 
 influence to prevent coercion by Germany, which was seeking 
 reparation and apology for injuries to a German subject residing 
 in Hayti. Mr. William M. Evarts, Secretary of State, answered, 
 "The Monroe Doctrine to which you refer is wholly inapplicable 
 to the case," and instructed Mr. Powell, our Minister in Hayti, 
 that it is not "the duty of the United States to protect its Amer- 
 ican neighbors from the responsibilities which attend the exer- 
 cise of independent sovereignty." 
 
 The United States and Nicaragua 
 
 Having established the principle that other nations may de- 
 mand reparation and apology, by force if necessary, without 
 contravening the Monroe Doctrine, our government feels itself 
 
 ^ Presidential Problems, by Grover Cleveland. 
 
338 RICHARD HENRY DANA, JR. 
 
 free to make the same demands. President Zelaya of Nicaragua 
 was reported to have tortured and shot two Americans, Groce 
 and Cannon, in the autumn of 1909. Secretary of State Knox, 
 in a strong message to Zelaya, demanded an immediate and full 
 explanation. United States vessels with marines were sent to 
 the coast, ready to take action in case the truth of these reports 
 could be confirmed, and diplomatic relations with Nicaragua 
 were broken off. 
 
 Collection of Claims by Foreign Governments 
 AGAINST Venezuela 
 
 In 1902-3, Great Britain, Germany and Italy, by a combined 
 blockade of the ports of Venezuela, compelled the payment of 
 claims, partly money engagements, and partly damages for in- 
 jury to the subjects of those nations residing in Venezuela. Ger- 
 many, in its note of December 11, 1901, stated to the United 
 States government its plan to use coercion in case Venezuela 
 refused settlement, saying, "We declare especially that under 
 no circumstances do we consider in our proceedings the acqui- 
 sition or the permanent occupation of Venezuelan territory," 
 though Germany might have to resort to "the temporary occu- 
 pation on our [its] part of different Venezuelan harbor-places 
 and the levying of duties in those places." 
 
 President Roosevelt, in his message of December 3, 1901, had 
 re-stated the principles of the Monroe Doctrine, and had added, 
 "We do not guarantee any state against punishment if it mis- 
 conducts itself, provided that punishment does not take the form 
 of the acquisition of territory by any non-American power." 
 
 Later, being forced by the blockading of her ports, Venezuela, 
 through the United States government, conveyed a proposal 
 of arbitration, and this was accepted by the powers, reserving 
 some special war-claims. The Hague Tribunal was to be the 
 arbitrator. It considered, however, only the claim of the prefer- 
 ential payment to the blockading powers, which claim, by its 
 decree of February 22, 1904, was sustained. The amount of the 
 claims, with the special war exceptions, was finally decided by 
 mixed commissions at Caracas. 
 
THE MONROE DOCTRINE 339 
 
 San Domingo Protocol 
 
 The decision of the Hague Tribunal, in the case of the col- 
 lection of claims against Venezuela, in favor of preferential 
 payment of the claims of the blockading powers, before the pay- 
 ment of the claims of other nations, had a more important 
 bearing on the Monroe Doctrine than would at first appear. 
 
 It had been the traditional policy of the United States not 
 of itself to compel or to join with other countries in compelling 
 by military or naval force, its financial claims against other 
 American countries. Continuing to follow this policy would, 
 under the Hague decision, postpone the claims of the United 
 States and its citizens until the claims of all other nations willing 
 to use force had been satisfied. In case the delinquent country 
 were rich and prosperous, this postponement might not be so 
 serious a matter; but if the delinquent country were practically 
 bankrupt, and if it would take a generation or more to ])ay off 
 the force-preferred claims, then the United States would prac- 
 tically be deferring the rights of its citizens to the next world, 
 as far as lives in being are concerned. 
 
 In this same connection, though independent of the decision 
 of the Hague Tribunal, arises the question as to the so-called 
 "temporary occupation" of the territory, mainly customs ports, 
 of American countries by European naval forces for the purpose 
 of collecting debts. Such occupation, if the delinquent country 
 were rich and the debts moderate, would be "temporary" in the 
 sense of being short; but if the delinquent country were bank- 
 rupt and the obligation large, such "temporary occupation" 
 might become practically permanent. 
 
 Take, for example, the "temporary occupation" of Egypt by 
 Great Britain, which has lasted over twenty years, with no sign 
 of its coming to an end; or the "temporary occupation" of 
 Mexico by the French from 1862 to 1867, which would not have 
 ceased but for the demand of the United States. 
 
 A case of indefinite occupation was proposed by Spain in 1866 
 in connection with the Chincha Islands. Spain proposed to oc- 
 cupy these islands and sell guano, to recoup herself for her ex- 
 
340 RICHARD HENRY DANA, JR. 
 
 penses in the war with Peru. This being an indefinitely long 
 occupation, Secretary Seward notified Spain that such a prece- 
 dent would "severely tend to disturb the harmonious relations" 
 between the United States and Spain, which attitude caused 
 Spain to give up the proposed "temporary occupation." 
 
 The probability of just such a prolonged occupation, and the 
 indefinite postponement of the claims of United States citizens, 
 arose in the case of San Domingo in 1905. A protocol had been 
 arranged by President Roosevelt with the government of San 
 Domingo, by which the United States was to take charge of the 
 customs revenue of San Domingo, and pay a percentage for the 
 support of the government of that country, the balance to be paid 
 to the creditors of other countries, including those of the United 
 States. This protocol with an explanatory message ^ in its support 
 was sent to the United States Senate February 7th, 1905. While 
 this was of course an extension of the Monroe Doctrine to a point 
 that might fairly be said to make it a new doctrine, yet there had 
 been at least partial precedents for this course of action. When the 
 English, Spanish, and French governments were planning to take 
 forcible measures, including temporary occupation of territory, to 
 collect claims, etc., against Mexico in 1861, Mr. Seward proposed, in 
 his note to the powers, dated December 4, that the United States 
 might make a treaty with Mexico by which we should guaran- 
 tee satisfaction of all just money claims and secure repayment 
 to ourselves. A loan of $11,000,000 was suggested. ^ As secu- 
 rity, the American government was to have a mortgage on all 
 the public lands, minerals, etc., of Lower California and Chi- 
 huahua and other provinces bordering on the United States. 
 A commission, composed of three Mexicans and two Americans, 
 was to assume the administration of the lands, etc.^ It proved, 
 however, that money payment alone was not satisfactory to the 
 
 1 Presidential Messages, 1905; House Documents 59th Cong., 1st 
 Sess., vol. i, pp. 334-342. Protocol; Ibid., pp. 342-343. 
 
 ^ Seward to Adams, June 7, 1862. 
 
 ^ Lord Lyons and Earl Russell, Dec. 31, 1861, p. 418; Exec. Doc. 
 1861-2, vol. viii; Jas. Corwin to Seward, Mar. 24, 1862. 
 
THE MONROE DOCTRINE 341 
 
 powers, and when the treaty came to the United States Senate, 
 it was found to be of no use, and was rejected on resolution of 
 February 25, 18G2. 
 
 Again, in 1880, Secretary Evarts, and in the next year Sec- 
 retary Blaine, suggested that the United States would guaran- 
 tee to the powers seeking money compensation from Venezuela, 
 monthly payments to satisfy the claims of the creditor nations. 
 In case of default in the installments, "the agent placed there 
 by the United States and acting as trustee for the creditor 
 nations, shall be authorized to take charge of the custom-houses 
 of Laguayra and Puerto Cabello, and receive from the monthly 
 receipts a sufficient sum to pay the stipulated amounts." 
 
 The protocol signed by President Roosevelt, which amounted 
 to a voluntary assignment by San Domingo to the United States 
 for the benefit of creditors, was not at first accepted by the Senate. 
 President Roosevelt as a modus vivendi appointed agents under an 
 agTeement with the government of San Domingo, and to the satis- 
 faction of the creditors, by which these agents should collect 
 the revenues under the general scheme as proposed in the pro- 
 tocol. After two years' delay, the United States Senate ratified 
 the protocol and the treaty was duly signed February 8, 1907.^ 
 
 Forcible Collection of Debts Regulated at the 
 Hague Peace Conference 
 
 A convention respecting the limitation of the employment 
 of force for the recovery of contract debts was adopted at the 
 Hague Peace Conference, October 18, 1907. This provided in 
 general that "recourse to armed force for the recovery of con- 
 tract debts claimed from the government of one country by the 
 government of another country as being due to its naturals" 
 should not be had unless "the debtor state refuses or neglects 
 to reply to an ofl'er of arbitration, or after accepting the offer 
 prevents any compromise from being agreed on, or after arbi- 
 tration fails to submit to the award." This, it is believed, is a 
 
 1 Treaty accepted and secrecy removed Feb. 25, 1907. Senate Journal, 
 59th Cong., 2d Sess., p. 353. 
 
342 RICHARD HENRY DANA, JR. 
 
 great step in advance towards averting armed intervention.^ Dr. 
 Don Louis Maria Drago, Argentine minister for foreign afifairs, 
 brought this plan to the attention of the United States at the 
 time of Venezuela's difficulties in 1902. Alexander Hamilton 
 had early given definite form to the same principle. This plan, 
 called " Drago doctrine," was brought to the attention of the 
 Hague Peace Conference of 1907, by a resolution adopted at Rio 
 de Janeiro, the year before. ^ 
 
 The United States Senate, on April 17, 1908, ratified this 
 convention, with the understanding that "recourse to the per- 
 manent court for this purpose can be had only by agreement 
 thereto through general or special treaties of arbitration here- 
 tofore or hereafter concluded by the parties in dispute." 
 
 The Hague Convention of 1907 established a permanent court 
 of arbitration for the settlement of international disputes, in 
 which "neither honor nor vital interests are involved." This 
 was ratified by the United States Senate April 2, 1908, subject 
 to reserves of declaration.^ 
 
 General Conclusions 
 
 From the above precedents, since Mr. Dana's note was written, 
 the Monroe Doctrine seems to include the following principles : 
 
 No foreign country may establish in an American country, 
 and maintain by force, a monarchial form of government con- 
 trary to the wishes of the inhabitants of that American country. 
 This is clearly within the original doctrine. A forcible increase 
 of territory in America by a European country may be resisted, 
 and if there is reason to apprehend that such an increase is being 
 made in a boundary dispute, the United States may demand 
 that the whole dispute be arbitrated. Though this may follow 
 
 1 See Texts of the Peace Conferences of the Hague, 1899-1907, by 
 James Brown Scott, pp. 193-198. 
 
 - See the resolution adopted at the International Conference of 
 American States, held at Rio de Janeiro, July 21 to Aug-. 26, 1906, Sen. 
 Doc. No. 365, 59th Congress, 2d Sess., p. 14. (Senate, 5073, 1906-7.) 
 
 ^ See Texts of the Peace Conferences of the Hague, 1899-1907, by 
 James Brown Scott, p, 193. 
 
THE MONROE DOCTRINE 343 
 
 as a logical consequence from the original message of President 
 Monroe, it is not explicitly within it. The United States is not 
 to protect American countries from their own misconduct against 
 other nations. Foreign nations may by force temporarily occupy 
 American countries for the purpose of collecting claims. This 
 has been modified by the Hague treaties requiring arbitration, 
 or at least offers of arbitration, as to the amount of the claims, 
 before such forcible occupation. European occupation of terri- 
 tory in America for the purpose of collecting claims, which, 
 though declared to be "temporary," is likely to be for a long and 
 indefinite period, the United States may resist. 
 
 How foreign countries may collect large claims against an im- 
 poverished country, which would require too long and inde- 
 finite occupation, has been provided for by President Roosevelt's 
 San Domingo plan, which in that island has secured peace, 
 stopped revolutions, and contented all its creditors. This, though 
 a natural corollary of the already somewhat extended Monroe 
 Doctrine, was clearly not in the original. Since Mr. Dana's note 
 was written, the Monroe Doctrine, with President Cleveland's 
 interpretation of It, has received the "sanction" of Congress in 
 the Venezuelan boundary dispute in 1895, and, together with 
 President Roosevelt's corollary, it has received the "sanction" 
 of the United States Senate in the San Domingo treaty of 1907. 
 
 Authorities 
 See Moore's Int. Laic Dig. (1906), vi, 368-604; Oppenheim's Int. 
 Law, London (1905), i, 66, 188-191; Elements Int. Law, G. B. Davis 
 (1908), 110-115; Woolsey's Int. Law (1878), § 180; Wharton's Int. Law 
 Dig., §§ 57-65, 150 f., 287; Tucker's Monroe Doctrine (1903); Halleck's 
 Int. Laio (1908), i, 92, 95; T. J. Lawrence's hit. Laio (1895), 131, 248- 
 251; Reddaway's Monroe Doctrine, England (1898); T. B. Edington's 
 Monroe Doctrine (1904); Phillimore's Int. Law; A. A. Stockton's Monroe 
 Doctrine and Other Addresses (1898); What is the Monroe Doctrine? 
 Filley (1905); Prof. Hugo Miinsterberg's The Americans, 221-225; "San 
 Domingo Question," F. G. Newlands, North American Review, June, 
 1905; G. S. Boutwell's The Venezuelan Question and the Monroe Doc- 
 trine (1896) ; A. C. Coolidge (in his United States as a World Power, 1908) ; 
 
344 RICHARD HENRY DANA JR. 
 
 Monroe Doctrine, Am. Hist. Leaflets, N. Y., No. 4, 1892; " Genesis of the 
 Monroe Do trine," W. C. Ford, "J. Q. Adams and his Connection with 
 the Monroe Doctrine," Proceedings Mass. Hist. Sac, Jan. 1902; Hen- 
 derson (in his Diplomatic Questions, 1901), Monroe Doctrine; J. A. Kas- 
 son's Monroe Doctrine, etc. (1904); J. F. McLaughlin, The Monroe 
 Doctrine (1896); J. B. McMaster (1896) (in his With the Fathers); A. T. 
 M.ahan, Naval Administration and Warfare (1908); Theodore Roosevelt, 
 American Ideals (1897); Grover Cleveland, Presidential Problems, 
 Venezuelan Boundary Question; Wilson and Tucker, International Law 
 (1910), 83, 101. 
 
XV 
 
 ARGUMENT BEFORE THE HALIFAX FISH- 
 ERY COMMISSION 
 
 [The argument of Mr. Dana before the Fishery Commission 
 at HaUfax, Nova Scotia, 1877, should not be published without 
 disclosing the "secret history" of the Commission and of its 
 "astounding" award. In the biography of Mr. Dana, from 
 which I have just quoted, Mr. Adams says: "The time for that 
 has not yet come"^ [1890]; but now, a whole generation after 
 the award, the time may well be said to have arrived if it is ever 
 to come, and that it should ever come is plain, because to tell the 
 secret history is not merely to regret the unalterable past. The 
 fisheries dispute still remains an unsettled cause of irritation 
 between Great Britain and the United States, and the astound- 
 ing award must be revised before a basis of permanent agree- 
 ment can be reached. 
 
 By the Treaty of 1818, Great Britain had a right to exclude 
 United States vessels from fishing within three miles of her coasts 
 in a great part of her North American domain, and the United 
 States always had a right, of course, to place duties, and pro- 
 hibitive duties if she wished, on the importation of any fish or 
 fish-products. 
 
 In 1871, the United States and Great Britain made the Treaty 
 of Washington. This was mainly concerned with the celebrated 
 Alabama Claims, but also included the fisheries; and by the im- 
 portant clauses relating to the latter, the United States vessels 
 were to have a right to fish within the three-mile limit from which 
 they were excluded by the Treaty of 1818, and Canadians were 
 
 ^ This note has been submitted to and approved by the gentlemen 
 who were secretaries of the two leading counsel for the United States 
 at the time of the Halifax Arbitration. 
 
346 RICHARD HENRY DANA, JR. 
 
 to be allowed to bring their fish and fish-products into the United 
 States free of duty. This arrangement was to last for twelve 
 years, and as much longer as both parties to the treaty were 
 satisfied. 
 
 In drawing this Treaty of Washington in 1871, it was found 
 impossible to agree upon the relative value of these two conces- 
 sions; and it was therefore provided that a special commission 
 should be appointed, later called the Halifax Commission, to 
 appraise them. It was hoped, to use the words of Mr. Thompson, 
 the chief counsel for Great Britain, in his opening argument, 
 that the award might be "the basis upon which future and more 
 lasting negotiations may be entered into, and so a source of con- 
 tinued national and local irritation be entirely removed." 
 
 The award was for $5,500,000, or at the rate of nearly half a 
 million a year. When the case was argued before the Halifax 
 Commission, five fishing seasons under the treaty had already 
 elapsed. The whole profit, on a most liberal scale, on all the 
 kinds of fish caught by vessels from the United States in or near 
 the three-mile limit in question, including all that were caught 
 within the Gulf of St. Lawrence during each of these five years, 
 was, on the average, not equal to one twentieth of the yearly 
 rate of the award, without offsetting anything at all for the right, 
 which the Canadians struggled so earnestly to secure as some- 
 thing of great value, of selling their fish free of import duties in 
 the United States. This Mr. William M. Evarts, Secretary of 
 State, made plain in his illuminating note on the award in his 
 official report to President Hayes. ^ 
 
 The Commission or Tribunal before which the case was ar- 
 gued consisted of one member representing the United States, 
 one representing Great Britain, each paid by his own govern- 
 ment, and a third, the referee or arbitrator, who was also the 
 President, and was paid one half by each government. The 
 decision was signed by the referee and the commissioner from 
 Great Britain, and was dissented from completely by the United 
 States commissioner. Unfortunately, no grounds or reasons 
 
 ^ Documents and Proceedings of the Halifax Commission, 1877; Ex. 
 Doc. 45th Cong., 2d Sess., No. 89, vol. i, pages vii-xiv. 
 
HALIFAX FISHERY COMMISSION 347 
 
 were given by the Commission to explain the "astounding" 
 award. 
 
 We come now to the secret histoiy. Mr. Dana, in a letter to 
 Mr. Evarts, dated Halifax, Nova Scotia, November 25, 1877, 
 written a few days after the award was made, says: "The bad 
 result I attribute entirely to the composition of the tribunal. 
 We have struggled against this and aimed at counteracting the 
 influences which we saw from the first were likely to be most 
 unfortunate." 
 
 As to the arbitrator, M. Maurice Delfosse, Mr. Dana de- 
 scribes him in this same letter as "a gentleman of fine feeling, 
 entirely inexperienced in anything like a judicial inquiry into 
 facts or the weighing of testimony, and by temperament and 
 constitution subject to the influence of a more robust temper 
 and powerful will, aided by great tact and sagacity." 
 
 In addition to that, M. Delfosse had the European notions 
 of judicial proceedings. 
 
 Unfortunately, the Treaty of Washington put the United 
 States in the attitude of debtor.^ As Mr. Dana said in the letter 
 of November 30, 1877, to Mr. Evarts : "The wording of the treaty 
 was against us. ... If the article had put the alternative to 
 the tribunal, which was the debtor, if either, so that our case 
 would have presented a demand on our part, we should have had 
 a far stronger position." 
 
 The United States then being a confessed debtor, the very 
 arguments of counsel and evidence of witnesses that tended to 
 show we owed nothing at all, or less than nothing, seemed to M. 
 Delfosse to be in the nature of very "ingenious" attempts at 
 evading officially declared responsibility, and doubtless had the 
 effect on his mind of discrediting our whole case. He seemed to 
 have had that European reverence for official statements later 
 exhibited in the first Dreyfus trial in France. He frequently 
 
 ^ The wording of the treaty was that the Halifax Commission was 
 to be appointed "to determine . . . the amount of any compensation 
 which in their opinion ought to be paid by the government of the United 
 States to the government of Her Britannic Majesty in return for the 
 privileges accorded." (Art. xxii.) 
 
348 RICHARD HENRY DANA, JR. 
 
 showed, in his conversation, that he thought cross-examination, 
 by which we exposed the weaknesses of the British testimony, 
 was a mere lawyers' trick to confuse witnesses. 
 
 As to the United States member of the tribunal, it should be 
 understood in the first place that it was of the utmost import- 
 ance that he should know the case thoroughly, be able to pre- 
 sent the statistics and arguments tellingly, and have a strong 
 personal attraction; because, in the conferences, he would have 
 the chance to get at exactly what misapprehensions might be in 
 the mind of the arbitrator, and correct them in conversation, 
 while the counsel, though they argued never so ably, had to ar- 
 gue at arm's length, and could only guess as to what might be 
 going on in the arbitrator's thoughts. Ex-Governor Clifford of 
 Massachusetts had been appointed our commissioner, but unfor- 
 tunately he died shortly before the case was opened, and another 
 man was put in his place. Of this American commissioner, whom 
 I shall call Mr. X, Mr. Dana in a letter to Mr. Evarts says : — 
 
 "I must speak freely in strict confidence. He has been worse 
 than useless. I have some notion that his powers (so to speak) 
 are diminished by years of sloth and heavy feeding. Whether 
 anything serious has happened to him, I do not know. I have 
 never been able to get from him anything that could be called 
 conversation; and when we have spoken about the case, I was 
 never satisfied whether he understood it or not. His first public 
 appearance was at a dinner given to us by the Bar, at which he 
 made two speeches, the last volunteered. The effect was about 
 an equal proportion of wonder and amusement. They were po- 
 lite about it, but evidently thought he was a strange fish. The 
 only explanation not impeaching his intellect was an excess of 
 champagne. At a dinner given by M. Doutre, he volunteered 
 a speech, where none was expected, which was worse than that 
 at the Bar dinner. It caused us great mortification. Just before 
 the decision, at a dinner by Sir A. Gait, he volunteered another 
 speech, which was so distressing to us that the dinner broke 
 up somewhat prematurely to save us the risk of another. You 
 know M. Delfosse well enough to understand that he not only 
 would have no confidences with such a man, but would prob- 
 
HALIFAX FISHERY COMMISSION 349 
 
 ably look upon him with disgust, while Sir A. Gait would adroitly 
 obtain a great if not mastering influence over him. During the 
 seventy-six days of our session, I do not remember that the pre- 
 sident ever turned to the right, where sat the United States mem- 
 ber, for conference, but invariably to the left, Sir A. G., and 
 addressed him frequently, while our member of the Court seemed 
 to make no attempt even to mingle in the conference. He com- 
 plained that we did not address ourselves to him. We felt it to 
 be true, for he was a great deal in a semi-somnolent state, and we 
 thought that he would be likely to agree with us so far as he 
 followed us. Incidental matters were sometimes settled by the 
 president and Sir A. G., or rather, under Sir A. G., without his 
 being looked to, — of course nothing of importance." 
 
 Mr. Dana further says that Mr. X's general influence with 
 M. Delfosse "was worse than nothing." It was on one of these 
 dinners that the American member stumbled over Sir Alexander 
 Gait's name, and called him "Sir Harker Dandy" and "Sir 
 Harker Dardy." 
 
 More than one eye-witness of the proceedings of the tribunal 
 described the Commission as follows. M. Delfosse looked bored. 
 Sir Alexander Gait, the English member, alert and attentive, 
 the American member asleep. 
 
 In a letter of November 30, 1877, to Mr. Evarts, Mr. Dana, 
 speaking of the failure of any assistance to M. Delfosse from 
 the American member, says as follows : ■ — 
 
 "The day after my letter to you of the 25th inst., I had an 
 interview with M. Delfosse. As all was over, he spoke freely 
 and complained that they received no aid from the U. States 
 member of the tribunal. He said that they had no word from 
 him during the taking of the testimony, which he was disposed 
 to ascribe to delicacy. After the evidence was in, he and Sir 
 A. G. both wished a conference, and Sir A. G. had them both 
 at dinner, and the subject was started, but with no results. Mr. 
 X had nothing to say. At the final conference, when Sir A. G. 
 was fully prepared with reasons, arguments, digested statistics, 
 etc., Mr. X had no arguments or suggestions, or statistics, but 
 only stood on his negative of all compensation." 
 
350 RICHARD HENRY DANA, JR. 
 
 In addition to that, Mr. X's clothing was untidy, his general 
 appearance slovenly, and he was careless and forgetful in his 
 tobacco-chewing practices; while M. Delfosse was a European 
 of immaculate dress and the neatest possible habits, and one who 
 was apt to judge of people by their appearance in these respects. 
 
 How such a man as Mr. X came to be appointed to such a 
 position, Mr. Dana told me, was an instance of the favoritism 
 of the "spoils system." Mr. X was a fellow townsman of United 
 States Senator Dawes, who secured the appointment, and Mr. 
 X "needed" the money comi3ensation. 
 
 As to the award, Mr. Dana says: "For myself I do not think 
 that the great body of testimony, brought forward on each side 
 with so much labor and expense, has been the basis of the de- 
 cision. I think the decision was diplomatic altogether, and based 
 upon mental operations which could have been gone through 
 with in substantially the same manner had there been nothing 
 beyond the two cases filed." 
 
 It seems to have been based on halving the revised British 
 demand, with a penalty attached. The original British demand 
 was for $14,800,000. This was reduced by the decision of the 
 tribunal that some of the items going to make up the total, as 
 stated in the official claim, related to matters not included within 
 the treaty. Cutting these out, the claim may well have been 
 reduced as Mr. Dana suggests, by "about one third," or to 
 $10,000,000. At the final conference of the Commissioners, ac- 
 cording to Mr. Dana's letter to Secretary of State, Mr. Evarts, 
 November 25, 1877: — 
 
 "M. Delfosse suggested as a compromise $4,500,000 [$500,000 
 less than half of $10,000,000]. It seems that when the Commis- 
 sioners came together to read the award to the agents and coun- 
 sel, M. Delfosse was induced by Sir A. Gait, we do not know 
 why or how, to add one million. I suppose it to have been on 
 the suggestion that Mr. X's refusing to approach nearer to a 
 compromise and raising the question of validity^ entitled the 
 British side to the utmost." 
 
 Mr. X took the position that no award was binding unless unani- 
 mous. 
 
HALIFAX FISHERY COMMISSION 351 
 
 In Mr. Dana's letter to Mr. Evarts, November 30, after M. 
 Delfosse "spoke freely" of the award, he states: — 
 
 "M. Delfosse further said that it was again and again ex- 
 plained to Mr. X that his (M. Delfosse's) proposal for four and 
 a half millions, to which Sir A. Gait assented, was conditional 
 upon its being accepted by Mr. X and was to go for nothing 
 otherwise. . . . This was to explain their apparent advance 
 from $4,500,000 to $5,500,000." 
 
 That is, the award was to be half a million less than half the 
 British claim if the American commissioner assented, and half 
 a million more than half if he did not. 
 
 During the course of the hearings at Halifax, though not offi- 
 cially argued by counsel for Great Britain, it was frequently 
 stated in conversation and put before M. Delfosse that the award 
 of the Geneva Arbitration for the Alabama Claims had been 
 too large, and that it was no more than fair to offset this by a 
 liberal award to England in the fishery case, which was a part 
 of the same treaty. M. Delfosse, in conversation in Boston after 
 the award, in trying to justify it, laughingly remarked that it was 
 no more than fair, even if it were somewhat too large, as Great 
 Britain had paid too much for the Alabama Claims. M. Del- 
 fosse also expressed the general view that a small award would 
 not be becoming to the dignity of an international tribunal in 
 an important question between two great and wealthy countries. 
 
 Finally, it has been stated that M. Delfosse was influenced 
 by his desire to be appointed as minister from his own gov- 
 ernment to Great Britain. Neither my father, nor any of those 
 that I have seen connected with the case, have ever for a moment 
 believed that M. Delfosse consciously gave in to that influence, 
 though it was perfectly well known that he entertained that 
 ambition; but with a man without judicial training, the indirect 
 and unconscious influences may have told in the decision. 
 
 It may be interesting to the reader to know what the results 
 of so great an award have been. In the words of the Secretary 
 of State, Mr. William M. Evarts: "The question between the 
 two countries is of much more serious import than the . . . 
 money payment involved. The subject of valuation will remain 
 
352 RICHARD HENRY DANA, JR. 
 
 as an occasion of controversy after the brief treaty period cov- 
 ered by the award has expired."^ 
 
 As to the hope of the chief counsel for Great Britain that the 
 award might be a "basis upon which future and more lasting 
 negotiations may be entered into, and so a source of continued 
 national and local irritation may be entirely removed," the joint 
 arrangement of free trade in fish and free fishing within the 
 three-mile limit was brought to an end by the United States 
 at the first possible moment, namely, in 1883. The United 
 States could not, of course, go on paying at such a rate. The 
 Canadians are excluded from selling their fish in the United 
 States, their chief market, and the old, irritating efforts at ex- 
 clusion from the three-mile limit by the British and at avoiding 
 this exclusion by the American fishermen continue to this day. 
 To the more far-sighted of the English statesmen, the largeness 
 of the award, while a temporary triumph, was in the end a mis- 
 fortune. M. Delfosse was not made Minister to England. 
 
 How, in the Treaty of 1818, we ever came to abandon the 
 right of fishing within the three-mile limit, for which John 
 Adams so earnestly and successfully contended in making the 
 treaty of peace with Great Britain at the close of the Revolution- 
 ary War; why the Treaty of 1818 was so carelessly worded in its 
 application to the United States interests; and why we came to 
 concede so much more than was fair in the Treaty of 1871, are 
 questions worth asking, and Mr. Dana's answer may be worth 
 knowing. He believed that these were mistakes, and that they 
 arose because we did not have trained diplomats and permanent, 
 high-grade secretaries in our State Department, while in the 
 Foreign Ofiice and the diplomatic corps of Great Britain, they 
 had able men, perhaps no more able than some of our negotia- 
 tors, but long in the service, with practically permanent tenure, 
 thoroughly familiar with the whole history of such matters, 
 skilled in the use of diplomatic language and international law 
 and able to take advantage of our want of knowledge. We suffer, 
 equally, in all our various departments, as is now becoming 
 
 ^ Halifax Commission, vol. 10, page xiv. 
 
HALIFAX FISHERY COMMISSION 353 
 
 more and more apparent, for lack of just such permanent, well- 
 trained assistant secretaries. 
 
 Of course, it may be said of the Treaty of 1818 that our mili- 
 tary weakness was such that we could not get all we wanted; 
 but it is doubtful if our representatives knew the value of what 
 they were giving up and the strength of our original claims. The 
 wording of this treaty has now brought us to the necessity of 
 making the new, recent treaty of April 4, 1908, with Great Brit- 
 ain, by which certain questions regarding the construction of the 
 Treaty of 1818 have just been submitted to the Hague Tribunal. 
 The more important questions were, whether the right of the in- 
 habitants of the United States to take fish on the coasts of New- 
 foundland, the Magdalen Islands and Labrador, from which we 
 were not excluded by the Treaty of 1818, "in common with the 
 subjects of" Great Britain, is subject to regulations as to catch- 
 ing fish and as to port dues, made without the consent of the 
 United States, by Great Britain, Canada and Newfoundland; ^ 
 whether the inhabitants of the United States, while exercising 
 these liberties, have a right to employ as members of their fish- 
 ing crews persons not inhabitants of the United States;^ and 
 finally, from where must we measure the "three marine miles 
 ofiF any of the coasts, bays, creeks or harbors" on the prohibited 
 coasts of the Canadian shores? Two of the arguments in favor 
 of the United States contention were, — that in all the presenta- 
 tions of the case at Halifax, the three-mile limit was assumed 
 to be from the shores, or from lines of headlands that are not 
 over six miles apart; and that the award was so large that the 
 right to diminish the value of taking fish by regulation of sea- 
 sons and methods could not have been taken into account, as 
 in fact it was not urged in argument.^ 
 
 ^ The Hague Tribunal on Sept. 7, 1910, decided that no port dues 
 but " reasonable regulations " could be imposed without the consent 
 of the United ^^States, but their reasonableness, necessity and fairness 
 should be submitted to a special expert commission. 
 
 ^ This right to employ persons not inhabitants of the United States 
 is sanctioned by the Hague Tribunal. 
 
 ^ The decision on this is against the United States. The award 
 
354 RICHARD HENRY DANA, JR. 
 
 In considering Mr. Dana's argument, it should be remembered 
 that Judge Foster and Mr. Trescot had already argued for the 
 United States, and Mr. Dana left to them certain topics on which 
 he hardly touched at all.] 
 
 Argument on Behalf of the United States 
 
 May it ^please your Excellency and your Honors, — 
 Your legislature of this Province has set apart for 
 our use this beautiful hall; and while my friend and 
 associate, Mr. Trescot, saw in the presence of the 
 portrait of His Majesty George III, which looks down 
 upon us from the walls, an encouragement for the 
 settlement of the matter confided to us, because that 
 king supposed it settled more than a hundred years 
 ago, I confess that the presence of that figure has 
 been to me throughout most interesting and even 
 pathetic. It was the year he ascended the throne, 
 that the French were finally driven from North Amer- 
 ica, and that it all became British America, from the 
 southern coast of Georgia up to the North Pole, and 
 all these islands and peninsulas which form the Gulf 
 of St. Lawrence passed under his sceptre. And what a 
 spectacle for him to look down upon now, after a hun- 
 dred years! A quiet assembly of gentlemen, without 
 parade, without an armed soldier at the gate, settling 
 the vexed question of the fisheries, which in former 
 times and under other auspices would have been cause 
 enough for war. And settling them between whom ? 
 Between his old thirteen colonies — now become a 
 republic of forty millions of people, bounded by seas 
 and zones — and his own empire, its sceptre still held 
 
 recommends definite lines based on certain enumerated coast points, 
 which exclude us from certain large bays, though their entrances are 
 more than six miles broad. 
 
HALIFAX FISHERY COMMISSION 355 
 
 in his own line, by the daughter of his own son, more 
 extended, and counting an immensely larger popula- 
 tion than when he left it, showing us not only the mag- 
 nitude and increase of the Republic, but the stability, 
 the security, and the dignity of the British Crown. 
 
 Yes, gentlemen of the Commission, when he as- 
 cended the throne, and before that, when his grand- 
 father, whose portrait also adorns these walls, sat 
 upon the throne of England, this whole region was 
 a field of contest between France and Great Britain. 
 It was not then British North America. Which power 
 should hold it, with these islands and peninsulas and 
 these fisheries adjacent to and about it, depended 
 upon the issue of war, and of wars one after another. 
 But Great Britain, holding certain possessions here, 
 claimed the fisheries, and made large claims, accord- 
 ing to the spirit of that day, covering the Banks of 
 Newfoundland, and the other banks, and the whole 
 deep-sea fishery out of sight of land, and also up to 
 the very shores, within hailing distance of them, 
 without any regard to a geographical limit of three 
 miles, which is a very modern invention. That con- 
 test was waged, and the rights in these islands and 
 these fisheries settled by the united arms of Great 
 Britain and of New England, and largely, most 
 largely, of Massachusetts. Why, Louisburg, on Cape 
 Breton, held by the French, was supposed to be the 
 most important and commanding station, and to 
 have more influence than any other upon the des- 
 tinies of this part of the country. Its reduction was 
 ordered by the Legislature of Massachusetts. And, 
 Mr. President, it was a force of between three and 
 four thousand Massachusetts men, under Pepperell, 
 and a few hundred from the other colonies, with one 
 
356 RICHARD HENRY DANA, JR. 
 
 hundred vessels, that sailed to Louisburg, invested 
 and took it for the British Crown, in trust for Great 
 Britain and her colonies. Gridley, who laid out the 
 fortifications at Bunker Hill, and Prescott, who de- 
 fended them, were in the expedition against Louis- 
 burg, and the artillery was commanded by Dwight, 
 maternal ancestor of our friend, Judge Foster. And 
 wherever there was war between France and England 
 for the possession of this continent, or any part of 
 it, or these islands and these fisheries, the militia and 
 volunteers of Massachusetts fought side by side with 
 the regulars of Great Britain. They fought under 
 Wolfe at Quebec, under Amherst and Howe at Ticon- 
 deroga; and, even at the confluence of the Alleghany 
 and Monongahela, Washington saved the remnant 
 * of Braddock's command. We followed the British 
 arms wherever they sought the French arms. The 
 soldiers of Massachusetts, accompanying the British 
 regulars to the sickly sugar-islands of the West Indies, 
 lay side by side on cots in the same fever-hospitals, 
 and were buried in the same graves. And if any of 
 you shall visit the Old Country again, and your foot- 
 steps lead you to Westminster Abbey, you will find 
 there a monument to Lord Howe, who fell at Ticon- 
 deroga, erected in his honor by the Province of Massa- 
 chusetts. And there let it stand! an emblem of the 
 fraternity and unity of the olden times, and a proof 
 that it was together, by joint arms and joint enter- 
 prise, blood and treasure, that all these Provinces, 
 and all the rights appertaining and connected there- 
 with, were secured to the Crown and the Colonies! 
 
 I may as well present here, gentlemen of the Com- 
 mission, as at any other time, my view respecting 
 
HALIFAX FISHERY COMMISSION 357 
 
 this subject of the right of deep-sea fishery. The right 
 to fish in the sea is in its nature not real, as the com- 
 mon law has it, nor immovable, as termed by the 
 civil law, but personal. It is a liberty. It is a fran- 
 chise, or a faculty. It is not property, pertaining to 
 or connected with the land. It is incorporeal. It is 
 aboriginal. ... I speak of the free-swimming fish of 
 the ocean, followed by the fishermen through the deep 
 sea; not of the crustaceous animals or any of those 
 that connect themselves with the soil under the sea, 
 or adjacent to the sea, nor do I speak of any fishing 
 which requires possession of the land or any touching 
 or troubling the bottom of the sea. I speak of the 
 deep-sea fishermen who sail over the high seas, pur- 
 suing the free-swimming fish of the high seas. Against 
 them, it is a question not of admission, but of exclu- 
 sion. These fish are not property. Nobody owns 
 them. They . . . belong, by right of nature, to those 
 who take them, and every man may take them who 
 can. It is a totally distinct question whether, in taking 
 them, he is trespassing upon private property, the 
 land or park of any individual holder. . . . The fish- 
 erman who drops his line into the sea creates a value 
 for the use of mankind, and therefore his work is 
 meritorious. It is, in the words of Burke, "wealth 
 drawn from the sea"; but it is not wealth until it is 
 drawn from the sea. 
 
 I am willing to put at stake whatever little reputa- 
 tion I may have for acquaintance with the jurispru- 
 dence of nations (and the less reputation, the more 
 important to me) to maintain this proposition, that 
 the deep-sea fisherman, pursuing the free-swimming fish 
 of the ocean with his nety or his leaded line, not touching 
 
358 RICHARD HENRY DANA, JR. 
 
 shores or troubling the bottom of the sea, is no trespasser, 
 though he approach within three miles of a coast, by 
 any established, recognized law of all nations. . . . 
 The Treaty between Great Britain and France of 
 1839, which provides for a right of exclusive fishery 
 by the British on the British side of the Channel, and 
 by the Ifrench on the French side of the Channel, 
 
 t 
 
 each of three miles, and measures the bays by a ten- 
 mile line, is entirely a matter of contract between 
 the two nations. The Treaty begins by saying, not 
 that each nation acknowledges in the other the right 
 of exclusive fishery within three miles of the coast; 
 nothing of the kind. It begins by saying, " It is agreed 
 between the two nations that Great Britain shall have 
 exclusive fishery within three miles of the British 
 coast, and that the French shall have exclusive fishery 
 within three miles of the French coast," and then it 
 is further agreed that the bays shall be measured by 
 a ten-mile line. All arbitrary alike, all resting on 
 agreement alike, without one word which indicates 
 that the law of nations any more gives an exclusive 
 right to these fisheries for three miles from the coasts, 
 than it does to measure the bays by ten miles. In 
 the time of Queen Elizabeth this matter seemed to 
 be pretty well understood in England. Her Majesty 
 sent a commission, an embassy, to Denmark, on the 
 subject of adjusting the relations between the two 
 countries, and among the instructions given the am- 
 bassadors were these : — 
 
 "And you shall further declare that the Lawe of 
 Nations alloweth of Fishing in the sea everywhere; 
 as also of using ports and coasts of princes in amitie 
 for traffique and avoidinge danger of tempests; so 
 that if our men be barred thereof, it should be by some 
 
HALIFAX FISHERY COMMISSION 359 
 
 contract. We acknowledge none of that nature; but 
 rather, of conformity with the Lawe of Nations in 
 these respects, as declaring the same for the removing 
 of all clayme and doubt; so that it is manifest, by 
 denying of this Fishing, and much more, for spoyling 
 our subjects for this respect, we have beej|Muajured 
 against the Lawe of Nations, expresslie de^^Jd by 
 contract as in the aforesaid Treaties, and the King's 
 own letters of '85." 
 
 Though possession of the land close to tne sea, says 
 this remarkable letter of instructions, "may yield 
 some oversight and jurisdiction, yet use not princes 
 to forbid passage or fishing, as is seen by our law of 
 England." There is much more to the same effect. 
 So that whatever claim of jurisdiction over the sea a 
 neighboring nation might make, whatever claim to 
 property in the soil under the sea she might make, 
 it was not the usage of princes to forbid passage, 
 innocent passage, or the fishing and catching of the 
 free-swimming fish, wherever they might be upon the 
 high seas. 
 
 I wish particularly to impress upon your Honors, 
 that all the North British Colonies were in possession 
 and enjoyment of the liberty of fishing over all the 
 north-western Atlantic, its gulfs and bays. There is 
 no word indicating the existence of either a three- 
 mile line of exclusion, or of an attaching the right of 
 fishing to the geographical position of the colony. 
 No, gentlemen, the Massachusetts fisherman who 
 dropped his leaded line by the side of the steep coast 
 of Labrador, or within hail of the shore of the Mag- 
 dalen Islands, did it by precisely the same right that 
 he fished in Massachusetts Bay, off Cape Cod or 
 
360 RICHARD HENRY DANA, JR. 
 
 Cape Ann. Nobody knew any difference in the 
 foundation or the test of such rights, in those days. 
 It was a common heritage, not dependent upon 
 poHtical geography. As I have said, it was con- 
 quered by the common toil, blood and treasure, and 
 held a^^ common right and possession. 
 
 c 
 
 At The close of the [Revolutionary] war, the Treaty 
 of 1783 was made. Now, at the time when the Treaty 
 of 1783 was made. Great Britain did not claim to have 
 conquered America, or to have taken from us by mili- 
 tary force any of our rights ; and the consequence was 
 that in framing the Treaty of 1783, while we altered 
 by common consent some of the boundary lines, none 
 by right of conquest, it was declared that the people 
 of the United States shall "continue to enjoy un- 
 molested the right to take fish of every kind on the 
 British banks, and all other banks of Newfoundland; 
 also in the Gulf of St. Lawrence, and all other places 
 in the sea where the inhabitants of both countries 
 used at any time heretofore to fish." What could be 
 stronger than that.^ It was an acknowledgment of a 
 continued right possessed long before. And if any 
 question of its construction arose, it appealed to what 
 they had been heretofore accustomed to do; "where 
 the inhabitants of both countries used at any time 
 heretofore to fish." 
 
 How was it construed by British statesmen .^^ Is 
 there any doubt about it? I take it my brethren of 
 the Dominion bar will consider Lord Loughborough 
 good authority. He said these words in the House 
 of Lords respecting the fishery clause of the Treaty: 
 " The fisheries were not conceded, but recognized as a 
 right inherent in the Americans, which, though no longer 
 
HALIFAX FISHERY COMMISSION 361 
 
 British subjects^ they are to continue to enjoy unmo- 
 lested.'^ The same thing, substantially, was said by 
 Lord North, who had been, we are told now by his 
 biographers, the unwilling, but certainly the sub- 
 servient instrument, in the hands of his king, for try- 
 ing to deprive us of this, as well as our ot^^ights. 
 We then did continue to enjoy them, as we^^Jfrom 
 1620 down. We had as much right to them as the 
 British Crown, because it was our bow and our spear 
 that helped to conquer them. Then came the war of 
 1812; and we had enjoyed the fisheries freely, without 
 geographical limit, down to that time. The war of 
 1812 certainly did not result in the conquest of Amer- 
 ica, either maritime or upon the land. It was fought 
 out in a manly way between two strong people, with- 
 out any very decided result; but after the war, in 
 1814, . . . the parties could not agree [as to the fish- 
 eries], and it went on in that way until 1818; and 
 then came a compromise, and nothing but a com- 
 promise. The introduction to the Treaty of 1818 says: 
 "Whereas differences have arisen respecting the lib- 
 erty claimed by the United States and inhabitants 
 thereof to take, dry and cure fish in certain coasts, 
 harbors, creeks and bays of His Majesty's dominions 
 in America, it is agreed between the high contracting 
 parties." It is all based upon "differences," and all 
 "agreed." 
 
 But England was a powerful nation. She fought 
 us in 1812 and 1814 with one hand, — I acknowledge 
 it, though it may be against the pride of American 
 citizens, — while she was fighting nearly all Europe 
 with the other; but she was now at peace. Both 
 nations felt strong; both nations were taking breath 
 
362 RICHARD HENRY DANA, JR. 
 
 after a hard conflict, and it was determined that 
 there should be an adjustment; and there was an 
 adjustment, and it was this. Great Britain tacitly 
 waived all claim to exclude us from any part of the 
 high seas. She expressly waived all right to exclude 
 us fro^^he coasts of Labrador, from Mount Joly, 
 northj^^o and eastward indefinitely, through those 
 tumbling mountains of ice, where we formerly "pur- 
 sued our gigantic game." She expressly withheld all 
 claim to exclude us from the Magdalen Islands, and 
 from the southern, western, and northern shores of 
 Newfoundland; and, as to all the rest of the Bay of 
 St. Lawrence and the coasts of Nova Scotia and New 
 Brunswick, we agreed to submit to her claim to ex- 
 clude us. So that it stood thus: that, under that 
 Treaty, and only under that Treaty, we admitted 
 that Great Britain might exclude us, for a distance 
 of three miles, from fishing in all the rest of her pos- 
 sessions in British North America, except those where 
 it was expressly stipulated she should not attempt 
 to do it. So she had a right to exclude us for a dis- 
 tance of three miles from the shores of Cape Breton, 
 Prince Edward Island, Nova Scotia, a portion of New- 
 foundland, and New Brunswick, and what has now 
 become the Province of Quebec, while she could not 
 exclude us from the coast of Labrador, the Magdalen 
 Islands, and the rest of Newfoundland. There was 
 the compromise. We got all that was then thought 
 useful, in the times of cod-fishing, with the right to 
 dry nets and cure fish wherever private property was 
 not involved. The Treaty of 1818 lasted until 1854, 
 — thirty-six years. So we went on under that com- 
 promise, with a portion of our ancient rights secured 
 and another portion suspended, and nothing more. 
 
HALIFAX FISHERY COMMISSION 363 
 
 Great changes took place in that period. The mack- 
 erel fishery rose into importance. Your Honors have 
 had before you the interesting spectacle of an old man 
 who thinks that he was the first who went from Mas- 
 sachusetts into this Gulf and fished for mackerel, in 
 1827, or thereabouts. He probably was. But mack- 
 erel-fishing did not become a trade or busin'l|s until 
 considerably after 1830, when the catch of mackerel 
 became important to us as well as to the Provinces. 
 
 But there were great difficulties attending the exer- 
 cise of this claim of exclusion — very great difficul- 
 ties. There always have been, there always must be, 
 and I pray there always shall be such, until there be 
 free fishing as well as free trade in fish. They put 
 upon the stand Capt. Hardinge, of Her Majesty's 
 navy, now or formerly, who had taken an active part 
 in superintending these fisheries and driving off the 
 Americans. We asked him whether the maintenance 
 of this marine police was not expensive. He said 
 that it was expensive in the extreme, that it cost 
 £100,000 — I believe that was the sum named. He 
 did not know the exact amount, but his language was 
 quite strong as to the expensiveness of excluding the 
 Americans from these grounds, of maintaining these 
 cruisers. But it also brought about difficulties be- 
 tween Great Britain and her Provinces. The Pro- 
 vincial authorities, on the 12th of April, 1866, after 
 this time (but they acted throughout with the same 
 purpose and the same spirit), undertook to say that 
 every bay should be a British private bay which was 
 not more than ten miles in width; following no pre- 
 tence of international law, but the special treaty 
 between Great Britain and France; and afterwards 
 they gave out licenses for a nominal sum, as they 
 
364 RICHARD HENRY DANA, JR. 
 
 said, for the purpose of obtaining a recognition of 
 their right. They did not care, they said then, how 
 much the Americans fished within the three miles, 
 but they wished them to pay a "nominal sum for a 
 license," as a recognition of the right. Well, the 
 "nominal sum" was fifty cents a ton; but by and by 
 the Copnial Parliament thought that nothing would 
 be a "nominal sum" unless it was a dollar a ton, and 
 at last they considered that the best possible "nomi- 
 nal sum" was two dollars a ton. 
 
 But Her Majesty's government took a very differ- 
 ent view of that subject, and wherever there has been 
 an attempt to exclude American fishermen from the 
 three-mile line, there has been a burden of expense 
 on Great Britain, a conflict between the Colonial 
 Department at London and the Provincial authori- 
 ties here, — Great Britain always taking the side of 
 moderation, and the Provincial Parliaments the side 
 of extreme claim and untiring persecution. Then 
 there was a difiiculty in settling the three-mile line. 
 What is three miles? It cannot be measured out, as 
 upon the land. It is not staked out or buoyed out. 
 It depends upon the eye-sight and judgment of inter- 
 ested men, acting under every possible disadvantage. 
 A few of the earlier witnesses called by my learned 
 friends for the Crown undertook to say that there was 
 no difiiculty in ascertaining the three-mile line; but 
 I happened to know better, and we called other wit- 
 nesses, and at last nobody pretended that there was 
 not great difficulty. Why, for a person upon a vessel 
 at sea to determine the distance from shore, every- 
 thing depends upon the height of the land he is look- 
 ing at. If it is very high, it will seem very much nearer 
 than if it is low and sandy. The state of the atmos- 
 
HALIFAX FISHERY COMMISSION 365 
 
 phere affects it extremely. A mountain side on the 
 shore may appear so near in the forenoon that you 
 feel as if you can almost touch it with your fingers' 
 ends, while in the afternoon it is remote and shadowy, 
 too far altogether for an expedition with an ordinary 
 day's walk to reach it. Now, every honest mariner 
 must admit that there is great difficulty in determin- 
 ing whether a vessel is or is not within three miles 
 of the shore, when she is fishing. But there is, further, 
 another difficulty. "Three miles from the shore," — 
 what shore? When the shore is a straight or curved 
 line, it is not difficult to measure it; but the moment 
 you come to bays, gulfs, and harbors, then what is 
 the shore .f^ The headland question then arose, and 
 the Provincial officials told us, — the Provinces by 
 their acts, and the proper officers by their proclama- 
 tions, and the officers of their cutters, steam or sail, 
 — told our fishermen upon their quarter-decks, that 
 "the shore" meant a line drawn from headland to 
 headland, and they undertook to draw a line from the 
 North Cape to the East Cape of Prince Edward 
 Island, and to say that "the shore" meant that line; 
 and then they fenced off the Straits of Northumber- 
 land; they drew another line from St. George's to 
 the Island of Cape Breton; they drew their headland 
 lines wherever fancy or interest led them. And not 
 only is it true that they drew them at pleasure, but 
 they made a most extreme use of that power. We 
 did not suffer so much from the regular navy, but the 
 Provincial officers, wearing for the first time in their 
 lives shoulder-straps and put in command of a vessel, 
 "dressed in a little brief authority, played such fan- 
 tastic tricks before high heaven" as might at any 
 moment, but that it was averted by good fortune. 
 
366 RICHARD HENRY DANA, JR. 
 
 have plunged the two countries into war. Why, that 
 conflict between Patillo and Bigelow amused us at 
 the time; but I think your Honors were shocked when 
 you thought that, as Patillo escaped, was pursued, 
 and the shots fired by his pursuers passed through his 
 sail, and tore away part of his mast and entered the 
 hull, if they had shed a drop of American blood, it 
 might the "multitudinous seas incarnadine" in war. 
 Why, people do not go to war solely for interest, but 
 for honor, and every one felt relieved, drew a freer 
 breath, when he learned that no such fatal result 
 followed. None of us would like to take the risk of 
 having an American vessel beyond the three miles, but 
 supposed to be within it, or actually within it for 
 an innocent purpose, attacked by a British cutter, 
 or attacked because she was within three miles from 
 a headland line, and blood shed in the encounter. 
 Now, Great Britain felt that, and felt it more than 
 the Provinces did, because she had not the same money 
 interest to blind her to the greatness of the peril. 
 
 Nor is that all, by any means. There was a further 
 difficulty. No one could know what would become 
 of us when we got into court. There was a conflict 
 of legal decisions. One vessel might go free, when 
 under the same circumstances another vessel might 
 be condemned. The Treaty of 1818 did not allow us 
 to go within three miles of certain shores, except for 
 the purposes of shelter, and getting wood or supplies, 
 and prohibited fishing within the three miles. The 
 act of the 59th of George III was the act intended to 
 execute that treaty. That act provided, that, "if 
 any such foreign vessel is found fishing, or preparing 
 to fish, or to have been fishing, in British waters. 
 
HALIFAX FISHERY COMMISSION 367 
 
 within three miles of the coast, such vessel, her tackle, 
 etc., and cargo shall be forfeited." That was the 
 language of the Statute of George III, and of the Do- 
 minion statutes. Is it not plain enough, — it seems 
 to me, it has seemed so to all Americans, I think, — 
 that that statute was aimed, as the treaty was, against 
 fishing within three miles .^^ But in one court the 
 learned judge who presides over it — a man of learn- 
 ing and ability, recognized in America and in the 
 Provinces, therefore giving his decision the greater 
 weight — decided two points against us. We had sup- 
 posed that the statute meant "for fishing within 
 three miles you will be condemned," and in order 
 that it should not be required that a man should be 
 caught in the very act of drawing up fish (which would 
 be almost impossible), it was explained by saying, 
 "or caught having fished or preparing to fish" — 
 meaning such acts as heaving his vessel to, preparing 
 his lines, throwing them out, and the like. The 
 learned court decided, first, that buying bait, and 
 buying it on shore, was "preparing to fish," within 
 the meaning of the statute. If an American skipper 
 went into a shop, leaned over the counter, and bar- 
 gained with a man who had bait to sell on shore, he 
 was "preparing to fish," and, as he certainly was 
 within three miles of the shore, his preparation was 
 made within three miles; and the judge treated it as 
 immaterial whether he intended to violate the pro- 
 vision of the treaty by fishing within three miles of 
 the shore, so long as he was preparing, within three 
 miles, to fish anywhere in the deep sea, on the Banks 
 of Newfoundland, or in American waters. Then came 
 the decision of the learned judge of New Brunswick 
 (they were both in 1871), who said that buying bait 
 
368 RICHARD HENRY DANA, JR. 
 
 was not the "preparing to fish" at which the statute 
 was aimed ; and further, that it was essential to prove 
 that the fishing intended was to be within three miles 
 of the shore. There was a conflict of decisions, and 
 we did not know where we stood. 
 
 Another effect of this restriction was, that it 
 brought down upon the Dominion fishermen the 
 statute of the United States, laying a duty of two 
 dollars a barrel upon every barrel of mackerel, and 
 one dollar a barrel upon every barrel of herring. That 
 statute was, — and I shall presently have the honor 
 to cite the evidence upon that point, that I may not 
 be supposed to rely upon assertion, — that statute 
 was, in substance, prohibitory. The result was, that 
 it killed all the vessel-fishing of these Provinces. They 
 had no longer seamen who went to sea in ships. A 
 shore-fishery sprung up for the use of the people 
 themselves, and was gradually somewhat extended 
 
 — I mean, a boat-fishery around the shores. But, 
 as I shall cite authorities to show, as I hope that your 
 Honors already believe, that the first effect was to 
 draw away from these Provinces the enterprising and 
 skilled fishermen who had fished in their vessels and 
 sent their catches to the American market. It drew 
 them away to the American vessels, where they were 
 able, as members of American crews, to take their 
 fish into market free of duty. 
 
 There was, at the same time, a desire growing on 
 both sides for reciprocity of trade; and it became 
 apparent that there could be no peace between these 
 countries until this attempt at exclusion by imaginary 
 lines, always to be matters of dispute, was given up, 
 
 — until we came back to our ancient rights and posi- 
 tion. It was more expensive to Great Britain than 
 
HALIFAX FISHERY COMMISSION 369 
 
 to us. It made more disturbance in the relations 
 between Great Britain and her provinces than it did 
 between Great Britain and ourselves; but it put every 
 man's life in peril; it put the results of every man's 
 labor in peril; and for what? For the imaginary right 
 to exclude a deep-sea fisherman from dropping his 
 hook or his net into the water for the free-swimming 
 fish, that have no habitat, that are the property of 
 nobody, but are created to be caught by fishermen, 
 prcedce humani generis. So at last it was determined 
 to provide a treaty by which all this matter should 
 be set aside, and we should fall back upon our own 
 early condition. 
 
 Upon the question, "How is the three-mile line 
 to be determined?" we find everything utterly afloat 
 and undecided. My purpose in making these remarks 
 is, in part, to show your Honors what a precarious 
 position a State holds which undertakes to set up 
 this right of exclusion, and to put it in execution. 
 The international law makes no attempt to define 
 what is "coast." We know well enough what a 
 straight coast is and what a curved coast is, but the 
 moment the jurists come to bays, harbors, gulfs and 
 seas, they are utterly afloat, — as much so as the sea- 
 weed that is swimming up and down the channels. 
 They make no attempt to define it, either by distance 
 or by political or natural geography. They say at 
 once: "It is difficult, where there are seas and bays." 
 Names will not help us. The Bay of Bengal is not 
 national property, it is not the king's chamber; nor 
 is the Bay of Biscay, nor the Gulf of St. Lawrence, 
 nor the Gulf of Mexico. An inlet of the sea may be 
 called a "bay," and it may be two miles wide at its 
 
370 RICHARD HENRY DANA, JR. 
 
 entrance; or it may be called a "bay," and it may 
 take a month's passage in an old-fashioned sailing 
 vessel to sail from one headland to the other. What 
 is to be done about it? If there is to be a three-mile 
 line from the coast, the natural result is, that that 
 three-mile line should follow the bays. The result 
 then would be, that a bay more than six miles wide 
 was an international bay, while one six miles wide, 
 or less, would be a territorial bay. That is the natural 
 result. Well, nations do not seem to have been con- 
 tented with this. France has made a treaty with 
 England, saying that, as between them, anything less 
 than ten miles wide shall be a territorial bay. 
 
 The difficulties on that subject are inherent, and, 
 to my mind, they are insuperable. England claimed 
 to exclude us from fishing in the Bay of Fundy; and 
 it was left to referees, of whom Mr. Joshua Bates was 
 umpire, and they decided that the Bay of Fundy was 
 not a territorial bay of Great Britain, but a part of 
 the high seas. This decision was put partly upon its 
 width, but the real ground was, that one of the as- 
 sumed headlands belonged to the United States, and 
 it was necessary to pass the headland in order to get 
 to one of the ports of the United States. For these 
 special reasons, the Bay of Fundy, whatever its 
 width, was held to be a public and international 
 bay. 
 
 [In the case of Queen v. Cunningham, Bell's Cr. 
 Cas. p. 72, it was held that Great Britain had crimi- 
 nal jurisdiction over a vessel ninety miles from the 
 mouth of the Bristol Channel, though over three 
 miles from any land; while in the Franconia case, 
 2 Ex. D. 159, it was held that there was no such juris- 
 
HALIFAX FISHERY COMMISSION 371 
 
 diction within three miles of the shore on the side of 
 the more open English Channel.] 
 
 This naturally leads to the question: "Does fishing 
 go with the three-mile line?" I have had the honor 
 to say to this tribunal, that there is no decision to 
 that effect, though I admit that there is a great deal 
 of loose language in that direction. I do not raise any 
 question respecting those fish that adhere to the soil, 
 or to the ground under the sea. But on what does 
 that three-mile jurisdiction rest, and what is the 
 nature of it.^^ I suppose we can go no further than this 
 — that it rests upon the necessities of the bordering 
 nation, — the necessity of preserving its own peace 
 and safety, and of executing its own laws. I do not 
 think that there is any other test. Then the question 
 may arise, and does, whether, in the absence of any 
 attempt by statute or treaty to prohibit a foreign 
 fisherman from following with the line or the seine 
 or net, the free-swimming fish within that belt, his 
 doing so makes him a trespasser by any established 
 law of nations .^^ I am confident it does not. That, may 
 it please the tribunal, is the nature of this three-mile 
 exclusion, for the relinquishment of which Great 
 Britain asks us to make pecuniary compensation. 
 It is one of some importance to her, a cause of con- 
 stant trouble, and, as I shall show you, — as has been 
 shown you already by my predecessors, — of very 
 little pecuniary value to England, in sharing it with 
 us, or to us in obtaining our share, but a very danger- 
 ous instrument for two nations to play with. 
 
 I would say one word here about the decision in the 
 Privy Council in 1877, respecting the territorial 
 rights in Conception Bay. I have read it over; and 
 though I have very great respect for the common-law 
 
372 RICHARD HENRY DANA, JR. 
 
 lawyer, Mr. Justice Blackburn, who was called upon 
 to pronounce upon a question entirely novel to him, 
 I believe that if your Honors think it at all worth 
 while to look over this opinion, in which he under- 
 takes to say that Conception Bay is an interior bay 
 of Newfoundland, and not public waters, although 
 it is some fifteen or more miles wide, you will find that 
 he makes the statement, which is true, that an Act 
 of Parliament is binding upon him, whether the act 
 be in conformity with international law or not. But 
 the act is not binding upon you, nor is the decision. 
 But there is nothing in the Act of Parliament which 
 speaks upon that subject. It is the Act 59 George 
 III, intended to carry out the Treaty of 1818, and for 
 punishing persons who are fishing within the bays; 
 and he infers from that, by one single jump, without 
 any authority whatever of judicial decision or legis- 
 lative language, that it must have meant to include 
 such bays as the bay in question. {Direct U. S. Cable 
 Co. V. Anglo- American Telegraph Co., English Law 
 Reports, Appeal Cases, Part 2, p. 394.) 
 
 This state of things lasted until the Treaty of 1854, 
 commonly called the Reciprocity Treaty. The great 
 feature of that treaty, the only one we care about 
 now, is, that it put us back into our original condi- 
 tion. It left us in possession of our general right. It 
 made no attempt to exclude us from fishing any- 
 where within the Gulf of St. Lawrence, and it allowed 
 no geographical limits. And from 1854 to 1866 we 
 continued to enjoy and to use the free fishery, as we 
 had enjoyed and used it from 1620 down to 1818. 
 
 But the Treaty of 1854 was terminated, as its 
 provisions permitted, by notice from the United 
 States. And why? Great Britain had obtained from 
 
HALIFAX FISHERY COMMISSION 373 
 
 us a general free trade. Large parts of the United 
 States thought that free trade pressed hardly upon 
 them. I have no doubt it was a selfish consideration. 
 I think almost every witness who appeared upon the 
 stand at last had the truthfulness to admit, that when 
 he sustained either duties or exclusion, it was upon 
 the selfish motive of pecuniary benefits to himself, 
 his section, his state, or his country; and if that were 
 the greatest offence that nations or individual poli- 
 ticians committed, I think we might well feel our- 
 selves safe. We had received, in return for this 
 advantage, a concession from Great Britain of our 
 general right to fish, as we always had fished, without 
 geographical exclusion. My learned friend, Judge 
 Foster, read to you (which I had not seen before, and 
 which was very striking) the confidential report of 
 Consul Sherman, of Prince Edward Island, in 1864. 
 I dare say my learned friend, the counsel from that 
 Island, knows him. Now, that is a report of great 
 value, because it was written while the Treaty was 
 in existence, and before notice had been given by our 
 government of the intention to repeal it. It was his 
 confidential advice to his own country as to whether 
 our interests, as he had observed them, were pro- 
 moted by it; and he said, if the Reciprocity Treaty 
 was considered as a boon to the United States, by 
 securing to us the right to inshore fishing, it had con- 
 spicuously failed, and our hopes had not been real- 
 ized. I think these are his very words. He spoke 
 with the greatest strength to his country, writing 
 from Prince Edward Island, which claims to furnish 
 the most important inshore fishery of any, and de- 
 clared that, so far as the United States was concerned, 
 the benefit that came from that was illusory, and it 
 
374 RICHARD HENRY DANA, JR. 
 
 was not worth while for us any longer to pay any- 
 thing for it. And that, as your Honors have seen, and 
 as I shall have the pleasure to present still further 
 by-and-by, was borne out by the general state of 
 feeling in America. The result was, that in 1866 the 
 Reciprocity Treaty was repealed. That repeal re- 
 vived, as my country admitted, the Treaty of 1818; 
 and we again laid, of course, the duties on the British 
 importation of mackerel and herring. We were 
 remitted to the antiquated and most undesirable 
 position of exclusion; but we remained in that posi- 
 tion only five years, from 1866 until 1871, until a 
 new treaty could be made, and a little while longer, 
 until it could be put into operation. What was the 
 result of returning to the old system of exclusion? 
 Why, at once the cutters and the ships of war, that 
 were watching these coasts, spread their sails; they 
 stole out of the harbors where they had been lurking; 
 they banked their fires; they lay in wait for the 
 American vessels, and they pursued them from head- 
 land to headland, and from bay to bay; sometimes a 
 British ofiicer on the quarter-deck, — and then we 
 were comparatively safe, — but sometimes a new- 
 fledged Provincial, a temporary ofiicer, and then we 
 were anything but safe. . . . Not only did it revive 
 the expensive and annoying and irritating and danger- 
 ous system of revenue-cutters, and marine police, up 
 and down the coast, telegraphing and writing to one 
 another, and burdening the Provinces with the ex- 
 pense of their most respectable and necessary main- 
 tenance; but it revived, also, the collisions between 
 the Provinces and the Crown; and when the Pro- 
 vincial governments undertook to lay down a ten-mile 
 line, and say to the cutters, "Seize any American 
 
HALIFAX FISHERY COMMISSION 375 
 
 vessel found within three miles of a line drawn from 
 headland to headland, ten miles apart," such alarm 
 did it cause in Great Britain, that the Secretary of 
 State did not write, but telegraphed instantly to the 
 Provinces, that no such thing could be permitted, and 
 that they could carry it no further than the six-mile 
 rule. Then attempts were made to sell licenses. Great 
 Britain said: "Do not annoy these Americans; we 
 are doing a very disagreeable thing; we are trying to 
 exclude them from an uncertain three-mile line; we 
 would rather give up all the fish in the ocean than to 
 have anything to do with it; but you insist upon it; 
 do not annoy those Americans ; give them a license, — 
 just for a nominal fee." So they charged a nominal 
 fee, as I have said, of fifty cents a ton, which was 
 afterwards raised — they know why, we do not — to 
 a dollar. We paid the fifty-cent fee, and some Ameri- 
 cans paid the dollar fee, — and why.^ They have told 
 you why. Not because they thought the right to fish 
 within three miles was worth that sum, but it was 
 worth that sum to escape the dangers and annoyances 
 which beset them, whether they were innocent or 
 guilty under the law. Then at last the Provinces . . . 
 raised it to an impossible sum, — two dollars a ton; 
 and we would not pay it. What led them to raise it.^ 
 What motive could there have been? They lost by it. 
 Our vessels did not pay it. Why, this was the result, 
 — I do not say it was the motive, — that it left our 
 fishermen unprotected, and brought out their cutters 
 and cruisers, and that whole tribe of harpies that line 
 the coast, like so many wreckmen, ready to seize upon 
 any vessel and take it into port and divide the plunder. 
 It left us a prey to them, and unprotected. It also 
 revived the duties, for we, of course, restored the 
 
376 RICHARD HENRY DANA, JR. 
 
 duty of two dollars a barrel on the mackerel, and one 
 dollar a barrel on the herring. It caused their best 
 fishermen to return into the employment of the 
 United States, and their boat -fishing fell off. That 
 has been stated to your Honors before, but it cannot 
 be too constantly borne in mind. 
 
 But we went on as well as we could in that state of 
 things, until Great Britain, desirous of relieving her- 
 self from that burden, and the United States desiring 
 to be released from those perils, and having also 
 another great question unsettled, that is, the conse- 
 quences of the captures by the Alabama, the two 
 countries met together with Commissioners, at 
 Washington, in 1871, and then made a great treaty 
 of peace. I call it a "treaty of peace," because it was 
 a treaty which precluded war, not restored peace 
 after war, but prevented war, upon terms most hon- 
 orable to both parties; and as one portion of that 
 treaty — one that, though not the most important 
 by any means, nor filling so large a place in the public 
 eye as did the Congress at Geneva, yet fills an im- 
 portant place in history, and in its consequences to 
 the people of both countries — was the determination 
 of this vexed and perpetual question of the rights of 
 fishing in the bays of the north-western Atlantic; and 
 by that treaty, we went back again to the old condi- 
 tion in which we had been from 1620 down, with the 
 exception of the period between 1818 and 1854, and 
 the period between 1866 and 1871. That restored 
 both sides to the only condition in which there can 
 be peace and security; peace of mind, at least, free- 
 dom from apprehension, between the two govern- 
 ments. And when those terms were made, which were 
 
HALIFAX FISHERY COMMISSION 377 
 
 terms of peace, of good-will to men, of security for the 
 future, and of permanent basis always, and we agreed 
 to free trade mutually in fish and fish-oil, and free 
 rights of fishing, as theretofore almost always held, 
 Great Britain said, "Very well; but there should be 
 paid to us a money compensation." The United 
 States asked none; perhaps it did not think it a fitting 
 thing to do. Great Britain said, "This is all very 
 well; but there should be a compensation in money, 
 because we are informed by the Provinces" — I do 
 not believe that Great Britain cared anything about 
 it herself — "that it is of more pecuniary value to 
 the Americans to have their right of fishing extended 
 over that region from which they have been lately 
 excluded, than it is to us to have secured to us free 
 right to sell all over the United States the catchings 
 of Her Majesty's subjects, free from any duty that 
 the Americans might possibly put upon us." — 
 "Very well," said the United States; "if that is your 
 view of it, if you really think you ought to have a 
 money compensation, we will agree to submit it to 
 a tribunal." And to this tribunal it is submitted. 
 First, under Article XVIII of the Treaty of 1871: 
 what is the money value of what the United States 
 obtains under that article. ^^ Next, what is the money 
 value of what Great Britain obtains under Articles 
 XXI and XIX? Second, Is what the United States 
 obtains under Article XVIII of more pecuniary value 
 than what Great Britain obtains under her two arti- 
 cles? Because I put out of sight our right to send to 
 this market, and the right of the people of the Pro- 
 vinces to fish off our coasts, as I do not think 
 either of them to be of much consequence. If you 
 shall be of opinion, that there is no difference of 
 
378 RICHARD HENRY DANA, JR. 
 
 value, — and of course that means no substantial 
 difference in value, or that the advantage is with 
 Great Britain, — then your deliberations are at an 
 end; but if you shall think there is a substantial 
 difference in value in favor of the United States, then 
 your deliberations must go further, and you must 
 decide what is that value, in money. 
 
 I hope, if your Honors are not already persuaded, 
 that you will be before the close of the argument on 
 the part of the United States, and may not be driven 
 from that persuasion by anything that may occur 
 on the other side, that the United States were quite 
 honest when they made the statement, in 1871, that 
 in asking for the abandonment of the restrictive sys- 
 tem in regard to the fisheries, they did not do it so 
 much because of the commercial or intrinsic value 
 of the fishing within the three-mile line, as for the 
 purpose of removing a cause of irritation ; and I hope 
 that the members of this tribunal have already felt 
 that Great Britain, in maintaining that exclusive 
 system, was doing injustice to herself, causing herself 
 expense, loss, and peril; that she was causing irrita- 
 tion and danger to the United States; that it was 
 maintained from a mistaken notion, though a natural 
 one, among the Provinces themselves, and to please 
 the people of the Dominion and of Newfoundland; 
 and that the great value of the removal of the restric- 
 tion is, that it restores peace, amity, good-will; that 
 it extends the fishing, so that no further question 
 shall arise in courts or out of courts, on quarter-decks 
 or elsewhere, whatever may be the pecuniary value 
 of the mere right of fishing by itself; and that it would 
 be far better if the Treaty of Washington had ended 
 with the signing of the stipulations, except so far as 
 
HALIFAX FISHERY COMMISSION 379 
 
 the Geneva Arbitration was concerned, and this 
 question had not been made a matter of pecuniary 
 controversy; that either a sum of money had been 
 accepted at the time for a perpetual right, as was 
 offered, or that some arrangement had been made 
 between the two countries by which there should 
 be the mutual right of free trade in timber, in 
 coal, and in fish, or something permanent in its char- 
 acter. 
 
 But that is a bygone, and we are to meet the ques- 
 tion as it comes now directly before us. Now, first, 
 with your Honors' leave, I will take up the con- 
 sideration of the money value of the removal of this 
 geographical restriction, for that is what it is. The 
 ancient freedom is restored ; the recent and occasional 
 restriction as to three miles is removed, and the 
 colonists say that that has been of pecuniary value 
 to us. Whether it is a loss to them or not is utterly 
 immaterial, in this consideration. They cannot ask 
 you to give them damages for any loss to them. It 
 is only the value to us. It is like a person buying an 
 article in a shop, and a third person appointed to 
 determine what is the value of that article to the 
 purchaser. It is quite immaterial how great a mis- 
 take the man may have made in selling it to him, or 
 what damage the want of it may have brought upon 
 his family or himself. If I have bought an umbrella 
 across the counter, and we leave it to a third man to 
 determine the value of the umbrella to me, it is 
 totally immaterial whether the man has sold the only 
 one he had, and his family have suffered for the want 
 of it. That is a homely illustration, but it is perfectly 
 apt. The question is. What is the value to the citi- 
 zens of the United States, in money, of the removal 
 
380 RICHARD HENRY DANA, JR. 
 
 of this geographic restriction? Not what damage this 
 may have been to the Provinces, by reason of the 
 Treaty which Her Majesty's Government saw fit to 
 make with us. What, then, is the money vahie of the 
 removal of the restriction? 
 
 I will now take up for a moment the question of 
 the cod-fisheries. In the first place, as to the cod- 
 fiskery, it is a deep-sea or off-shore fishery, not a 
 fishery within three miles. I do not mean to say that 
 stray cod may not be caught occasionally within that 
 limit; but as a business, it is a deep-sea business. 
 With your Honors' permission, I will read some of 
 the evidence on that point. 
 
 These are only passages selected from a large mass 
 of testimony, but they were selected because the per- 
 sons who testified in that way were either called by 
 the British side, or were persons of so much experi- 
 ence that they are fair specimens of our view of the 
 subject. 
 
 Now, cod fishery is the great trade and staple of 
 the United States, and is growing more and more so. 
 The small cod that were once thrown overboard are 
 now kept. The oil is used a great deal, codfish oil; 
 and there are manufacturing establishments in 
 Maine, Connecticut, and Massachusetts, which, 
 we have been told by the witnesses, work up a great 
 deal of this material that used to be thrown over- 
 board; they draw oil from it, and the rest is used for 
 fertilizing the land, and that is a gradually increasing 
 business. One of the witnesses, I recollect, from 
 Gloucester, told us how greatly the trade in codfish 
 had improved, so that now, instead of sending it out 
 as whole fish, it is cut in strips, rolled together, and 
 
HALIFAX FISHERY COMMISSION 381 
 
 put into cans, and sold in small or large quantities 
 to suit purchasers, and in that very easy manner 
 sent all over the United States. 
 
 The cod-fishery is also one as to which there is no 
 fear of diminution, — certainly none of its extermi- 
 nation. Professor Baird told us, on page 456 of the 
 American evidence, that a single cod produces from 
 three to seven million eggs, each one capable of 
 forming another living animal in the place of its 
 mother. He said that owing to the winds and storms 
 to which they were exposed, and to their being 
 devoured by other fish which sought for them, the 
 best information was that about a hundred thousand 
 of these eggs prosper so as to turn into living fish, 
 capable of taking care of themselves, the undefended 
 and unrestricted navigators of the ocean. Although 
 that is not a large percentage of the amount of ova, 
 yet an annual increase of a hundred thousand for 
 every one shows that there is no danger of the dimi- 
 nution, certainly none of the extermination, of that 
 class of fish. It is enormous in quantity, something 
 which the whole world combining to exterminate 
 could hardly make any impression upon; and when 
 the argument is made here that we ought to pay more 
 for the right to fish because we are in danger of exter- 
 minating what codfish we have, — if that argument 
 is made, — it amounts to nothing. But if the further 
 argument is made, that we have no cod-fishery to 
 depend upon, then we have the statistics, and we have 
 information from witnesses from all parts, that the 
 cod-fishery shows no signs of diminution, and that 
 it is as large and extensive and as prosperous as ever. 
 Gloucester has gone more into the business than it 
 ever has before; and I do not recollect that there is 
 
382 RICHARD HENRY DANA, JR. 
 
 any evidence of the least value showing that that 
 fishery is likely to fall off materially as a commercial 
 product in our hands. There is a single British con- 
 currence out of several others, I think, in this state- 
 ment, which I will read. [Statement is to the effect that 
 the cod-fishery is not precarious and the fishermen 
 make a good living out of it.] I read that, because it 
 is the testimony of an intelligent British witness, who 
 represents one of those great Jersey firms that deal in 
 codfish on the west coast of the gulf. 
 
 The bait of the codfish need not be caught within the 
 three-mile line. That, I think, we have pretty well 
 established. We may buy it when we wish it. Among 
 the curious grounds set forth to swell the English claim 
 against us, to make it meet, if possible, the obvious 
 money claim we had against Great Britain, if it was 
 seen fit to enforce it, — we now put it in only as a set- 
 off, — appears the testimony that our fishing- vessels, 
 going into Newfoundland, employed the men there 
 to fish, and that it had a very deleterious moral effect 
 upon the habits of the Newfoundland fishermen; that 
 they had been, up to the time the Americans appeared 
 there to buy their bait, an industrious people, in a cer- 
 tain sense; they had fished a certain part of the year 
 under contracts, which it seems they could not get rid 
 of, with a class of owners who held them in a kind of 
 blissful bondage; but that when the Americans ap- 
 peared, they led them to break these contracts; some- 
 times tempted them to fall off from their agreements, 
 and put money into their pockets ; they paid them for 
 work; they gave them labor at a time when they ought 
 to have been lying idle, — when it was better for them 
 to lie idle ! Oh, it steadied them, improved them, raised 
 their moral tone, to be idle, and tended to preserve 
 
HALIFAX FISHERY COMMISSION 383 
 
 those desirable relations that existed between them 
 and the merchants of St. John's ! A great deal was 
 said about that; but at last there came upon the 
 stand a witness, whose name, if I recollect, was Mac- 
 donnell (page 313 of the British testimony), a British 
 witness. I did not know that he would not be fully 
 as well filled with these feudal opinions as the others 
 had been. He said the people at Fortune Bay were 
 well off. 
 
 Nothing has been attempted since to contradict 
 that statement. It is in accord with the nature of 
 things. There is always danger in putting money 
 in any man's hands, and there is also danger in pov- 
 erty. The wise man saw that poverty had its perils as 
 well as wealth ; and nothing can be worse for a people 
 in the long run than the condition to which the fisher- 
 men of Newfoundland had been reduced. And now, 
 believing fully in this testimony of Mr. Macdonnell, 
 I cannot doubt that our coming among them and 
 buying their bait, stimulating them to work, and 
 paying them money, has led to their hoarding money ; 
 has led to their abstinence from those habits which 
 so beset the half -employed and the idle man, who has 
 a large season of the year with nothing to do, but has 
 a reasonable expectation, that, what with his labor 
 and what with his credit, somebody or other who owns 
 the boats will support him and his family. 
 
 I should like, also, to call your attention, on this 
 question of getting bait, which is of some importance, 
 to the testimony of Prof. Baird, which, I suppose, 
 none of you has forgotten, which shows that we 
 need not catch our bait for the cod in British waters. 
 [Then follows a long extract from Prof. Baird's testi- 
 mony supporting Mr. Dana's statement.] 
 
384 RICHARD HENRY DANA, JR. 
 
 That is, of course, not very material, because it 
 only goes to the point that we are not dependent 
 upon catching bait within three miles of the British 
 coast, anywhere. We have ways of using salt bait, 
 and the use of all these scientific methods of pre- 
 serving bait, which will, no doubt, be resorted to 
 and experimented upon, and we may be quite certain 
 that they will, in skilful hands, succeed. Nothing 
 further upon that point need be considered by your 
 Honors. 
 
 I now call your attention to mackerel. The mack- 
 erel, may it please your Honors, is a deep-sea fish. 
 He does not lurk about anybody's premises. He does 
 not live close in to the shore. He is a fish to whose 
 existence and to whose movements a mysterious im- 
 portance is attached. A certain season of the year 
 he is not to be seen; and at other times, mackerel 
 are so thick upon the waters, that, as one of the most 
 moderate of the British witnesses said, you might 
 walk upon them with snow-shoes, I believe it was 
 from East Point to North Cape! I do not know that 
 I have got the geography quite right, but it is some- 
 thing like that. However, I do not doubt that the 
 number is extraordinary at times, and at other times 
 they are not to be seen. We do not know much about 
 them. We know they disappear from the waters of 
 our whole coast, from Labrador down to the extreme 
 southerly coast, and then at the early opening of the 
 spring they reappear in great numbers, armies of 
 them. They can no more be counted than the sand 
 of the sea, and are as little likely to be diminished 
 in number. They come from the deep sea, or deep 
 mud, and they reappear in these vast masses, and for 
 a few months they spread themselves all over these 
 
ILVLIFAX FISHERY COMMISSION 385 
 
 seas. A few of them are caught, but very few in pro- 
 portion to the whole number, and then they recede 
 again. Their power of multiplication is very great. 
 I forget at this moment what Prof. Baird told us, but 
 it is very great. They are specially to be found upon 
 the banks of the Gulf of St. Lawrence, the Bradelle or 
 Bradley Banks, the Orjihan, Miscou, Green, Fisher- 
 man's Bank, and off the coast of Prince Edward 
 Island, and especially, more than anywhere else, 
 about the Magdalen Islands; and in the autumn, 
 as they are passing down to their unknown homes, 
 they are to be found in great numbers directly off the 
 western coast of Cape Breton, near the highlands 
 opposite Margaree island, and near Port Hood; but in 
 the main, they are to be found all over the deep sea 
 of the Gulf of St. Lawrence. The Gulf of St. Law- 
 rence is full of ledges, banks, and eddies formed by 
 meeting tides, which Prof. Hind described to us, and 
 there the mackerel are especially gathered together. 
 The map drawn on the British side, in the British 
 interest, shows this enormous field for the mackerel 
 fisheries; and though very few comparatively of the 
 banks and ledges are put down, yet in looking over 
 this map, it seems as if it was a sort of great directory, 
 showing the abodes of the mackerel, and also the 
 courses that the mackerel take in passing from one 
 part of this great sea to another. There is hardly a 
 place where mackerel fishing grounds are not marked 
 out here, and they are nearly all marked out at a 
 considerable distance from the shore, all around the 
 Magdalen Islands, for many miles, and at a distance 
 from Prince Edward Island, and on the various banks, 
 ledges, and shoals that are to be found; and it is 
 there, as I shall have the honor to point out to the 
 
386 RICHARD HENRY DANA, JR. 
 
 Court more particularly hereafter, that they have 
 always been caught in the largest quantities, and the 
 best of them, by American fishermen. 
 
 There are one or two experienced witnesses, from 
 Gloucester, who have dealt with the subject carefully, 
 for their own interests, not testifying for any particu- 
 lar purpose, but having kept their books and accounts, 
 and dealt with the mackerel in their own business, 
 whose words I would like to recall to the attention of 
 the Court for a few moments. 
 
 The Commissioners will recollect the testimony 
 of Mr. Myrick, an American merchant, who had 
 established himself on Prince Edward Island. The 
 inshore fishery, he said, is not suited to American 
 vessels. Our vessels are large; they are built at a 
 distance; they are manned by sixteen or seventeen 
 men ; they cost a great deal ; they require large catches, 
 and dealing with fish in large quantities, they deal at 
 wholesale altogether, and not at retail. Retailing 
 would ruin them. Anything short of large catches, 
 large amounts, would be their end, and compel all 
 the merchants to give up the business, or to take to 
 boat-fishing, which, of course, Gloucester, or Massa- 
 chusetts, or New England, or any part of the United 
 States, could not undertake to carry on here. It has 
 been stated to the tribunal, by experienced men, as 
 you cannot but remember, that our fishermen object 
 to going very near shore in the Gulf of St. Lawrence. 
 There are perils of weather connected with the coast 
 which cannot be set aside by ridicule. Gloucester is 
 a town full of widows and orphans, whose husbands 
 and parents have laid their bones upon this coast, and 
 upon its rocks and reefs, trusting too much to the 
 appearance of fine weather, as we all did last night, 
 
HALIFAX FISHERY COMMISSION 387 
 
 waking up this morning in a tempest. Gloucester 
 has tried to provide for these bereft people by every 
 fisherman voluntarily paying a small percentage of 
 his earnings to constitute a widows' and orphans' 
 fund. Even the tempestuous Magdalen Islands are 
 safer for vessels than are the inshore coasts of those 
 islands, where we are now permitted to fish; their 
 harbors are poor, their entrances are shallowed by 
 sand-bars, which are shifting, which shift with every 
 very high wind, and sometimes with the season. 
 They are well enough after you get inside of them, 
 but they are dangerous to enter, to persons inexperi- 
 enced, — dangerous to any by night; and if a vessel 
 is caught near the shore by a wind blowing inshore, 
 against which she cannot beat with sails, for none of 
 them carry steam, then she is in immediate peril. 
 They therefore give a wide berth to the inshore fish- 
 eries, in the main. They resort to them only occasion- 
 ally. They are not useful for fishing with our seines. 
 We find that the purse-seines are too deep; that they 
 are cut by the ground, which is rocky; that it is 
 impossible to shorten them without scaring the mack- 
 erel, which must be taken by seines run out a great 
 distance, for they are very quick of sight, and very 
 suspicious of man; and they soon find their way out 
 of the seines, unless they are laid a considerable dis- 
 tance off. 
 
 We need not catch our mackerel bait, any more 
 than our cod bait, within the three-mile limit. On 
 the contrary, the best mackerel bait in the world is 
 the menhaden, which we bring from New England. 
 All admit that. The British witnesses say they 
 would use it, were it not that it is too costly. They 
 have to buy it from American vessels; and they be- 
 
388 RICHARD HENRY DANA, JR. 
 
 take themselves to an inferior kind of bait when they 
 cannot afford to buy the best bait from us. And 
 another result is that the Americans have shown for 
 many years that what are called the shore mackerel 
 — that is, those that are caught off the coast of Mas- 
 sachusetts and several other of the New England 
 States — are really better than the Bay mackerel. 
 The evidence of that is the market prices they bring. 
 It is not a matter of opinion. We have not called as 
 witnesses persons who have only tasted them, and 
 might have prejudices or peculiar tastes, but we have 
 shown the market value. 
 
 It is also true, a matter of testimony and figures, 
 that the American catch, the catch upon the American 
 shore, is very large, and has increased, and is attract- 
 ing more and more the attention of our people en- 
 gaged in fishing, and it is only this year that the shore 
 fishing proved to be unprofitable, and the confiding 
 men who were led to send their vessels to a consider- 
 able extent, though not very great, into the Gulf, by 
 reason of the British advertisements scattered about 
 Gloucester, have come away still more disappointed 
 than they had been by the shore fishing, because they 
 had employed more time and more capital than their 
 catch compensated them for. There are some statis- 
 tics which I will read, taken from a prominent and 
 trustworthy man, as to the American catch. David 
 W. Low, on page 358 of the American evidence, 
 states the figures as follows. [Statistics of Mr. Low, 
 supporting the above statement, omitted.] 
 
 The statistics of John H. Pew & Sons, put in by 
 Charles H. Pew, p. 496, for the last seven years, from 
 1870 to 1876, inclusive, show that the total, for that 
 time, of Bay mackerel that their own vessels caught. 
 
HALIFAX FISHERY COMMISSION 389 
 
 amounted to $77,995.22, and the shore mackerel for 
 the same period was $271,333.54. Your Honors will 
 recollect the statistics put in, which it is not necessary 
 for us to transfer to our briefs, showing the exact 
 state of the market on the subject of the proportion 
 of American fish caught on the shores, and the pro- 
 portion caught in the bay. 
 
 We have introduced a large number of witnesses 
 from Gloucester, and I think I take nothing to myself 
 in saying that the greater part of them, those who 
 profess to be engaged in the trade or business at all, 
 were men of eminent respectability, and commended 
 themselves to the respect of the tribunal before which 
 they testified. You were struck, no doubt, with the 
 carefulness of their book-keeping, and the philo- 
 sophical system which they devised, by means of 
 which each man could ascertain whether he was mak- 
 ing or losing in different branches of his business; and 
 as the skipper was often part owner, and usually 
 many dealers managed for other persons, it became 
 their duty to ascertain what was the gain or loss of 
 each branch of their business. They brought for- 
 ward and laid before you their statistics. They sur- 
 prised a good many, and I know that the counsel on 
 the other side manifested their surprise with some 
 directness; but, may it please the Court, when the 
 matter came to be examined into, it assumed a differ- 
 ent aspect. We made the counsel on the other side 
 this offer. We said to them, "There is time enough, 
 there are weeks, if you wish it, before you are obliged 
 to put in your rebuttal ; we will give you all the time 
 you wish; send anybody to Gloucester you please, 
 to examine the books of any merchants in Gloucester 
 engaged in the fishing business, and ascertain for 
 
390 RICHARD HENRY DANA, JR. 
 
 yourselves the state of the bay and shore fishing as 
 it appears there." You say that bay fishing is as 
 profitable as the shore fishing; that it has made a 
 great and wealthy city of Gloucester, and you assume 
 that it is owing to their having had, for the greater 
 part of the time, a right to fish inshore. It would 
 seem to follow from this reasoning, that whenever 
 we lost the right to fish inshore, Gloucester must have 
 receded in its importance, and come up again with 
 the renewal of the privilege of inshore fishing. No- 
 thing of that sort appears, in the slightest degree. 
 
 "But," they say, "the Bay fishing must be of great 
 importance, because of the prosperity of Gloucester." 
 Now, the people of Gloucester have no disposition to 
 deny their prosperity, but it is of a different kind 
 from what has been represented. Gloucester is a 
 place altogether sui generis. I never saw a place like 
 it. I think very few of your Honors failed to form an 
 opinion that it was a place well deserving of study 
 and consideration. There is not a rich idle man, 
 apparently, in the town of Gloucester. The business 
 of Gloucester cannot be carried on, as mercantile 
 business often is, by men who invest their capital in 
 the business, and leave it in the hands of other people 
 to manage. It cannot be carried on as much of the 
 mercantile business of the world is carried on, in a 
 leisurely way, by those who have arrived at some- 
 thing like wealth, who visit their counting-rooms at 
 ten o'clock in the morning, and stay a few hours, then 
 go away to the club, return to their counting-rooms 
 for a short time, and then drive out in the enticing 
 drives in the vicinity, and their day's work is over. 
 It cannot be carried on as my friends in New Bedford 
 used to carry on the whale fishery, where the gentle- 
 
HALIFAX FISHERY COMMISSION 391 
 
 men were at their counting-rooms a few months in 
 the year, and when the off season came, they were at 
 Washington, Saratoga, or wherever else they saw 
 fit to go. And yet they were prosperous. No; the 
 Gloucester tradesmen are hard-working men, and they 
 gain their wealth and prosperity on the terms of being 
 hard-working men. The Gloucester merchants, if 
 you see fit to call them so, — they are not particular 
 about their title, but are content to be "fish-dealers," 
 — are men who go to their counting-rooms early and 
 stay late. If they go up to Boston on business, they 
 take a very early train, breakfast before daylight, 
 and return in season to do a day's work, though Bos- 
 ton is thirty and more miles distant; and when their 
 vessels come in, they are down upon the wharves, 
 they stand by the large barges, and they cull the 
 mackerel with their own hands ; they count them out 
 with their own hands ; they turn them with their own 
 hands into the barrels, and cooper them, and scuttle 
 the barrels, and put in the brine and pickle the fish, 
 and roll them into the proper places; and when they 
 have a moment's leisure, they will go to their count- 
 ing-rooms and carry on their correspondence, by tele- 
 graph and otherwise, with all parts of the United 
 States, and learn the value of these mackerel. They 
 are ready to sell them to the buyers, who are another 
 class of persons, or they are ready to keep and sell 
 them in the larger market of Boston. 
 
 By their patient industry, by their simple hard 
 day's works, they have made Gloucester an important 
 place; but they have not added much to the mackerel 
 fishery of the United States. Gloucester has grown 
 at the expense of every other fishing town in New 
 England. We have laid before your Honors, through 
 
392 RICHARD HENRY DANA, JR. 
 
 Mr. Low, I think it was, or through Mr. Babson, the 
 statistics of the entire falling off of all the fishing 
 towns in New England. Where are Plymouth and 
 Barnstable, where Marblehead, which was known the 
 world over as a fishing town? There are no more 
 fishing vessels there. The people have all gone into 
 the business of making shoes and other domestic 
 manufactures. So with Beverly, so with Manchester, 
 so with Newburyport, and so with the entire State 
 of Maine, with the exception of a very few vessels 
 on the coast. Two or three of the last witnesses gave 
 us a most melancholy account of the entire falling 
 off of fishing in Castine, Bucksport, and all up and 
 down Penobscot Bay and River, so that there is 
 hardly any fishing left. When they were fishing towns, 
 people employed their industry in it. Their harbors 
 were enlivened by the coming and going of fishing 
 schooners, and now there is an occasional weekly 
 steamer or an occasional vessel there owned, but do- 
 ing all its business in Boston and New York. But the 
 fishing business of all the towns of New England, 
 except the cod fishery of Provincetown and of the 
 towns near, has concentrated in Gloucester. It seems 
 to be a law that certain kinds of business, though 
 carried on sparsely at periods, must be eventually 
 concentrated. When they are concentrated, they 
 cannot be profitably carried on anywhere else. The 
 result is, that the mackerel fishery and cod fishery, 
 with the exception of the remote points of Cape Cod, 
 have concentrated in Gloucester. There is the cap- 
 ital; there is the skill; there are the marine railways; 
 there is that fishing insurance company, which they 
 have devised from their own skill and experience, by 
 which they insure themselves cheaper than any peo- 
 
HALIFAX FISHERY COMMISSION 393 
 
 pie in the world ever did insure themselves against 
 marine risks; so much so, that merchants of Glouces- 
 ter have told us that if they had to pay the rates that 
 are paid in stock companies, the fishing business could 
 not be carried on by merchants who own their ships; 
 the difference would be enough to turn the scale. 
 Now it appears to be the fact, — I will not trouble 
 your Honors by going over the testimony to which 
 every Gloucester man swore, — it turns out to be 
 the fact, that the prosperity of Gloucester, while it 
 has additional resources in its granite, and as a sea- 
 bathing place, has been owing mostly to the prudence 
 and sagacity, the frugality and laboriousness, of the 
 men brought up as fishermen, who turn themselves 
 into fish-dealers in middle life, and carry their experi- 
 ence into it; and it is only on those terms that Glouces- 
 ter has become what it is. An attempt was made at 
 Salem, under the best auspices, to carry on this 
 business, with the best Gloucester fishermen and 
 most experienced men concerned in it, by a joint- 
 stock company ; but in the matter of deep-sea fishing, 
 "the Everlasting" seems to have "fixed his canon" 
 against its prosperity, except upon the terms of 
 frugality and laboriousness. It never has succeeded 
 otherwise, and scarce on those terms, except it be 
 with the aid of bounties from the governments. 
 
 Now, we say that the whole Bay fishing for mack- 
 erel is made prosperous simply on those terms; that 
 it is no treaty-gift that has created it, but it is the 
 skill and industry of the fishermen, the capital in- 
 vested by the owners, and the patient, constant labor 
 and skill of the owners in dealing with their fish, after 
 they are thrown upon their hands on the wharf and 
 they have paid their fishermen, that has given to it 
 
394 RICHARD HENRY DANA, JR. 
 
 any value in the market. I do not think it is worth 
 while to speculate upon the question whether fish in 
 the water have any money value. I can conceive that 
 fish in a pond and that fish that cling to the shore, 
 that have a habitat, a domicile, like shell-fish, have 
 an actual value. They are sure to be found. It is 
 nothing more than the application of mechanical 
 means that brings them into your hands. But cer- 
 tainly it is true, that the value of the free-swimming 
 fish of the ocean, pursued by the deep-sea fishermen, 
 with line or with net, must be rather metaphysical 
 than actual. To pursue them requires an investment 
 of capital; it requires risk and large insurance; it 
 requires skill, and it requires patient labor; and when 
 the fish is landed upon the deck, his value there, 
 which is to be counted in cents rather than in dollars, 
 is the result of all these things combined; and if any 
 man can tell me what proportion of those cents or 
 dollars which that fish is worth on the deck of the 
 vessel is owing to the fact that the fishermen had a 
 right to try for him, I think he will have solved a 
 problem little short of squaring the circle, and his 
 name ought to go down to posterity. No political 
 economist can do it. I will not say that the fish in the 
 deep sea is worth nothing; but, at all events, the right 
 to attempt to catch it is but a liberty, and the result 
 depends upon the man. 
 
 If there can be no other fishery than the one which 
 you have the privilege of resorting to, then it may be 
 of great value to you to have that privilege. If there 
 be but one moor where he can shoot, the person who 
 is shooting for money, to sell the game that he takes, 
 may be willing to pay a high price for the privilege. 
 But recollect that the fishing for the free-swimming 
 
HALIFAX FISHERY COMMISSION 395 
 
 fish is over the whole ocean. The power of extending 
 it a little nearer shore may be of some value, — I do 
 not say that it is not, — but it strikes my mind as 
 an absurd exaggeration, and as an utter fallacy, to 
 attempt to reason from the market value of the fish 
 there caught, to the money value of the privilege 
 so extended. The fish are worth, I will say, $12.00 a 
 barrel ; but what does that represent, when the Ameri- 
 can merchants. Hall and Myrick, both tell us that 
 the value on the wharf at Prince Edward Island is 
 about $3.75 a barrel? Well, suppose the mackerel to 
 be worth $3.75 a barrel on the wharf in Prince Ed- 
 ward Island, what does that represent? Is that a 
 thing which the United States is to pay Great Britain 
 for? Has Great Britain sold us a barrel of pickled 
 mackerel on the wharf? Has anybody done it? I 
 think not. That represents the result of capital and 
 of many branches of labor. Then, if you ask, "What 
 is the worth to Mr. Hall or Mr. Myrick of the mack- 
 erel on the deck of the vessel?" I say, it is next to 
 nothing. The fish will perish if he is not taken care 
 of. Skill is to be used upon him, then; what costs 
 money is to be used upon him, ice and pickle, and he 
 is to be preserved. All this to the end that he may 
 eventually, after a great deal of labor, skill, and cap- 
 ital, be sent to the market. But, recollect that the 
 vessel from whose deck he was caught cost $8000. 
 Recollect, that the men who maintain that crew and 
 feed them, and enable them to clothe themselves and 
 follow that pursuit, are paying out large sums of 
 money. Recollect, that the fisherman who catches the 
 fish has, as the result of many years' labor, which may 
 be called an investment, learned how to catch him ; and 
 it is by the combination of all these causes, that at 
 
396 RICHARD HENRY DANA, JR. 
 
 last the fish is landed. Now, in my judgment, it is 
 purely fallacious to attempt to draw any inference 
 from the market value of the fish to the right to 
 extend your pursuit of those animals nearer the coast 
 than before, or to the market value of any right to 
 fish over a certain portion of the ocean, when all 
 other oceans are open to you, and all other fish- 
 eries. 
 
 Your Honors, of course, recollect that the mackerel 
 fishery, taken at its best, — I don't confine myself 
 to the inshore fishery; I mean the mackerel fishery 
 of the Bay and the Gulf, at its best, the whole of it, 
 — is of a greatly decreasing and precarious value. 
 I speak only of the salted mackerel that is sent into 
 the United States. The lake fish are fast becoming a 
 substitute for salt mackerel. I will call your Honors' 
 attention to two or three rather striking proofs which 
 were not read previously by Judge Foster. 
 
 [Then follow references to testimony in support.] 
 Then there are other fresh fish that are taking the 
 place of the salt mackerel. The question is not be- 
 tween British mackerel and American mackerel, but 
 it is between mackerel and everything else that can 
 be eaten: because, if mackerel rise in market price, 
 and in the cost of catching, people will betake them- 
 selves to other articles of food. There is no necessity 
 for their eating mackerel. The mackerel lives in the 
 market only upon the terms that it can be cheaply 
 furnished. This tribunal will recollect that interest- 
 ing witness, Mr. Ashby, from Noank, Conn.; how 
 enthusiastic he was over the large halibut that he 
 caught; how his eyes gleamed, and his countenance 
 lightened, when he told your Honors the weight of 
 that halibut, the sensation produced in Fulton Mar- 
 
HALIFAX FISHERY COMMISSION 397 
 
 ket when he brought him there, and the very homely, 
 but really lucid way in which he described the superior 
 manner by which they were able to preserve those 
 fish in ice, and the way they were brought into mar- 
 ket; and how the whole horizon was dotted with 
 vessels fishing for halibut, and other fresh fish, with 
 which to supply the great and increasing demand in 
 the New York market. There is also the testimony 
 of Professor Baird, who speaks of various kinds of fish. 
 It is not worth while to enumerate them all, but he 
 speaks especially of a fish known as "mullet" on the 
 Southern coast. So long as slavery existed, it is un- 
 doubtedly true that there was very little enterprise 
 in this direction. It suft'ered like everything else but 
 cotton, rice and sugar, staples which could be culti- 
 vated easily by slave labor. Almost every other form 
 of agriculture, almost all kinds of maritime labor, 
 ceased. The truth was, the slaves could not be trusted 
 in boats. The boats would be likely to head off from 
 South Carolina or Virginia, and not be seen again. 
 The vessels that went to the ports of the slave States 
 were Northern vessels, owned and manned by North- 
 ern people. Southern people could not carry on com- 
 merce with their slaves, nor fishing with their slaves. 
 Slavery being now abolished, the fisheries of the 
 Southern States are to be developed. The negro will 
 fish for himself. He will have no motive for running 
 away from his own profits. The result has been that 
 this mullet has come into very considerable import- 
 ance. Professor Baird has his statistics concerning 
 it, and he has certainly a very strong opinion that 
 that fish is in danger of excluding salted mackerel 
 from the Southern markets (indeed, it is almost 
 excluded now), and that it will work its way up to the 
 
398 RICHARD HENRY DANA, JR. 
 
 Northern markets. Some of the Southern people 
 think very highly of it, as the best kind of fish, think 
 it has not its superior in the ocean; but, supposing 
 that to be local exaggeration and patriotic enthusiasm, 
 yet certainly it is a useful and valuable fish, and the 
 demand for it is rapidly increasing. Professor Baird 
 says, on page 460, that one million barrels of mullet 
 could be furnished annually, from the south shore of 
 Chesapeake Bay to the south end of Florida, if they 
 were called for. 
 
 Your Honors will recollect, as a striking illustra- 
 tion of the truth of the power of propagation, the 
 statement of Professor Baird in regard to the River 
 Potomac, where a few black bass, some half dozen, 
 were put into the river, and in the course of a few 
 years they were abundant enough to supply the mar- 
 ket. Fish culture has become a very important mat- 
 ter, and what we call in New England our "ponds," 
 small lakes and rivers, are guarded and protected, and 
 every dam built across any river where anadromous, 
 or upward-going fish, are to be found, has always a 
 way for their ascent and descent; so that everything 
 is done to increase the quantity, kind, and value of 
 all that sort of fish, making the salted mackerel less 
 important to the people, and in the market. 
 
 Then the improved methods of preserving fish are 
 astonishing. I think the evidence on that point was 
 principally from Professor Baird, who has described 
 to us the various methods by which fish, as well as 
 bait, may be preserved. He told us that for months, 
 during the hottest part of the Exhibition season at 
 Philadelphia, during our Centennial year, fish were 
 kept by these improved chemical methods of drying, 
 and methods of freezing, so that after months, the 
 
HALIFAX FISHERY COMMISSION 399 
 
 Commissioners ate the fish, and found them very 
 good eating. There was no objection whatever to 
 them, although, of course, they were not quite as 
 good as when they were entirely fresh. So that all 
 science seems to be working in favor of distribution, 
 instead of limitation, of what is valuable for human 
 consumption; and the longer we live, and the more 
 science advances, the less can any one nation say to 
 the fishermen of another, Thus far, and no farther! 
 We turn upon such an attempt at once, and say, 
 "Very well; if you choose to establish your line of 
 exclusion, do it. If you choose to throw all open, do 
 so. We prefer the latter as the generous, the more 
 peaceful and safe method for both parties. If you 
 prefer the former, take the expense of it, take the 
 risk of it, take the ignominy of it! If you give it up, 
 and it costs you anything to do so, we will pay you 
 what it is worth to us." 
 
 I certainly hope that after our offer to open the 
 books of any merchant in Gloucester, or any number 
 of merchants, to the other side, it will not be said that 
 we have selected our witnesses. The witnesses that 
 we brought here, both fishermen and owners, said 
 that the bay fishery was dying out. They show it by 
 their own statistics, and the statistics of the town of 
 Gloucester show how few vessels are now engaged 
 in the bay fishery; that they are confining their atten- 
 tion to cod fishing and shore fishing, with weirs, nets, 
 pounds, and seines. 
 
 We did not bring the bankrupt fish-dealers from 
 Gloucester, the men who have lost by attempting to 
 carry on these bay fisheries, as we might have done. 
 We did not bring those who had found all fishing 
 unprofitable, and had moved away from Gloucester, 
 
400 RICHARD HENRY DANA, JR. 
 
 and tried their hand upon other kinds of business. 
 We brought, on the other hand, the most prosperous 
 men in Gloucester. We brought those men who had 
 made the most out of the fisheries, the men who had 
 grown richest upon them, and we exhibited their 
 books ; and as we could not bring up all the account- 
 books of Gloucester to this tribunal, we besought the 
 other side to go down, or send down a commission, 
 and examine them for themselves. I certainly think 
 we have a right to say, that we have turned Gloucester 
 inside out before this tribunal, with the result of show- 
 ing that the bay fishing has gradually and steadily 
 diminished, that the inshore fishery is unprofitable, 
 that the bay fishery has been made a means of sup- 
 port only to the most skilful, and by those laborious 
 and frugal methods which I have before described to 
 this tribunal. 
 
 I have no instructions from my country, gentlemen 
 of the Commission, and no expectation from its 
 government, that I should attempt to depreciate the 
 value of anything that we receive. We are not to 
 go away like the buyer in the Scripture, saying, "It 
 is nought; it is nought"; but we have referred to a 
 Commission, which will stand neutral and impartial, 
 to determine for us; and no proclamation of opinion, 
 however loud, will have any effect upon that Com- 
 mission. My country stands ready to pay anything 
 that this Commission may say it ought to pay, as I 
 have no doubt Great Britain stands content, if you 
 shall be obliged to say, what we think in our own 
 judgment you should say, that you cannot see in this 
 extension, along the fringes of a great garment, of 
 our right to fish over portions of this region, anything 
 
HALIFAX FISHERY COMMISSION 401 
 
 which equals the money value that the British 
 Dominion and Provinces certainly receive from an 
 obligation on our part to lay no duties whatever upon 
 their importations of fish and fish-oil. But while we 
 are not here to depreciate anything, it is our duty to 
 see to it that no extravagant demands shall pass unchal- 
 lenged, to meet evidence with evidence, and argument 
 with argument, fairly, before a tribunal competent and 
 able. We do not mean that our side shall suffer at all 
 from too great depreciation of the evidence and argu- 
 ments of the counsel for the Crown, as we feel quite 
 sure that the cause of the Crown has suffered from 
 the extravagant demands with which its case has 
 been opened, and the extravagant and promiscuous 
 kind of evidence, of all sorts of damages, losses, and 
 injuries, which it saw fit to gather and bring before 
 this tribunal, from the fisherman who thought that 
 his wife had been frightened and his poultry-yard 
 robbed by a few American fishermen out upon a lark, 
 to the Minister of Marine and Fisheries of the Do- 
 minion, with his innumerable light-houses and buoys 
 and improved harbors. We are to meet argument 
 with argument, evidence with evidence, upon the 
 single question submitted ; and that is, as I have had 
 the honor to state before, "Is there a money value in 
 this extension of our right, or rather this withdrawal 
 of the claim of exclusion, on the part of Great Britain, 
 greater than the value which Great Britain certainly 
 receives from our guaranty that we will lay no duties 
 whatever upon her fish and fish-oil?" 
 
 Now, may it please your Excellency, the question 
 is not whether two dollars a barrel on mackerel and 
 one dollar a barrel on herring is prohibitory, because 
 we had a right, before making this treaty, to lay 
 
402 RICHARD HENRY DANA, JR. 
 
 duties that should be prohibitory, if those were not. 
 If two dollars were not, we could lay as much as we 
 pleased; so that it would be an imperfect considera- 
 tion of this case, it has been all along an imperfect 
 consideration of this case, to ask the question whether 
 two dollars a barrel is prohibitory, whether two dol- 
 lars a barrel on mackerel or one dollar a barrel on 
 herring can be overcome by any commercial method 
 or enterprise of the Dominion and the Provinces. 
 The question has been between the right to be secured 
 against laying duties indefinitely, on the part of the 
 United States, on the one hand, and this extension 
 of the right of fishing a little nearer to the shores, on 
 the other. We could, if we saw fit, make a kind of self- 
 adjusting tariff, that whenever fish rose above a cer- 
 tain price, then the Dominion fish might be admitted, 
 and otherwise not; or we could hold it in our hands, 
 and legislate from day to day as we saw fit. 
 
 Before leaving this question of the money value 
 of the withdrawal of the claim of exclusion from a 
 portion of this coast by Great Britain, I must take 
 the liberty to repeat to this Court, that I may be sure 
 that it does not escape their fullest attention, that 
 the right to exclude us, independent of the Treaty of 
 1818, we do not, and never have acknowledged; and 
 by the Treaty of 1818, we arranged it as a compro- 
 mise on a disputed question. That claim to exclude 
 is contested, difficult of interpretation, expensive, 
 and dangerous. The geographical limit is not easily 
 determined; in respect to bays and harbors, it is 
 entirely undetermined, and apparently must remain 
 so, each case being a case a good deal sui generis; and 
 the meaning and extent of the power and authority 
 which goes with that geographical extension beyond 
 
HALIFAX FISHERY COMMISSION 403 
 
 the shore, whatever it may be, is all the more uncer- 
 tain and undetermined. Under the Treaty of 1818, 
 my country certainly did agree that she would not 
 fish nor assert the claim to the right of fishing within 
 three miles of a certain portion of this great bay. 
 Great Britain, by the Treaty of 1871, has withdrawn 
 all claims to exclude us from that portion; and we 
 agreed that if there is any pecuniary value in that 
 beyond the pecuniary value of what we yield, we 
 stand ready to make the requisite compensation. 
 
 It is extremely difficult, certainly to my mind, and 
 I cannot but think, from conversation and reading, 
 that it must be to others, to determine the pecuniary 
 value of a mere faculty, as we may call it, a faculty 
 according to the Roman law, a liberty, perhaps, of 
 endeavoring to catch the free-swimming fish of the 
 ocean. What is its pecuniary value? How is it to be 
 assessed and determined .^^ Why, it is not to be assessed 
 or determined by the amount of fish actually caught. 
 That may be very small, or may be very large. The 
 market value may be raised or decreased by accident; 
 a war may so cut us off from making use of the privi- 
 lege, that we should take nothing. It does not fol- 
 low, therefore, that we are to pay nothing. Some 
 cause, some accident, some mistake of judgment, 
 may send a very large fleet here, at a very great ex- 
 pense of men and money; we may make a very large 
 catch, more than we can dispose of, but the pecuniary 
 value of that catch is no test of the value of the lib- 
 erty of trying to catch the fish. Then, what is the 
 test? Is the use made a test? Although, at first glance, 
 it might seem that that was scarcely a test, yet I 
 think that, on the whole, in the long run, if you have 
 a sufficient period of time to form a fair judgment, if 
 
404 RICHARD HENRY DANA, JR. 
 
 your judgment is based upon the use made by persons 
 who are acting for their own interests in a large market, 
 then you may form some judgment from the use actu- 
 ally made. This case has been likened by the counsel for 
 the Crown to one where an individual has hired a farm, 
 and on the farm there is a house or dwelling, and he 
 has not used it. Of course he has to pay for it, whether 
 he uses it or not. It is at his disposal; it belongs there; 
 it is fixed there, and he may enter it when he pleases, 
 and it is of no account whether he does use it or does 
 not. But if the question was, whether a certain re- 
 gion of a city and the buildings thereon were of real 
 value or not, and it was brought up as an argument 
 against them, that they were not wholesome and not 
 habitable, certainly the fact that in the market, for 
 a long period of years, purchasers or tenants could 
 not be found, would be a very strong argument 
 against their value. 
 
 Now, with reference to these fisheries, what is the 
 value of the mere faculty or liberty of going over 
 these fishing grounds, and throwing overboard our 
 costly bait, and embarking our industry, capital, and 
 skill, in the attempt to catch the fish.^^ We venture 
 to say, that we have had many years of experience, 
 and that there have been long periods of time when 
 those fisheries have been opened to us, and they have 
 been closed for short periods of time; that from 1871 
 down to the present time we have also had a fair test; 
 and when we show, by undisputed testimony, that 
 the citizens of the United States, during long periods 
 of time, and as a result of long experience, have come 
 to the conclusion that they are not of sufficient value 
 to warrant them, as merchants and as men acting 
 for their own interests, to make much use of them, 
 
HALIFAX FISHERY COMMISSION 405 
 
 I submit that we have brought before the tribunal 
 a perfectly fair argument, and a very valuable test; 
 because it is not what one man will do with one house; 
 it is not what one ship-master or one ship-owner may 
 fancy about the inshore or the outshore fisheries; 
 but it is a question of what a large number of men, 
 acting for their own interests, in a very large market, 
 full of competition, will do. If, on inquiring into the 
 state of that market, and the conduct of such men, 
 who cannot be governed by any peculiar and special 
 motive bearing upon this case, we have produced a 
 fair and influential consideration, we claim that that 
 is entitled to its fair w^eight. You might well say, 
 perhaps, of a few fishermen of Gloucester, that so 
 deep was their hostility to the British Provinces, that 
 they would be willing to abstain from using these 
 fisheries, just for the purpose of reducing the amount 
 that this tribunal might find itself called upon to 
 adjudge. But, if there should be one such man, so 
 endowed with disinterested malice, I am quite cer- 
 tain that this tribunal will not believe so of the entire 
 fishing community of buyers and sellers, fishermen 
 and merchants, acting for a series of years, in view of 
 their own interests. If, therefore, we have shown, as 
 we certainly have, that the use of this Bay fishery, as 
 an entirety, the whole of it, deep-sea and inshore 
 alike, has steadily diminished in market value, that 
 our ship-owners are withdrawing their vessels from 
 it, that fewer and fewer are sent here every year, and 
 that they have said, man after man, that they do not 
 value the extension of the territorial privilege, where 
 that extension is always inshore, bringing them into 
 more dangerous and less profitable regions, — that 
 being the case, we ask your Honors to consider all 
 
406 RICHARD HENRY DANA, JR. 
 
 this as fair proof of the slight value which is actually- 
 put, by business men, acting in their own interests, 
 upon what has been conceded to us. 
 
 Now, what is this that has been conceded to us, or 
 rather, what is this claim of exclusion from which 
 Great Britain has agreed to withdraw herself during 
 the period of this treaty.^ What is the privilege? 
 It is the privilege of trying to catch fish within that 
 limit. That is all it is. Now, if in company with this 
 privilege, Great Britain had furnished the fish, so 
 that we should not have to employ vessels, or men, 
 or skill, or labor, or industry, furnished them to us 
 on the wharf at Prince Edward Island, then there 
 might be some analogy between that and a lease. 
 What is it like.^ Is it like the value of a privilege to 
 practise law? Not quite, because there always will 
 be lawsuits, but it is not sure that there always will 
 be mackerel. Suitors, irritated men, may be meshed 
 within the seine which the privileged lawyer may cast 
 out; but it does not follow that the mackerel can be. 
 On the contrary, they are so shrewd and so sharp that 
 our fishermen tell us that they cannot use a seine 
 within their sight; that they will escape from it. But 
 the lawyer is so confident in the eagerness of the client 
 for a lawsuit, that, instead of concealing himself, and 
 taking him unawares, he advertises himself and has 
 a sign on his place of business. Suppose we were to 
 compare it to the case of a lawyer who had a general 
 license to practise law in all parts of a great city, but 
 not a monopoly; everybody else had the same right; 
 but he was excluded from taking part in cases which 
 should arise in a certain suburb of that city, — not the 
 best, not the richest, not the most business-like, — 
 and which had lawyers of its own, living there, accus- 
 
HALIFAX FISHERY COMMISSION 407 
 
 tomed to the people, who asserted a right to conduct 
 all the lawsuits that might arise in that district. What 
 would it be worth to a lawyer who had the whole city 
 for the field of labor, plenty to do, to have his right 
 extended into that suburb? What would it be worth 
 if that suburb was an indefinable one, not bounded 
 by streets, but by some moral description, about 
 which there would be an eternal dispute, and about 
 which the lawyer might be in constant trouble with 
 the policeman? What would be its value? Who can 
 tell? Or a physician or merchant. Suppose a merchant 
 is asked to pay for a license to buy and sell, to keep 
 a retailer's shop; everybody else has the same right 
 that he has, and half the people are doing it without 
 any license; but he is asked to pay for a license. 
 What is it worth to him? Why, not much, at best. 
 But suppose that the license was confined to the right 
 to deal in Newfoundland herring. W^hile everybody 
 else could deal with other fish, his license extended 
 his trade to Newfoundland herring alone. Why, his 
 answer would be, "There are plenty of herring from 
 other places that I can deal with. There is a large catch 
 in the Gulf; there is a large catch on the Labrador 
 shore; and what is it worth to me, with my hands 
 full of business, to be able to extend it a little farther, 
 and include the dealing with this particular kind of 
 fish?" 
 
 None of the analogies seem to me to hold. Your 
 Honors can do nothing else than first to look at the 
 practical result in the hands of business men ; and the 
 result is this: to those who live upon the shore and can 
 go out day after day, and return at night, in small 
 boats, investing but little capital, going out whenever 
 they see the mackerel and not otherwise, and coming 
 
408 RICHARD HENRY DANA, JR. 
 
 back to finish a day's work upon their farms, — to 
 them it is profitable, for almost all they do is profit; 
 but to those who came from a distance, requiring a 
 week or a fortnight to make the passage, in large 
 vessels, which the nature of the climate and of the 
 seas requires should be large and strong and well 
 manned, who have the deep sea before them, and 
 innumerable banks and shoals, where they can fish, 
 — to them, the right to fish a little nearer inshore is 
 of very much less value. That is the position of the 
 American. The other is the position of the English- 
 man. And the fact that we have steadily withdrawn 
 more and more, from that branch of the business, 
 is a proof that it is of little value. 
 
 Then, beyond that, I suppose you must make some 
 kind of estimate, for I am not going to argue that the 
 faculty is of no value. I suppose the right to extend 
 our fisheries so far is of some value. I can find no 
 fair test of it. But recollect, Mr. President and 
 gentlemen, as I say again, that it is but a faculty, 
 which would be utterly useless in the hands of some 
 people. Why, it has been found utterly useless in the 
 hands of the inhabitants of this Dominion. What 
 did they do with it before they took to their day and 
 night boat-fishing? What has become of their fishing 
 vessels? Gone! The whole inshore and outshore 
 fishery became of no value to them, until they sub- 
 stituted this boat-fishing, which we cannot enter 
 into. Then, having before you this very abstract 
 right or faculty, obliged to disconnect from it every- 
 thing except this, — that it is an extension of the field 
 over which we had a right to work, — you can get 
 nothing, I think, upon which you can cast a valuation. 
 Nor is it strictly analogous to a field for labor, because 
 
HALIFAX FISHERY COMMISSION 409 
 
 a field for labor is a specific thing. When you buy it, 
 you know what it will produce ; and if you sow certain 
 seed, you will get certain results; and then, having 
 deducted the value of your labor, and skill, and in- 
 dustry, and capital, and allowed yourself interest, 
 the residue, if any, is profit. That depends upon the 
 nature of the soil with which you have been dealing. 
 But nothing of that sort can be predicated of the free- 
 swimming fish. They are here to-day and there to- 
 morrow; they have no habitat; they are nobody's 
 property, and nobody can grant them. 
 
 I have dealt with this subject as I said we were to 
 deal with it; not to depreciate it unreasonably, but 
 to analyze it, and try to find out how we are to meas- 
 ure it. And having analyzed it in this way, — which 
 I am sure is subject to no objection, unless I carry it 
 to an extreme; the methods which I have used in 
 themselves are subject to no objection, — it cannot 
 be strange to your Honors that the people of the 
 United States said, through their government, that 
 in securing from Great Britain her withdrawal of this 
 claim of exclusion from these three miles, we did it, 
 not for the commercial or intrinsic value of the right, 
 so much as because of the peace and freedom from 
 irritation which it secured to us. 
 
 And that leads me to say, what perhaps I should 
 have otherwise forgotten, that in estimating the value 
 to the people of the United States of the right to 
 pursue their fisheries close to the shore in certain 
 regions, you are not to estimate what we have gained 
 in peace, in security from irritation, from seizures, 
 and from pursuit. Those are the acts and operations 
 of the opposite party. It is the value of the right to 
 fish there, alone, that you are to consider. Why, if 
 
410 RICHARD HENRY DANA, JR. 
 
 you pay to an organ-grinder a shilling to go out of 
 your street when there is sickness in your house, it 
 does not follow that his music was worth that price. 
 Nobody would think of considering that a test of the 
 value of his music, if a third person was appointed to 
 determine what it was. So, here; what we were will- 
 ing to do to get rid of a nuisance, of irritation, of 
 dangers of war, of honest mistakes, and opportunities 
 for pretended mistakes, — what we were willing to 
 pay for all that, is no proof of the price at which we set 
 the mere liberty of being there peacefully and in the 
 exercise of a right. 
 
 Your Honors will be glad to know that I am now 
 going to take up the last point of importance in our 
 case; and that is, the value of the free trade which this 
 treaty has given to all the people of the Provinces. 
 Recollect what that value is. It is true that in 1871, 
 when we made this treaty, our duties were two dol- 
 lars a barrel on mackerel and one dollar a barrel on 
 herring; but our right was to make these duties what- 
 ever we pleased, — absolute exclusion, if two dollars 
 and one dollar did not exclude. We had a right to 
 legislate with a simple view to our own interests in 
 that matter; and neither the Crown nor the Dominion 
 could be heard on the floor of Congress. But we have 
 bound our hands ; we have pledged ourselves that we 
 will put no duties on any of their fish of any kind, 
 fresh or cured, salted or otherwise, or their fish-oil. 
 They may, so long as the treaty lasts, be imported 
 into any part of the United States without any in- 
 cumbrance or duty whatever. Now, that the United 
 States is the chief market for the mackerel of these 
 Provinces, I suppose it cannot be necessary for me to 
 refer to any evidence to remind your Honors. We 
 
HALIFAX FISHERY COMMISSION 411 
 
 have had before us the merchants who deal most 
 largely in Prince Edward Island, Mr. Hall and Mr. 
 Myrick, and we have had two or three or more mer- 
 chants of Halifax, who did not come here for the 
 purpose of testifying against their own country, and 
 in favor of the United States; and from all this evi- 
 dence it appears conclusively that, with the excep- 
 tion of some inferior mackerel, ill-pressed or ill-cured, 
 and not much the worse for heat, that may be sent 
 to the West Indies to be consumed by slaves, the 
 entire product goes to the United States. There is no 
 market for it in Canada proper; and the merchants 
 here, the dealers in fish, lie awaiting the telegraphic 
 signal from Boston or New York to send there what- 
 ever of best mackerel there is, now that they are free 
 from duty. I therefore think I may safely pass over 
 the testimony introduced to prove that the United 
 States is the great market. Some statistics were pre- 
 pared to show that a duty of two dollars a barrel was 
 prohibitory. In my view, it is quite immaterial. I 
 cannot see how it is material, because, having the 
 power to lay any duties we pleased, we have agreed 
 to lay none, and the benefit to Great Britain, to these 
 Provinces, and to this Dominion, is the obtaining of 
 a pledge not to put on any duty, high or low, from a 
 people who had the right to exclude the fish utterly, 
 or to make their utter exclusion or their admission 
 dependent upon our sense of our own interests from 
 day to day. 
 
 The evidence presented by my learned friend Judge 
 Foster, and by my learned friend Mr. Trescot, to 
 show that two dollars a barrel was prohibitory, on 
 the testimony of these gentlemen from Prince Ed- 
 ward Island, and from the leading dealers in Province- 
 
412 RICHARD HENRY DANA, JR. 
 
 town and in Gloucester, was certainly abundantly 
 sufficient. I think those gentlemen from Prince Ed- 
 ward Island said that if those duties were re-imposed, 
 they should retire from the business. Mr. James H. 
 Myrick (page 432) in answer to the question, "I 
 understand you to say that if the duty on mackerel 
 were re-imposed in the United States your firm would, 
 except for a small portion of the season, give up the 
 mackerel business and turn to something else.^^" said, 
 "That is my opinion, decidedly." 
 
 Then Mr. Pew, of Gloucester, testifies to the same 
 effect; but I suppose there can be no doubt, under 
 this weight of testimony. But the money charge 
 against Great Britain is for the privilege of exemption 
 from prohibitory duties, whatever may be prohibitory, 
 whether it be two dollars or more. 
 
 Now, how was it, with this plain fact in view, that 
 the learned counsel for the Crown were able to pro- 
 duce so many witnesses, and to consume so much 
 time, in showing that they did not, after all, lose much 
 by two dollars a barrel duty? Why, my learned 
 friends who have preceded me have exposed that very 
 happily. I fear if I were to say anything, I should 
 only detract from the force of their argument; but 
 I think it is fair to say, that it will rest on our minds 
 after we have adjourned and separated as a most 
 extraordinary proceeding, that so many men were 
 found in various parts of the Island, and from some 
 parts of the mainland, who came up here and said 
 that the fact that they paid a duty of two dollars on 
 a barrel of mackerel before they sold it in the States, 
 which is their only market, did not make any differ- 
 ence to them. They said it did not make any differ- 
 ence. They did not say it made little difference, but 
 
HALIFAX FISHERY COMMISSION 413 
 
 they said it did not make any. Now, if they had said, 
 "We can catch the fish so much cheaper, because this 
 is our home; we can catch them so much cheaper, 
 because we catch them in cheap vessels and with 
 cheap materials, close by where we live, that we can 
 afford to undersell, to some extent, the American 
 fishermen; and therefore the two dollars a barrel is 
 not all to be counted to our debit," that would be 
 intelligible. But these fishermen suddenly, by the 
 magic wand of my learned friend, the Premier of the 
 Island, and my learned friend who represents — I 
 do not know in how high a position — the Province 
 of New Brunswick, were all turned into political 
 economists. "Well, my friend," says the learned 
 counsel for Prince Edward Island, with that enticing 
 smile which would have drawn an affirmative answer 
 from the flintiest heart, "My dear friend, about this 
 two dollars a barrel duty: does not that affect your 
 profit in selling in Boston?" — "No," says the ready 
 witness. — "And why not?" — "Why, because the 
 consumer 'pays the duty.'' Then the next witness, 
 under perhaps the sterner — but still equally effec- 
 tive — discipline of the counsel from New Brunswick, 
 has the question put to him, and he says, "No"; and 
 when he is asked how this phenomenon is to be ac- 
 counted for, he says, too, that ^'the consumer pays 
 the duty''' ; until, at last, it became almost tedious to 
 hear man after man, having learned by heart this can- 
 tilena, — "the consumer pays the duty," — perfectly 
 satisfied in their own minds that they had spoken 
 the exact truth, say that it did not make any dift'er- 
 ence. 
 
 What school of politicians, what course of public 
 lectures, what course of political speaking, what 
 
414 RICHARD HENRY DANA, JR. 
 
 course of newspaper-writing, may have led to that 
 general belief, or at least expectation, of those fisher- 
 men who came here as political economists, of course 
 it is not for me to say. But I have observed one thing, 
 that even with my limited knowledge of political 
 economy, and under even my cross-examination, not 
 one of those witnesses could explain what he meant 
 by the phrase, "the consumer pays the duty"; nor 
 could he answer one question that went to test the 
 truth of the maxim. " Suppose the duty had been five 
 dollars a barrel, would it have been true that the con- 
 sumer paid the duty, and that it would not disturb 
 you at sdW" Well, they did not know but that, in 
 that case, it might be a little different. "But the 
 principle would be the same? " No, they did n't know 
 how that would be. "Will the demand continue, at 
 that price.^" That they did not know, but they 
 assumed it would. 
 
 The truth was, as the Court must have seen, that 
 they were simple, honest men, who had a certain 
 phrase which they had learned by heart, which they 
 used without any evil intent, which they supposed 
 to be true, and which, to their minds, cleared the 
 matter all up. They seemed to think there was a 
 certain law, — they did not know what, — a law of 
 nations, a law of political economy, by which it came 
 to pass, that, whenever they brought a barrel of 
 mackerel to Boston to sell, the purchaser went kindly 
 to the custom-house and paid the duties, and then, 
 having paid the duties, was prepared to deal with the 
 owners of the fish on the same terms as if he had not 
 .done so, buy the fish, and pay them just what he 
 would pay an American; and by some law, some in- 
 exorable law, the duties were paid by this man; and 
 
HALIFAX FISHERY COMMISSION 415 
 
 the duties having been paid by him, the owners might 
 go into the market to sell as low as anybody else. I 
 think the question was not put, but it might have been 
 put to them: "Suppose the duty, instead of being laid 
 by the United States, had been laid by the Provinces. 
 Suppose the Dominion, for some reason or other, 
 had laid a tax of two dollars a barrel on the exporta- 
 tion of fish to the United States .^^ " — where would 
 this political economist from Gaspe and from Shediac 
 have been then? Why, certainly he would have had 
 to pay his two dollars a barrel before his fish left the 
 Provinces, and he would have landed in Boston with 
 his barrel of mackerel, so far as the duties went, two 
 dollars behind the American fisherman. 
 
 I suppose it to be the case, that the British subject 
 can catch his fish and get them to Boston cheaper 
 than the American can. I give them that credit on 
 this calculation, and I hope your Honors will remem- 
 ber it when you come to consider what they have 
 gained by the right to introduce their fish on free and 
 equal terms with us. They are persons who can catch 
 cheaper and bring cheaper than our own people. 
 However, without reasoning the matter out finely, 
 we must come to this result: that if the American can 
 supply the market at the rate of twelve dollars a 
 barrel, and make a reasonable profit, and the Cana- 
 dian can furnish his fish at the rate of eleven dollars 
 and make a reasonable profit, and has two dollars 
 duty to pay, he is one dollar behind, and so on. This 
 is an illustration. It must ordinarily be so. And the 
 only time when it can be otherwise is when the Ameri- 
 can supply fails, and fish become very scarce. I am 
 sure that when I began the investigation of this case, 
 I should have thought that it was in the main true, 
 
416 RICHxiRD HENRY DANA, JR. 
 
 that as fish became scarce on the American coast, 
 and from the American fishermen in the Bay every- 
 where, the British fishermen coming in there could, 
 perhaps, afford to pay the duty and still sell. But 
 such is not the result. The figures have shown it. 
 That has been proved. The difficulty is, that mack- 
 erel is not a necessity. It is not British mackerel 
 against American mackerel, but it is British salted 
 mackerel against every eatable thing in nature, that 
 a man will take to rather than pay very high prices. 
 And it is true that fresh fish are more valuable and 
 more desirable than salt fish; that fresh fish are in- 
 creasing in number; that they are brought into mar- 
 ket in quantities, ten, twenty, a hundred per cent 
 larger than they ever were before, and that the value 
 of the salted mackerel is steadily and uniformly 
 decreasing. 
 
 They brought men here, also, who stated, under 
 the same inffuence, that they would rather see the 
 duties restored, and have the three-mile fishery 
 exclusively to themselves, than to have what they 
 now have. But I observed that the question was 
 always put to them in one form: "Would you rather 
 have the two-dollar duty restored?" The question 
 was never asked them: "Would you rather go back 
 to the state of things when the United States could 
 put what duty upon your fish they might see fit, and 
 preserve your monopoly of the three miles?" No 
 man would have answered that question in the aflSrm- 
 ative. I venture to say, may it please this learned 
 tribunal, that no man of decent intelligence and fair 
 honesty could have answered any such question 
 affirmatively. And those who said they would rather 
 go back to the same state of things testified under a 
 
HALIFAX FISHERY COMMISSION 417 
 
 great deal of bias; they testified under a very strong 
 interest, on a subject right under their eyes, which 
 they felt daily, and which they may have been made 
 to feel by the urgency of others. They did not suffer 
 at all. It was not they who suffered from the attempt 
 to exclude us. It was amusement to them, though 
 it might have been death to some of us; and they 
 imagined that if they did not have the duty to pay, 
 which they all based their answer upon, of course 
 they would rather go back to free trade and exclusion, 
 for in their minds it amounted to that. They had 
 not the duty to pay, although one was laid; and of 
 course with no duty to pay, they would rather go 
 back to that old state of things, and have the ex- 
 clusive right to fish within three miles. I think that 
 illusion may be safely predicated of nearly all the wit- 
 nesses brought upon the opposite side, by the counsel 
 for the Crown. 
 
 A good deal of time was taken up on each side in 
 presenting extracts from the speeches of politicians 
 and parliamentarians, and men in Congress, as to 
 what was the real value of free trade in fish, and the 
 real value of the right to fish within three miles. 
 Some extracts were read by the learned counsel for 
 the Crown from speeches made by certain members 
 of the American Congress, who had a point to carry; 
 and some arguments, much stronger, were produced 
 by us from members of the Dominion government, 
 who also had a point to carry. I do not attach the 
 very highest importance to either of them. I hope I 
 am guilty of no disrespect to the potentates and 
 powers that be in saying that, because I have always 
 observed that men in public life who have points 
 to carry will usually find arguments by which to 
 
418 RICHARD HENRY DANA, JR. 
 
 carry them, and that their position is not very differ- 
 ent from that of counsel, not before this tribunal, 
 but counsel in court, strictly speaking, who have a 
 point to maintain, and who have a verdict to get, 
 because, woe to the statesman whose argument 
 results in a majority of negatives, because he and his 
 whole party, under the Dominion system, go out of 
 power. It is not so with us. Our members of Con- 
 gress speak with less responsibility. They do not 
 represent the government in the House, nor do they 
 represent the opposition in such a sense that they are 
 bound to take charge of the government the moment 
 those in charge fail of retaining public approval. Our 
 politicians, even in Congress, are a kind of "free- 
 swimming fish." They are rather more like a horse 
 in a pasture than like those horses that are carrying 
 the old family coach behind them. They feel more 
 at liberty. 
 
 When we consider that the Dominion parliamen- 
 tarians speak under this great responsibility, and 
 meet an opposition face to face, who speak under 
 equal responsibilities, when we consider that fact, 
 and the number of them, and the strength of their 
 declarations, all to the effect that the Provinces could 
 not survive our duties any longer, and that in giving 
 up to us the right to fish within the three miles, much 
 was not surrendered, I think your Honors, without 
 reading it all over, or comparing these arguments, 
 argument for argument, may say at once that what- 
 ever weight is to be attached to them, far more weight 
 is to be attached to the utterances of the British 
 oflScers than to the few American politicians who may 
 have lifted up their voices on this subject, in their 
 irresponsible way. Moreover, — your Honors cannot 
 
HALIFAX FISHERY COMMISSION 419 
 
 have forgotten it, — the fishermen of Provincetown 
 and Gloucester remonstrated against this Treaty of 
 1871. They remonstrated against it as hostile to 
 their interests. Be it so. They were good judges of 
 their interests. They stated that taking off the duties 
 would make the fish cheap. They thought so; and 
 they did not consider that the right to fish (and they 
 were fishermen, and knew their business) within the 
 three miles was any compensation for that. And the 
 remonstrance was made at the time, and it was ear- 
 nest. The men went to Washington to enforce it. 
 While men dealing in fish remonstrated against this 
 concession, the officers of the British Crown, who were 
 responsible, and whose constituents were fishermen 
 and fish-owners, along a certain line of the Provinces, 
 were contending earnestly for the treaty, as beneficial, 
 absolutely, to the Provinces. 
 
 Well, it has been said that they knew all the time 
 that there was money to be paid. They knew no such 
 thing. They knew there might or might not be money 
 to be paid, because this tribunal does not sit here to 
 determine only the quantum that the United States 
 shall pay, but first and foremost to determine whether 
 anything shall be paid, and as to that, these ofiicers 
 of the British Crown could not pass any judgment. 
 It certainly has abundantly appeared in this case, 
 that the exportation of fish into the United States, 
 and the value of the fish here, has risen and fallen 
 steadily, and almost uniformly, with the right of free 
 trade, or the obligation to pay the duty. From 1854 
 to 1866, when there was free trade in fish, and we had 
 the right to fish where we pleased, and they had free 
 trade, and sent their fish to the American markets, 
 immediately their mackerel fishery increased in 
 
420 RICHARD HENRY DANA, JR. 
 
 value. Their boat-fishing, instead of being a matter 
 of daily supply for the neighborhood, developed into a 
 large business. The boats were owned by merchants, 
 large quantities were shipped from them, and the 
 business increased twofold, threefold, tenfold, as one 
 of their own witnesses has stated, stimulated by the 
 free American markets. I am reminded that the wit- 
 ness said it had increased an hundredfold. Your 
 Honors will perceive my moderation in all things. 
 The witness to whom I refer is the fellow citizen of 
 our friend the Premier of the Island, Mr. John F. 
 Campion, and I think he recognized him immediately 
 upon his appearance on the stand : — 
 
 "Q. You say that the number of boats and men engaged in 
 the shore fishery have increased; has the catch increased to any 
 appreciable extent? A. It has increased to the same ratio as 
 the boats. 
 
 "Q. In quite the same ratio? A. Yes. 
 
 "Q. To what extent did you say the number of boats had 
 iucreased — 100 per cent? A. I would say that this has been 
 the case within the last ten years." 
 
 ''One hundred per cent," says Mr. Campion, from 
 Prince Edward Island. He says this increase has 
 taken place within the last ten years; but he does not 
 undertake to define how far that increase began before 
 1866, whether it continued in the interval between 
 1866 and 1871, and how far it was resumed after- 
 wards. But we find that five years after the conclu- 
 sion of the Washington Treaty, the boat-fishing had 
 increased one hundred per cent; and we know that 
 it is the freedom of trade in fish that has made the 
 boat-fishing of those islands; that has brought about 
 their increase in size, which every witness has testi- 
 
HALIFAX FISHERY COMMISSION 421 
 
 fied to who has been asked the question. I do not 
 know whether my learned friends have asked the 
 question or not, but we have asked it, and it hav- 
 ing been testified to by two residents there, Mr. 
 Hall and Mr. Myrick, and the counsel for Great Brit- 
 ain, having had ten days allowed them to bring 
 rebutting testimony, brought none, we may therefore 
 consider that matter as settled, that their growth 
 has been largely in boat-fishing, — in the number 
 of boats, the number of men employed, the quantity 
 of the catch, and the amount of capital invested, 
 — and that an examination will show that it is to 
 the freedom of trade in fish that they owe it 
 entirely. 
 
 I will read a few words to your Honors from Mr. 
 Hall's testimony, who has had very large experi- 
 ence, living — or if not living, doing business — 
 on the northern part of the bend of Prince Edward 
 Island. 
 
 Then we have the testimony of Mr. James R. 
 McLean of Souris, P. E. I., called by the other side, 
 and coming from the strongest point in favor of com- 
 pensation, that is, the bend of the Island. 
 
 There has been put into my hands what may be 
 called an "account stated" on this subject of the 
 balance between what is gained by the Provinces 
 by the removal of the duties, and what we gain by 
 the extension of our right to fish. The principle on 
 which it is made up is most unfavorable to us. I do 
 not think it is a sound one; but some persons may. 
 At all events, it is the most unfavorable to us : — 
 
422 RICHARD HENRY DANA, JR. 
 
 Great Britain 
 
 To United States, Dr. 
 
 To saving of duties on fish and fish-oil for 12 
 years, averaged from the returns of '74, '75, 
 and '76, from Appendix O $4,340,700.00 
 
 Cr. 
 By value of mackerel caught within 3 miles of 
 coast for 12 years, at $3.75 per barrel, allowing 
 one-third to have been taken within 3 miles of 
 the shore, and assuming the catch for each 
 year as equal to that given in the Port Mul- 
 grave returns for 1874 (63,0783/^ bbls.). . .$1,046,177.50 
 Balance due United States $3,394,522.50 
 
 We were obliged to take the Port Mulgrave returns 
 for the year 1874, because, as your Honors will recol- 
 lect, nothing could extract the returns for 1875 and 
 1876 from the hands of the British counsel. No words 
 of advice, no supplication, no bended knees, — no- 
 thing could get from them those returns, so favorable 
 to the United States; and we took the returns of 1874. 
 
 But, supposing it to be true that the exporter does 
 not pay all the duties, — of course nobody believes 
 that he pays nothing; but give him the fairest pos- 
 sible chance, supposing he pays one-quarter, and the 
 consumer pays three-quarters ; the result then is that 
 against $946,177.50 credited to Great Britain, we put 
 one-quarter of the United States duties remitted, 
 $1,085,175, and it leaves a balance of $138,997.50 in 
 favor of the United States. 
 
 So that, bringing this matter as far as statistics can 
 bring it, getting the value of the fish in Prince Ed- 
 ward Island, irrespective of the labor put upon it 
 afterwards, assuming one-third of the fish to be caught 
 
HALIFAX FISHERY COMMISSION 423 
 
 within the three miles, and to be of equal value with 
 those caught outside, which certainly is not true; and 
 supposing that of the duty of two dollars a barrel, 
 only one-quarter is paid by the exporter, still the 
 balance remains in favor of the United States. If, 
 gentlemen of the Commission, such is to be the mode 
 of treating this subject, by taking values, and bal- 
 ancing one against the other, that is the result. 
 
 I do not suppose, myself, it is possible to arrive at 
 any satisfactory result by any such close use of sta- 
 tistics, on the other side or on ours. But a few general 
 principles, a few general rules for our guidance, cer- 
 tainly are to be found in all this testimony and in all 
 this reasoning. You have the United States able to put 
 on what duties it pleased. You have its actual duties at 
 two dollars per barrel, substantially prohibitory, which 
 everybody said was prohibitory, except those deeply- 
 instructed political economists who came here with 
 the impression that some good friend paid the duties 
 for them, to enable them to get into market on equal 
 terms with everybody else. That you have with cer- 
 tainty. Against that, you have the most speculative 
 opinion in the world; and that is as to the value to 
 us of a franchise, or a faculty, or a privilege, or a 
 liberty, to pursue the free-swimming fish of the ocean 
 a little farther than we ordinarily pursue him, with 
 every vessel of ours coming into competition with 
 fishermen from boats, who have every advantage 
 over us, and to ascertain the value of that franchise, 
 privilege, faculty, or whatever you may call it, irre- 
 spective of all the capital or industry that must be 
 employed in its exercise. 
 
 I came here with a belief much more favorable to 
 the English cause, — I mean, as to what amount, if 
 
424 RICHARD HENRY DANA, JR. 
 
 any, Great Britain should receive, — than that with 
 which I leave the case. The state of things that was 
 developed was a surprise to many; the small value of 
 the extension of the geographical line of fishing to our 
 vessels, — I mean, to vessels such as we have to use, 
 — to the people of the United States, and the certain 
 value that attaches to the Provinces in getting rid of 
 duties, has given this subject an entirely new aspect, 
 and has brought my mind very decidedly to a certain 
 opinion; and I am not instructed by my government 
 to present any case that I do not believe in, or to ask 
 anything that we do not think is perfectly right ; and 
 the counsel for the United States are of one opinion, 
 that when we ask this Commission to decide that 
 there is no balance due to Great Britain, in our judg- 
 ment, whatever that judgment may be worth, it is 
 what justice requires the Commission should do. 
 
 I have finished what is my argument within the 
 time which I intended last night; but, Mr. President 
 and gentlemen, I cannot take leave of this occasion, 
 and within a few days, as I must, of this tribunal, 
 without a word more. We have been fortunate, as 
 I have had the pleasure to say already, in all our cir- 
 cumstances. A vulgar and prejudiced mind might 
 say that the Americans came down into the enemy's 
 camp to try their case. Why, gentlemen, it could not 
 have been tried more free from outside influence in 
 favor of Great Britain, had it been tried in Switzer- 
 land or in Germany. This city and all its neighbor- 
 hood opened their arms, their hearts, to the Ameri- 
 cans; and they have not, to our knowledge, uttered 
 a word which could have any effect against the free, 
 and full, and fair decision of our case. We have had 
 the utmost freedom. We have felt the utmost kindli- 
 
HALIFAX FISHERY COMMISSION 425 
 
 ness everywhere. The counsel on the other side have 
 met us with a cordiality which has begun friendships 
 that, I trust, will continue to the last. I can say, in 
 respect to my associates in this case (leaving myself 
 out), that America has no cause to complain that her 
 case has not been thoroughly investigated by her 
 agent and counsel, and fully and with great ability 
 presented to the Court; and I am certain that Great 
 Britain and the Dominion, represented here by an 
 agent from the Foreign Office, devoted to the work 
 before him, assisted by the constant presence of a 
 member of the Dominion government, largely ac- 
 quainted with this whole subject, and with five coun- 
 sel, one from each Province of the Dominion, all 
 capable, all indefatigable, with knowledge and skill, 
 cannot complain that they have not been fully and 
 ably represented. But, after all, the decision, the 
 result, depends upon you three gentlemen who have 
 undertaken, two of you at the request of your respec- 
 tive countries, and His Excellency at the request of 
 both countries, to decide this question between us. 
 
 It has been said, I have heard it, that your decision 
 will be made upon some general notion of what, on 
 the whole, would be best for the interests of the two 
 countries, without much reference to the evidence 
 or to the reasoning. Mr. President and gentlemen, 
 we repudiate any such aspersion upon the character 
 of the Court. We know, and we say it in advance, 
 not that we hope this tribunal will proceed judicially, 
 and decide in accordance with the evidence and the 
 weight of reasoning, but that we cannot allow our- 
 selves to doubt it. We may venture to congratulate 
 your Honors and your Excellency in advance, that 
 when this decision shall have gone out, whether it 
 
426 RICHARD HENRY DANA, JR. 
 
 give pleasure or pain to the one side or the other, the 
 question will have been decided upon those prin- 
 ciples which it is manifest the treaty determined it 
 should be decided upon, not from some local or na- 
 tional view of policy for the present or future; not 
 for the sake of what some persons hope may by-and- 
 by result in something better than the present treaty; 
 but that you will have confined yourselves to exactly 
 what the treaty asks and empowers you to do, — to 
 determine what is now the pecuniary result of the 
 contrasted articles of the treaty. On such a determi- 
 nation of the controversy, whatever may hereafter 
 follow from it, each of your Honors will know that 
 you have been governed by principle, and by that 
 strict rule of conduct which alone can give a man 
 peace at the last. 
 
LETTERS FROM A FATHER TO A SON 
 
/^■(7l ^H 3 Oi^ c ji 
 
XVI 
 LETTERS FROM A FATHER TO A SON 
 
 Note by the Son 
 
 One problem, ever old and ever new, taking each generation 
 substantially unprepared, is the treatment of a son by his 
 father. Of course, each new father ought to be prepared, but 
 rarely is he. WTiat father, having brought up a family with 
 boys, has not wished in the retrospect to have corrected mis- 
 takes? A father who feels otherwise is pretty surely a bigot to his 
 own past. I suppose one explanation for this state of unpre- 
 paredness is that few realize the real psychological crisis there 
 is in early childliood. Again, the father is usually preoccupied 
 in earning the support of his wife and coming children, in mak- 
 ing a home, in establishing his own career and laying the foun- 
 dations of hoped-for success in hard work. 
 
 Besides that, the problem is not a simple one. It is many- 
 sided. A father who thinks he has solved it with his first son 
 finds it far from solved when he applies his first theory to a 
 second boy; and the poor father may have to doubt all his the- 
 ories when he comes to the sixth child, if he be so happy as to 
 have six. 
 
 The old woman who lived in the shoe, had, to be sure, but one 
 solution for all, and that is the humor of the rhyme; but had 
 she taken her multifarious task thoughtfully, she would have 
 found that the forty-second, if that is the number with which her 
 children stopped, would have given her wearied brain a new task. 
 
 Complicated as the problem is as applied to different boys, 
 there are yet some general principles of pretty universal appli- 
 cation, which are only too often overlooked. Anything, there- 
 fore, that will aid a father in solving such problems is worth a 
 sacrifice of personal feelings and the exposure of private failings 
 
430 RICHARD HENRY DANA, JR. 
 
 by a son who owes so much of what he is not and pretty nearly 
 all he is, to the wise treatment by his father. 
 
 My father's first four children were daughters. On the birth 
 of the second, his journal shows how he philosophized himself 
 and his wife into a state of content; but says, nevertheless, "I 
 should like to train up a son." As a preface to these letters to 
 me, I have decided to show what his idea of "training" was; 
 and the more am I led to take this course by the fact that I 
 have told several perplexed fathers, who came to me for advice, 
 the story of my father's treatment of me, and in every case with 
 signal profit, — more than one father having thanked me with 
 tears in his eyes for the reclamation of his son's confidence and 
 aflfection, brought about by adopting a similar course. Also 
 this will show a side of my father not to be seen in the Biography 
 or Speeches. 
 
 At the tender age of eight, I exhibited traits such as have led 
 many a boy, less fortunate in his father, to the career of a criminal 
 and outcast. At this time, I played chiefly with boys from one 
 to two years older than myself, and in justice to my parents' 
 care and forethought, I should add that they were sons of most 
 estimable persons. I had such pride and delight in being taken 
 into their circle, that I stood ready to repay this mark of esteem 
 by utter loyalty to their wishes. 
 
 Playing fireman with a garden water-barrow, such as was 
 used in those days, for an engine, we wanted some sign of office, 
 which we thought should be swords; and we could use these 
 swords also, in those ante-bellum days, playing soldier, but for 
 the latter purpose we wanted, above all, a gun. We found that 
 a neighbor had some brass stair-rods not then in use, which we 
 could convert into swords, and also a shotgun, with powder-horn 
 and percussion-cap box, all kept in the L of his house. These 
 we longed to possess, the latter for shooting birds as well as for 
 parading and drilling, to say nothing of satisfying a craving to 
 possess something so important and manlike. I well remem- 
 ber how it was suggested that I should do the breaking ^ and 
 
 ^ Lifting a latch in order to enter by a door for an unlawful pur- 
 pose is " breaking." 
 
LETTERS FROM A FATHER TO A SON 431 
 
 entering, and how flattered I felt at being chosen for the task. 
 We all went into a dense copse of fir trees near the house to be 
 looted, and I, leaving the others behind, crept forward along the 
 ground, under cover of the branches, until in plain sight of the 
 L where the coveted things were kept. Watching each window 
 and seeing no one in sight, I got up and boldly sauntered along 
 over the short intervening space, lifted the latch, opened the 
 door, entered, and soon came back with the brass rods and some 
 bright colored chemicals in glass bottles. These latter had fasci- 
 nated my eye. I had seen Professor Horsford kindly entertain- 
 ing a party of children with experiments in chemistry. He 
 brought forth wonderful colors from simple mixtures, and told 
 of the marvels that could be produced by chemicals. The chem- 
 icals which had caught my eye were not exactly the same he had 
 used, but they were as bright in color, and brought to the imagi- 
 nation vague but exciting possibilities of making gunpowder 
 perhaps, and of I hardly know what else. 
 
 Laden with this booty, I was praised for my courage and 
 called a "brick." This stimulated me to fresh venture, and a 
 few days later, following the same tactics from the same copse, 
 I returned to my companions with the longed-for gun, powder- 
 horn and cap-box, which we concealed beneath the trees until, 
 under cover of darkness, we got them to the hiding-place in the 
 shed of the house of a particeps criminis. Some week or so later, 
 we learned that the owner was making inquiries among his 
 neighbors about the gun, and that the boys of the vicinity, in- 
 cluding ourselves, were suspected. I took the powder-horn and 
 sunk it in a ditch to avoid detection. In all this I felt no guilt; 
 there was an exhilaration, a suppressed excitement, a sense of 
 power in the doing. The only uncomfortable feeling I then 
 experienced was fear of ultimate detection, which, however, I 
 thought remote. Of course, we all promised not to betray one 
 another. 
 
 The hardest trial came when I was questioned by my father, 
 who had been told of the loss and the suspicion attaching to our 
 "gang." Here I did feel guilt. My father had always trusted me, 
 and instructed me to tell the truth at all hazard. However, 
 
432 RICHARD HENRY DANA, JR. 
 
 though I hated to do it, though it gave a wrench to my heart 
 which I distinctly recall to this day, I shielded my fellow thieves 
 with so confident a manner and so straight a look of the eye, that 
 my father did not doubt my word. No thought crossed my mind 
 of shielding my confederates by false accusation of myself, as 
 does the Figlia di lorio of d'Annunzio. It was only a question of 
 standing by our compact of secrecy, or telling the whole truth 
 in detail. Nor could I have succeeded by confessing my part 
 alone and withholding the names of the others, as Harry did in 
 "Daisy Chain." It was known who were my constant and, at 
 that time, only playmates, they had been seen with me near the 
 locus and about the time, and they had possession of most of the 
 articles. Soon after, I forget just how, my companions were 
 found out. They confessed all, and I was brought to book as 
 well as they. 
 
 Here was just cause for moral indignation. I had not only 
 stolen, but had lied with a straight face to a trusting and devoted 
 father. Now, then, what course should this father pursue? On 
 account of the very intensity of his feelings, he decided to wait. 
 He followed the precept of the Koran, — no judge should settle 
 a matter in anger. Some hours later, he called me into his study. 
 What he had been doing before I came in I do not know, but I 
 believe he had carefully thought it out, and I doubt not, judging 
 from his habits, gone on his very knees in a prayer for help and 
 strength and guidance, to be at his best in this crisis of his boy's 
 life. When in his study, I was told to sit down. He kept on writ- 
 ing for some fifteen long minutes, giving me time for reflection. 
 Then he turned from his upright desk at which he had been 
 standing, and spoke quietly, slowly and seriously. To my sur- 
 prise, instead of fiery wrath, which my school-life had led me to 
 expect, he began with some words of appreciation, saying he had 
 observed my efforts to control my temper, my affection for and 
 obedience to my mother, what he believed to be my real, under- 
 lying, good qualities, which, as he told them, were more than I 
 had ever recognized in myself. Then he spoke of what he hoped 
 for me, his only boy, the only grandson of his father, and of the 
 characteristics for honor, integrity and truth in my ancestors. 
 
LETTERS FROM A FATHER TO A SON 433 
 
 Then he showed sympathy for my special temptations in this 
 case; how he understood I had been influenced by older boys 
 and that I had felt obliged to stand loyally by them. This was 
 followed by calm yet strong reproof, but of a kind that left open 
 the door of hope. He impressed on me the seriousness of what 
 I had done. He showed how it was my duty to refuse to be flat- 
 tered into wrong by other boys, how to show my pluck and cour- 
 age by standing out for what was right and true, and not by 
 doing and standing out for what was wrong and false. Then he 
 spoke of his disappointment in my "falsehood" to him person- 
 ally. I noticed that he did not call it a "lie," though it was one. 
 He did not shelter a harsh word behind the proverbial "spade." 
 He then asked me to speak for myself. So much had he himself 
 said for me that I had nothing to add. I was reduced to tears of 
 contrition. His patience, love, appreciation, over-appreciation 
 of my good points, his sympathy and consideration, in this one 
 interview, raised in my little soul a reciprocal love and devotion 
 which made my father, from that day, my close friend and 
 admired confidant, for the rest of his life. 
 
 This did not work at once a complete reformation, as I shall 
 show. I still had faults to overcome and failures to repent of. 
 The next year, during my father's absence on a trip round the 
 world, I got into a scrape and suffered a gentle whipping, some 
 mortification and, worst of all, the shame and regret of bringing 
 tears to the eyes of a dearly beloved great-aunt. Yet, withal, 
 my father's treatment gave me a fidelity to him, a desire to 
 please him, to realize his hopes, that served as an underlying 
 motive which in the main was supreme. To him at least I was 
 loyal, though far from fulfilling all his wishes for me. Judging 
 from this experience of mine, I believe that many a lad has gone 
 wrong, not from love of wrong itself, perhaps even without the 
 consciousness of being bad, but because his love of adventure, 
 of exercising pluck, ingenuity and resourcefulness, and his loy- 
 alty to friends, have been accidentally determined in a wrong 
 direction, perhaps for lack of higher ideals presented in a way to 
 attract. This experience of mine has given me a deep interest 
 in Judge Ben B. Lindsey's successful dealing with young delin- 
 
434 RICHARD HENRY DANA, JR. 
 
 quents in Denver, in the George Junior Republic, in the methods 
 of Miss Alice Freeman at Wellesley, and of Secretary BoUes and 
 Dean Briggs, and in the new plan of students' council now being 
 tried at Harvard. Let me add, for fear of being misunderstood, 
 this "dealing" and these "methods" do not mean mere lazy len- 
 iency, but the inspiring with high ideals, a task much more diffi- 
 cult, as it is in the end more profitable, than punishment alone. 
 Nor do I believe that punishment should always be omitted in 
 the scheme of training a son. 
 
 Though, as I have already said, often whipped at school, only 
 once did father himself resort to corporal punishment, and that 
 chiefly, I believe, that the sense of force might be behind to help 
 the weak endeavor. The circumstances were as follows. My 
 parents being both away for the day, my elder sisters assumed 
 an authority not delegated to them either expressly or by impli- 
 cation. In some small matter, not involving anything in itself 
 wrong, I refused to submit, and as I continued to oppose what 
 I thought to be both unauthorized and unreasonable commands, 
 they called the servants to assist. I was then just under nine 
 years of age. Finding myself surrounded by this " force majeure," 
 interfering with my liberties, I rushed to my father's wardrobe, 
 got his long sabre and his Colt's revolver, which was loaded and 
 capped, and, cocking the hammer, I aimed the pistol at my ene- 
 mies and held them at bay all the afternoon. As the daylight 
 faded, my courage began to fade with it. I wished myself well 
 out of the situation my pride would not let me abandon. I knew 
 my father would soon be coming home, and before long I heard 
 the front door open and shut, and his step and voice in the hall. 
 To him I surrendered, side-arms and all. He refrained from 
 words, other than to tell me to take my supper in my bed-room 
 alone. An hour or two later he came up and talked the whole 
 matter over. He had given himself, as well as me, time for reflec- 
 tion and calm. We came to the conclusion (I say "we," as I 
 was consulted) that I had better be punished. When the blows 
 came, they were real and hurt; but there was no anger, open or 
 concealed, none of the "It hurts me more than it does you," 
 and no degradation. I had pleaded guilty and joined in the 
 
LETTERS FROM A FATHER TO A SON 435 
 
 sentence. As part of the punishment, I also apologized to sisters 
 and servants, for subjecting them to fear and danger. 
 
 Bringing to bear sympathy and appreciation in dealing with 
 a son is apparent enough, but what may escape the reader's 
 notice is the giving of ample time. How many a parent has 
 "meant well, tried a little, and failed much," as the pathetic 
 epitaph near Lakewood reads, because he has been too "busy," 
 forsooth, to give enough time and thought to the most important 
 business of his life. The faults and waywardness of a child are 
 so annoying, they come at such inconvenient times, they are 
 such interruptions, they seem to "pester" one so, that the in- 
 stinct is to brush them away like a swarm of flies, with some 
 hasty words uttered, perhaps, in the presence of others, leading 
 to injured pride, self-defense, heated argument, and estrange- 
 ment. What is needed is the assignment of time, at an appro- 
 priate place and alone with the child, without hurry or interrup- 
 tion, and as much thought as is required, let us say, to suppress 
 ravages of gypsy moths or to destroy the breeding places of 
 mosquitoes. 
 
 When nearly ten years of age, I had the great privilege of 
 making some new, delightful friendships, chiefly with Daniel C. 
 French, now the famous sculptor, William Brewster, the cele- 
 brated ornithologist, John Nichols, the successful and upright 
 man of business in New York, and with others less intimate, 
 including the two Russells, the late Charles Theodore, lawyer 
 and Civil Service Commissioner, and Joseph B., the public- 
 spirited, high-minded man of affairs. 
 
 As I grew older, at about the age of twelve or thirteen, my 
 father told me those things a son can best learn from his father, 
 warning me against picking up what usually amounts to misin- 
 formation on such subjects from other boys on street corners, 
 and urging me to come to him or the family doctor if and when 
 I needed further knowledge, and otherwise to dismiss such sub- 
 jects from my mind by keeping it busy with interesting topics, 
 whether of work or play. Perhaps such a course was all the more 
 natural and easy for him on account of his high ideals of life. 
 After his death, I met a close friend of his, living in London, who 
 
436 RICHARD HENRY DANA, JR. 
 
 had seen him intimately on every visit he had made to England 
 This friend said, "I wish to have the pleasure of telling you that 
 your father was the whitest soul I ever met." 
 
 Dr. Hamilton Rice, in a recent address before the Harvard 
 Travellers' Club, about his last trip among the savages at the 
 source of the Amazon and Orinoco, spoke of the good family 
 relations of the natives; and, what specially thrilled me, was his 
 account of how the father trained his son, and how the son was 
 the companion of his father in all his enterprises. In our civilized 
 and complicated life, this close companionship is not so easily 
 arranged. In our case, there were the claims of two families, his 
 father's and his own, living in different places. We were the only 
 two well men of both families, so we often had to be separated, 
 even in vacation; and when at last I got through my education 
 and started with him in the law, as I was the fifth child, he was 
 then becoming old and had to go abroad for his health, after six 
 months only of that delightful companionship in work. I cannot 
 pass over this companionship in work without saying with how 
 much deference he, a man of his legal learning and experience, 
 listened to every suggestion from his juniors, including myself, — 
 nay more, suggestions he courted. 
 
 Out of his busy life, he made opportunities to be with me and 
 his other children. He gave time to repeat poetry to us, to ex- 
 plain, in his wonderfully clear way, many things natural and 
 legal, and to tell interesting and amusing anecdotes at table. 
 He contrived to take a long walking trip with me through the 
 White Mountains, while I was on a vacation from St. Paul's 
 School. Sunday afternoons he read with me. We conned Hor- 
 ace's Odes, which were wretchedly presented by my instructor 
 at Harvard, we read Milton's "Paradise Lost" twice in full, and 
 selected parts oftener, "Paradise Regained," " Samson Agonis- 
 tes," much of Bacon's "Novum Organum," some of Coleridge's 
 philosophy, Edmund Burke's orations, and other poetry and 
 philosophy, interspersed with or followed by most illuminating 
 and delightful talks. We frequently read the Second Lesson or 
 the Gospel for the day in the Greek, Latin, or French testament. 
 As was customary with many men of his own time, he preferred 
 
LETTERS FROM A FATHER TO A SON 437 
 
 to re-read, dwell on, and absorb some of the best things in liter- 
 ature rather than seek for the new, or less good of the old. 
 
 But Mr. Dana's "training up a son" was by no means an 
 approach to coddling. On all but stormy days, the children were 
 sent out for a short run, usuallj' in the garden, before breakfast. 
 He wished his son to be manly and self-reliant. One evening he 
 found me reading the "Arabian Nights" into what were for me 
 late hours. I had my mind filled with genii and Aladdin lamps 
 and a general upsetting of the laws of nature. I believe I was 
 about eight years old. He told me to go out for some fresh air be- 
 fore going to bed. As I passed down the path, I neared the high 
 gate-posts. Each was topped with a large white wooden ball. 
 On these balls points of light glittering through the foliage came 
 and went, or moved slowly to and fro. Suddenly to my horror, 
 instead of balls of wood, they seemed heads of genii, glaring at 
 me with flaming eyes and ominous smiles. I slowly backed to- 
 wards the front porch, and then, when near enough to be safe, 
 turned and ran into the house. My father, seeing the situation, 
 ordered me to go out again and conquer my excited imagination, 
 and to do it alone ; and alone I walked down the path, passed the 
 posts, which had then resumed their teies de bois with flickering 
 light, but trembling lest the genii should reappear. I took a short 
 run and returned, again alone passed these posts, my misgiving 
 eyes glancing from one to the other, but I presume I was more 
 .self-reliant from conquering my fears, though I was mighty glad 
 to get back safe in the house with others about me. 
 
 I used to sleep in a finished attic room, leading out of an attic 
 hall. This hall got its daylight through glass panels in the upper 
 part of three doors opening into three attic rooms, one of these 
 rooms being unfinished. In this unfinished room was the gym- 
 nasium, with its "horse," ladders, side-weights, etc., piles of 
 trunks, and open eaves leading to dim distances containing for 
 us, when young, dim horrors which even at ten had not entirely 
 disappeared when alone at night time or in my dreams. Mount- 
 ing the attic stairs bedward, with a lighted candle in my hand, 
 as my head came on the level of the floor, I saw, under a bed in 
 this attic hall, a man, with boots toward me. Back I turned and 
 
438 RICHARD HENRY DANA, JR. 
 
 began to descend, not too fast at first; for fear of exciting sus- 
 picion and inviting pursuit, I moved as if I had merely forgotten 
 something and wished to go back to get it, until I was on the 
 second flight down, and then I ran pell-mell into the dining-room 
 where the elders were all sitting before the fire, closed the door 
 behind me, and told what I had seen. My father said I was grow- 
 ing up to be a young man and must not yield to fear; it was prob- 
 ably imagination, some bundle or the like under the bed; and 
 back I was sent alone, though with the promise of support from 
 a rear-guard in case of need. 
 
 Well ! I mustered all my courage, or rather bravado, and went 
 back making more than usual noise, stepping heavily like a 
 grown person. When my eyes were level with the attic floor 
 again, I peered round the corner. There was the bed and the 
 floor under it, but no man in sight! I had not even the consola- 
 tion of seeing a bundle or anything else that could be taken for 
 a man under the bed, not the smallest thing; but this absence 
 of anything was not altogether reassuring. What had become of 
 the man? As I passed the door of the unfinished attic, with its 
 two glaring eyes of upper glass panels, I had a horrible suspicion 
 that the intruder had transferred himself into this unfinished 
 attic, and might be watching me from these same glass panels; 
 nor, after I was inside my own room and had shut the door, was 
 I altogether comfortable at the two glass eyes in that door, 
 which drew my attention with a fatal fascination while undress- 
 ing and in bed, until I fell asleep. 
 
 To this day I feel sure there was a real man under that bed. 
 He must have been warned by my rapid descent of the lower 
 stairs and taken flight while we were discussing the matter in 
 the dining-room. I do not think it can have been all imagina- 
 tion, for I have never imagined an object out of the whole cloth. 
 There has always been at least a sheet hung near a window and 
 flapping in the breeze, or wooden gate-post balls with glittering 
 points of light, or some such basis of my boyish fears. 
 
 My father encouraged me to take all the ordinary, small risks 
 of games and sports on land and water with all my companions, 
 and I had my full share of narrow escapes. There was never. 
 
LETTERS FROM A FATHER TO A SON 439 
 
 however, any suggestion of extra caution as being the only son 
 and grandson, not even after I had been hauled out of the 
 Botanic Garden pond where I had been fishing, and had been 
 brought home in a wheelbarrow, dripping wet and apparently 
 half drowned, at the age of six; nor after I was partly stunned 
 and nearly drowned from striking my head on the bottom of 
 Glacialis, diving in shallow and muddy water; nor after two 
 serious falls from high trees; nor on being hit by stones in one 
 of the fights between the followers of Engine No. 1 and of the 
 East-Cambridge engine; nor after falling through thin ice while 
 skating; nor after some narrow escapes at the great Boston fire, 
 even though a cousin was killed by a falling building close to 
 where I had just been. 
 
 The same cynic may say: "Oh, yes, this is a clear case of 
 neglect on the part of a man absorbed in politics and law!" Lest 
 this may be thought, let me quote from Mr. Dana's journal of 
 June 3, 1855, showing the real anxiety which he kept concealed 
 from his only son, the object of his care. "During the last few 
 weeks, we have had unusual sickness and some perils and deliv- 
 erances in our household . . . the next day week . . . our dear 
 boy, the darling of our hearts, fell from his nursery window, 
 second story, to the ground, and although he was picked up and 
 found to be in his senses, conscious and apparently unhurt, yet 
 for several days we were anxious about him, but by the great 
 mercy and blessing of God, he suffered no injury whatever. 
 There are two windows to his nursery on that side, one directly 
 over the stone steps to the cellar and the other over the soft 
 grass. He fell from the latter," 
 
 He urged on me principles of courtesy, nay, chivalry, towards 
 women. As to religious instruction, the letters and parts of 
 Adams's Life speak for themselves. 
 
 He warned me against any aristocratic tendency or reliance 
 on family alone. He said, "Do not be misled by the dear, good 
 women at Chestnut Street" (my grandfather's house); and, 
 dropping quotation marks, as I do not remember his exact 
 words, he continued somewhat as follows. First, as a matter 
 of fact, ours is not a great family, though he believed it to be an 
 
440 RICHARD HENRY DANA, JR. 
 
 honorable one. The Danas of Piedmont, Italy, if (as at that time 
 he thought likely) we are descended from them,^ were educated 
 men, several having been professors in the University of Turin 
 in various generations; but they were not noble, there was no 
 "castle," and the town of Dana at the family home was but a 
 hamlet. He said that the first settler in this country, Richard 
 Dana, and his sons, were but farmers and local magistrates. 
 The others in the direct line have, to be sure, been Harvard 
 graduates, and have taken part in the struggles for liberty. One 
 has been a delegate to the Continental Congress, signed the 
 articles of confederation, has been an unaccepted Minister to 
 Russia during the Revolutionary War, and was Chief Justice 
 of Massachusetts. There were in the maternal lines also two 
 colonial governors and a signer of the Declaration of Independ- 
 ence; but none on either side has held any really great position. 
 There has been no President of the United States, no Cabinet 
 officer, no judge of the Supreme Court at Washington. Fully 
 half the people you meet, said he, of the old American stock, 
 have as much, and many have far more, to be proud of. But 
 second, and more important, he told me, is the danger to a 
 young man of relying upon what his ancestors have done instead 
 of doing things himself. In so far as high character, education, 
 and devotion to country in one's ancestors may stimulate a 
 young man to imitate their careers and fear, in words that come 
 from the very dawn of poetry, "to bring shame on the stock 
 of the fathers," these may well help him. It is said, "Blood 
 tells"; but as far as that means anything, it means that it tells 
 in what the descendants are and do, and not in what they are 
 not and do not. In short, a family good name is a blessing or a 
 curse, just as we use or abuse it. These may seem platitudes, 
 said he. Perhaps they are; but, in the words of the Massachusetts 
 Bill of Rights, "A frequent recurrence to the fundamental prin- 
 ciples" is "necessary," and, unfortunately, on this subject, only 
 too necessary. So many Americans, and in growing numbers, 
 are turning good family names into claims of superiority and 
 
 1 For various reasons, the theory of Italian origin is pretty much 
 abandoned by the genealogists of the family. 
 
LETTERS FROM A FATHER TO A SON 441 
 
 submitting themselves to ridicule. I am sure, said he, you will 
 not be of this number. 
 
 As to some of the dangers of our times, he taught me to be- 
 lieve that science, philosophy, art, literature and the brother- 
 hood of man were the glory of the human race ; but luxury its 
 debasement. 
 
 So much for precept; but how about example? As I have said, 
 Mr. Dana's religious feelings and opinions are pretty well ex- 
 pressed in the Life by extracts from his journals and letters, and 
 there it is also shown how "punctilious" he was in all religious 
 observances. The epithet "punctilious" doubtless would have 
 offended Mr. Dana, for all religion had to him a real meaning. 
 It was a help and inspiration to his life, and there was, in the 
 morning, family prayers, which he kept up with few periods of 
 omission, and the grace said at meals, a simplicity and natural- 
 ness that were far from anything sanctimonious or formal, 
 which he ridiculed and abhorred. He attended church twice 
 on Sundays in the earlier years, usually but once in the latter 
 part of his life. In Lent he managed to give some time to weekly 
 services. Bishop Grafton tells how he, as a young man, was 
 impressed by Mr. Dana's stopping on his way to his office, with 
 green bag in hand, joining in the morning service or kneeling 
 in silent prayer for a few moments. 
 
 In his daily contact with all the household, he set us an ex- 
 ample of being most considerate, thoughtful of the domestics, 
 and to his wife truly chivalrous. Never have I heard an unkind 
 word to his wife, none of the thinly veiled sarcasm, persistent 
 arguing, or unfavorable allusions to "women," none of the pain- 
 ful laying of grievances before guests, none of the funny stories 
 that set wives at a disadvantage, so common, even among those 
 classed as gentlemen, in the far too numerous "Bickerman" and 
 "Retort" families, both in America and abroad. 
 
 He kept up the romance of married life to the end. Describ- 
 ing, "after nearly a year," the return from the marriage journey, 
 he writes in the journal ^ : — 
 
 ' The journal is headed as follows: "A correct account of all such 
 my acts, thoughts and feelings as I am willing to have known to anyone 
 into whose hands this may come." 
 
442 RICHARD HENRY DANA, JR. 
 
 "Those are either vulgar, or weak, or ill-matched persons, 
 to whom what is popularly called the ' honeymoon ' is the envied 
 part of married life. Confidence, respect, tenderness and devo- 
 tion will increase as life goes on, if there is ground to rest such 
 sentiments upon, and capability of feeling them in each of the 
 persons united. A true man and woman may be and sometimes 
 are always lovers. The deference, tenderness, respect and the 
 romantic and chivalrous devotion need never fade away. They 
 never will between two persons really capable of feeling them 
 and calling them out." 
 
 On the birth of their first child, he enters in his journal, June 
 12th, 1842: — 
 
 "If ever man had reason to bless God with his whole heart, 
 it is I. He has given me the best, the most tender, affectionate 
 and faithful, as well as superior and charming wife that man ever 
 had. Her life is spared, and He has added to us a daughter." 
 
 At the end of the first year, is found this journal entry : — 
 
 "S. and I are no less lovers than a year ago. This is the true 
 happiness of married life, when the fervor, the deferential ad- 
 dress, and the sentiment and romance of courtship are not worn 
 away. They never need be." 
 
 Five months later, we find : — 
 
 "Great reason for thankfulness. Carried over land and water 
 . . . and at last finding my dear home and its dearer inmates 
 well and happy." 
 
 Nearly two years after marriage, when his wife walked alone 
 out to Cambridge, to render what sympathy and help she could 
 on the sudden death of Mr. Washington Allston, is this to be 
 found in the journal : — 
 
 "She never looked more lovely to me than when she entered 
 that room." 
 
 Soon after, he writes in the journal : — 
 
 "How vulgar and false is the notion that love — romantic 
 and sentimental love — ceases with marriage:" and then follows 
 more in the same vein as what I have quoted above. 
 
 Journeying to Hartford, Connecticut, he says : — 
 
 "The sail up the river in the boat was most delightful. The 
 
LETTERS FROM A FATHER TO A SON 443 
 
 site of Hartford, as viewed from the river alone, is quite pictur- 
 esque ... it has become a dear place to me. S. fills it to my 
 mind. Everything about it is significant of her. Here she first 
 saw the light . . . here we first united our love and hopes, and 
 here we were united in marriage." 
 
 Hearing praise of his wife's intonation of voice, "the feeling- 
 ness of it," also "her manners, the grace she showed in little 
 things, her taste in dress," etc., he adds: "How much all this 
 delighted me. It was music to my ear and my soul." 
 
 So it goes on in the second volume of the journal. In August, 
 1843, returning from a short summer vacation, his wife and 
 daughter being still away, he writes: — 
 
 "Was glad to enter my home and see the places made dear to 
 me by so many months of happiness and sanctified by the rela- 
 tions of husband and father. Dear S., how you do throw a charm 
 about all that you move in ! Yet it was solitary and somewhat 
 sad." 
 
 And again : — 
 
 "Mrs. Fox sat down and cried when Mrs. Dana did not come. 
 Rarely is it that the head of a house attaches a domestic so to 
 her that she will cry when she does not return. 'So gentle, so 
 lovely, so faithful, so kind!'" 
 
 The next year : — 
 
 " Hartford is full of her to me. ... It is a peculiar, almost an 
 enchanted place." 
 
 Four years after marriage, we again find expressions of deep 
 sentiment. 
 
 At the end of a four weeks' journey with his wife to Niagara, 
 Canandaigua, etc., nearly six years after marriage, is this: — 
 
 "During the last four weeks we have been constantly to- 
 gether. . . . We have agreed that we have only to be always 
 together to make our sentiment perfect." 
 
 At the end of six years of married life, after reading their let- 
 ters written "when we were merely friends," — 
 
 "We can truly say that time works no change in us. Our love 
 is as deep (more deep), as romantic, as anxious, as sentimental 
 as on those days when romantic love too often ends." 
 
444 RICHARD HENRY DANA, JR. 
 
 Then, after seven years: — 
 
 "Dear, dear Hartford. . . . Write letter to S. which takes 
 until past midnight, and then put it in the office that she may 
 get it the next day. . . . How my heart is locked up with hers." 
 
 At the end of eight years, in the third volume : — 
 
 "Reached Wethersfield at 43^, Sarah looking finely and the 
 children all well! How much happiness, how many things to tell, 
 how many warm friends to sympathize in them all!" 
 
 And so it goes on until the journals end; and the sentiment 
 and the tender care do not end with the journals, but keep up, 
 even through years of his wife's nervous prostration and illness, 
 from which she fortunately recovered, and to the last day of his 
 life. 
 
 His tender thoughtfulness of others is perhaps best told in Mr. 
 Adams's Biography, in an extract from his journal, showing how, 
 after having started on a journey to visit his wife at Wethersfield, 
 he got out of the cars at "Framingham," took a train back to 
 Boston and went out to Cambridge, thus delaying his journey 
 two whole days, including a Sunday (there were no Sunday 
 trains then), because he feared to disappoint his little daughter, 
 who had expected to go with him, but who, by some mistake of 
 the maid, had not had her things packed and been made ready 
 in time to join him. On another occasion, at the death of his 
 cousin's son, a promising lad of seven, he sat at the deathbed for 
 the hour together, to comfort and console the bereaved father. 
 
 As to his sense of fun, and how he enlivened the family with 
 anecdotes and witty stories, I may say these stories and anec- 
 dotes were never vulgar nor profane. He sometimes made fun 
 of sanctimonious people, even of well-meaning clergymen or a 
 pompous bishop; but he never permitted jokes on the Bible. 
 All his stories would bear repetition before the highest-minded. 
 He was once, I remember, immensely annoyed by finding that 
 some one had turned one of his anecdotes in a way to make it 
 coarse, and had added some indecent touches not in the original, 
 and, moreover, had told it as one of "Dana's stories." 
 
 As to his views on aristocratic tendencies which I have related, 
 it may be asked how he carried these views out in practice. Some 
 
LETTERS FROM A FATHER TO A SON 445 
 
 of my father's friends believed him, at times at least, to have had 
 such tendencies. Butler made a great point of the "kid gloves" 
 in Mr. Dana's campaign against him in 1868. Perhaps my 
 father's nearsightedness, his inability to recognize faces readily, 
 a certain dignity of carriage that made him seem taller than he 
 was, his high ideals of professional life, and his not infrequent 
 absorption in thouglit may account for part of this belief; but 
 in act as well as in precept, there was at least much of the direct 
 opposite in him. Witness his comradeship with the sailors in 
 his two years before the mast, his interest in them afterwards, 
 even going down to Ann Street to look up his shipmate, Tom 
 Harris, when he heard he had come to town, and not waiting 
 for Tom Harris to call on him; his attending at the deathbed of 
 a former fellow sailor though the poor life had been run out in 
 dissipation; his attachment for the poor Kanakas at the hide- 
 homes at San Diego; his real affection for "Hope" who called 
 him his "Aikane"; his sitting up hours of the night, time and 
 time again, at the "Oven" with "Hope" when ill, and the 
 struggles he had in getting the needed medicine which saved 
 "Hope's" life; and how we find Dana inquiring years afterward 
 about "Hope" from a sailor who was returning from California, 
 and his expression of delight in his journal at getting a message 
 from his dear Kanaka. Then there was Dana's offer to escort, 
 "arm in arm," his client, Burns, the fugitive slave, on the walk 
 from the Court House to the United States cutter that was to 
 take him back to Virginia. As to the "kid gloves," taking this 
 literally, few men of his means dressed so simply or cared so 
 little for such things. 
 
 When I was going abroad, with many letters of introduction, 
 my father warned me against the idle, fast set in society, drawing 
 a clear distinction based upon character and achievement. In 
 his journals, letters and conversation, it is clear that he very 
 much appreciated the sort of courtesy, consideration and public 
 spirit one sometimes finds in the old families. North and South, 
 at home and abroad. So far as an aristocratic tendency meant a 
 worship of old families as such, Mr. Dana had none of it. In his 
 journal, I find this entry: — 
 
446 RICHARD HENRY DANA, JR. 
 
 "Saratoga, July 23, 1850. ... In p. m. long conversation 
 with Sedgwick [Theodore] and Slidell [John] ^ about their com- 
 bination of social exclusiveness with political radicalism." 
 
 His interest in all the affairs of his children was intense. In 
 the midst of hard and exciting professional and political work, 
 he would ask about his daughters' partners at the dance, or 
 would remember and inquire about some of their classmates, 
 especially the talented ones, what marks they received, what 
 bright things they said. 
 
 He was a man of sweet disposition. I have never seen my 
 father lose his temper. I have heard him express great moral 
 indignation at what seemed to him mean or selfish; but in the 
 family, he had a certain humility which was striking when one 
 considers the courage and persistency with which he fought his 
 cases in court and took up and urged unpopular public causes. 
 If corrected (and I suppose every large family has its mentor), 
 he would submit most graciously, even on subjects on which 
 he had a right to pride himself for his knowledge, as, for example, 
 in rhetoric. I remember my father's telling me, some few years 
 after his experience as a member of the Massachusetts Legis- 
 lature, as we were walking past the State House, that he feared 
 he sometimes lacked charity. He believed he had it for children 
 and for the weak and unfortunate; but that the motives that 
 governed many successful members of the Legislature, or by 
 which they governed others, were so small and sordid, that he 
 often showed his disgust or indignation in a way that was cer- 
 tainly not politic (for that he cared little if his duty was clear). 
 He feared he had sometimes weakened his legitimate influence, 
 and perhaps, after all, said he, "it was not altogether Christian." 
 He said, in substance, that many of these men meant well, but 
 had been brought up to low ideals of politics. As things were, 
 they found that through "log-rolling," trading of appointments 
 and the like, were the chief roads to success, and that along these 
 roads were travelling some of the very men they had been taught 
 to admire. 
 
 ^ Of New Orleans; well known in connection with the mission of 
 Mason and Slidell in the Trent affair in 1861. 
 
LETTERS FROM A FATHER TO A SON 447 
 
 A relative of my mother's, a woman of much discrimination, 
 once said to me, "On my first visit at your father's house, I was 
 deeply impressed with his intellect; making a second visit, his 
 courtesy was what struck me most; and on the third, as I had 
 come to feel the deeper things of life, I valued most the religious 
 side of his character." 
 
 Such were some of the methods, both in precept and practice, 
 with which he tried to "train up a son." 
 
 As to my bad spelling, so often referred to in these letters, and 
 which caused my father so much trouble, I may say that it was 
 not the fault of the public schools which I attended, where drill 
 in spelling was most thorough, nor was it caused by my neglect, 
 for I stood occasionally at, and never very far from, the head 
 of the class. 
 
 Finally, may I ask the reader to note, as he sees the following 
 letters, the kindness with which rebuke is administered, the fair- 
 ness, the want of exaggeration of faults, the readiness to admit 
 he was in error, the encouragement, the appreciation and the 
 praise and the personal interest that they manifest. 
 
 Indeed, there is so much of appreciation and praise in these 
 letters that I should never dare to be the one to give them to the 
 public, were it not that I trust every considerate reader will 
 remember my point of view, namely, to show a father's training 
 of a son. This has led me to run the risk of being criticised for 
 publishing so much in praise of myself; — remember, I am show- 
 ing a father's love and cheer. 
 
 What I have painted, I have painted not to the eye alone, 
 but to the inward vision. 
 
 R. H. D. 
 
448 RICHARD HENRY DANA, JR. 
 
 The Letters 
 
 Shakespeare's House 
 Stratford upon Avon, Aug. 8, 1856. 
 My dear little Richard, — 
 
 You are too young [five years old] to value it now; 
 but, if God spares your precious life, you may, one 
 of these days, look back with pleasure upon a letter 
 addressed to you, by your father, from the very 
 house in which the great Shakespeare was born. 
 Your affectionate father, 
 
 RicHD H. Dana, Jr. 
 Master Richd H. Dana, the 3rd. 
 
 Sunday evening [1865]. 
 Dear Richard, — 
 
 I want you to return my list of misspelt words, cor- 
 rected. I also enclose one now, for you to correct. 
 
 Dear R., I wish you to take more pains with your 
 letters. They are very good in their matter and sub- 
 stance, but you are not only very careless in spelling, 
 but in beginning sentences with capitals and in mak- 
 ing sentences in any way. You are now fourteen 
 years old, and should be able to write a letter which 
 can be shown to anyone. 
 
 Write slowly, and correct your own errors. 
 Good-bye, my dear son. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Cambridge, Sept. 10, 1865. 
 My dear Boy, — 
 
 I am answering your letter to your mother, which 
 
LETTERS FROM A FATHER TO A SON 449 
 
 I was glad to find you wrote to her, at once, on reach- 
 ing school. . . . 
 
 We did have a pleasant time, those days of walking, 
 did we not? And the scenery was so grand, and the 
 curiosities so interesting, — the Pool, Flume, Profile, 
 Basin, Profile Lake, and Echo Lake. I hope you will 
 long remember them. 
 
 I do all I can afford to do to improve your health of 
 body and your powers of mind. On your part, you 
 must make return by attention to your studies and 
 conduct, to make yourself a virtuous and well-edu- 
 cated boy. I shall look anxiously to your monthly 
 report, to see how you stand in deportment as well as 
 in studies. 
 
 The thing you have most to guard against is vio- 
 lent and pettish outbreaks of temper. 
 
 ... At Mr. V. R.'s [P. S. Van Rensselaer's], I 
 spent four days very pleasantly. They have a beau- 
 tiful place, maintained with a good deal of wealth 
 and style. 
 
 My kind regards to Dr. Coit and his brother, and 
 to the other gentlemen. 
 
 Write often to us, but pray take more care with 
 your letters. Spell them better, and write a better 
 hand. Good-bye, 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Richmond, Va., Oct. 1, 1865. 
 My dear Boy, — 
 
 I suppose you did not know of my purpose of 
 visiting Virginia, until I had sailed. The cold I had 
 during our walk held on so that I was obliged to get 
 a vacation. I sailed from Boston, Sept. 23 (Saturday), 
 
450 RICHARD HENRY DANA, JR. 
 
 in a steamer, and arrived at Norfolk, Va., Tuesday, 
 26th. 
 
 I saw Fortress Monroe, the Rip-Raps, Newport 
 News, the place where the Rebel ^ ironclad Merri- 
 mack sank our wooden frigates Cumberland and 
 Congress, and she was attacked and driven off by the 
 little Monitor. 
 
 At Norfolk, I visited the Navy Yard, which is 
 almost entirely in ruins, and where are wrecks of our 
 ships-of-the-line Pennsylvania, Columbus, and Dela- 
 ware, and our old frigate United States. All these 
 wrecks are to be restored. 
 
 All the waters from Norfolk to Fortress Monroe 
 are one large harbor, or roadstead, — making one 
 of the grandest in the world. With free labor and free 
 institutions, Virginia will become a great state. ^ 
 
 From Norfolk I went to Richmond, up the James, 
 in a steamer. I passed Jamestown, the oldest settle- 
 ment in the United States, but long ago abandoned, 
 and now marked by a ruin of a church. ^ I passed, 
 also, the points of military interest in McClellan's 
 campaign of 1862, and Grant's of 1864-5, — Malvern 
 Hill, Drury's Bluff, Dutch Gap, Deep Bottom, Ber- 
 muda Hundred, Harrison's Landing, City Point, etc. 
 
 Richmond has a commanding and beautiful situ- 
 ation, at the falls of the James, on seven hills, and 
 is a handsome city. . . . 
 
 ' Not believing the states had a constitutional right to secede, their 
 action could be considered only in the light of a "rebellion," and to be 
 justified only in case there was good cause and ultimate success, as with 
 the rebellion of our colonies against Great Britain. 
 
 ^ Census reports on growth in population and wealth of Virginia 
 have now fully substantiated this prediction. 
 
 " Restored in 1907. 
 
LETTERS FROM A FATHER TO A SON 451 
 
 I took a letter from the Secretary of War to Gen- 
 eral Terry, (the capturer of Fort Fisher), now com- 
 manding the Department of Virginia, and he sent 
 his Chief of Staff out with me, and I visited the works 
 of the Rebels and of our own troops around Richmond, 
 and some of the battle-grounds, — Newmarket, Deep 
 Bottom, Flussel's Mill, Derby town Road, etc., etc. 
 I should like to give you a full description of the way 
 the forts, bastions, bomb-proofs, picket lines, etc., 
 are built, and the huts of the soldiers. 
 
 I next went to Petersburg, where the great fighting 
 was done, and the closest siege, the capture of which 
 caused the evacuation of Richmond. The works here 
 were close together, in some places the picket lines 
 not over one hundred feet apart. I saw here all the 
 chief places of historic interest. 
 
 In Richmond, I saw the deserted halls of the Rebel 
 Congress, looking forlorn enough. General Terry 
 occupies Jeff Davis's Presidential Mansion. 
 
 The sight of all these things makes me deeply 
 grateful for the success of our arms in this dreadful 
 struggle. 
 
 At Christmas I will show you the plans, and ex- 
 plain more to you. In the mean time, go on with your 
 good resolutions and good conduct, and be sure of 
 the affection of your father. 
 
 R. H. Dana, Jr. 
 
 Cambridge, Oct. 25, 1865. 
 My dear Boy, — 
 
 Let me congratulate you. Your last letter to me 
 had not one error in spelling, and was carefully writ- 
 
452 RICHARD HENRY DANA, JR. 
 
 ten. It gives me great pleasure to see you take such 
 pains. 
 
 I did not mean that you should write oftener, for 
 I know you have but little time. I only meant that 
 when you wrote, you should take pains. . . . 
 
 You were right about the corrections. They were 
 in a letter that came while I was at Richmond, and 
 I had not seen them. 
 
 I am glad you told me about the Isthmian badge. 
 I allow for those accidents and embarrassments boys 
 sometimes get into about paying and subscribing. 
 So long as you make it understood that you are 
 neither afraid nor ashamed to be poor, and to deny 
 yourself or refuse what many others may do, and tell 
 me frankly when you doubt about what you have 
 done, or when you have got into an expense without 
 intending it, I shall be satisfied. 
 
 I enclose your report for September. It is very good 
 
 indeed. Go on so; I shall not ask whether you are 
 
 first, second, or third. That is relative. I wish to see 
 
 you 9, 1 but ought to wish every other boy was 9 also. 
 
 Good-bye. 
 
 Your affectionate father. 
 
 Rich H. Dana, Jr. 
 
 Nov. 1, 1865. 
 My dear Boy, — 
 
 I enclosed the pickers for your sled. 
 Your letter of Sunday gave us great pleasure. We 
 are rejoiced to find that you have joined the Confirma- 
 
 1 Highest mark. 
 
LETTERS FROM A FATHER TO A SON 453 
 
 tion Class. If you go on now, and form religious 
 habits, at this critical and turning point of your life, 
 you may pass through the temptations and trials of 
 youth with a pure life, a good conscience, a sound 
 body, a well-improved mind, and with the favor of 
 God and men. If you do not do it now, the chances 
 are greatly against a youth's ever becoming religious. 
 He is then left to all the worst influences of the world, 
 without the aid of God's grace. 
 
 Your last letter had but one mistake. You spelt 
 amount with two m's. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Cambridge, Nov. 12, 1865. 
 
 My dear Boy, — 
 
 Your last letter was carefully written, in a good 
 hand, which I am very glad to see. I am glad you 
 persevere in writing carefully. You have but one bad 
 error in spelling. 
 
 I have not yet received your report for October. 
 It gives me pleasure to know that you like Latin. 
 I wish to see you a good Latin scholar. 
 
 Your box of tools came safely and is in the attic. 
 
 Dr. Coit spoke kindly and favorably of you. He 
 says he never urges or presses boys to be confirmed, 
 and never makes a difference in favor of communi- 
 cants over others, in the way of favors or kindness, — 
 for there must be no premium offered. A boy must 
 be confirmed on conviction, and deliberately, so that 
 it may last and take deep root. He was the more 
 
454 RICHARD HENRY DANA, JR. 
 
 pleased to see you interested in the subject, as it was 
 purely voluntary. 
 
 You remember Mr. Worcester, that old gentleman 
 who lived next to Mr. Longfellow, by the pond. He 
 died last week, and was buried from the Church. He 
 was eighty-one years old, and was distinguished for 
 his great Dictionary and small books on history 
 and geography. 
 
 Good-bye. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 The late elections have all gone in favor of the 
 Republicans. The half-loyal Democrats are thor- 
 oughly put down by the people. 
 
 Cambridge, Nov. 19, 1865, 
 My dear Son, — 
 
 I enclose your report for October. It is all good 
 except the elocution. Is the elocution low because 
 you forget the words, or because you do not speak 
 well? Let me know. I must try to help you when you 
 come home. 
 
 ... I had to deliver a lecture at Gloucester. I 
 have a lecture which I deliver this year on "American 
 Loyalty." 
 
 ... When you come home to Christmas, perhaps 
 we can let you go to a grand oratorio, like the Mes- 
 siah. It will give you new ideas of music, — its 
 majesty and power. 
 
 We shall all be glad enough to see you, when you 
 come for vacation. I hope to see you improving in 
 
LETTERS FROM A FATHER TO A SON 455 
 
 all that goes to make the good, conscientious, kind, 
 and intelligent man. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Sunday evening, Feb. 18, 1866. 
 
 Dear Richard, — 
 
 No one has written you this week, so I write you, 
 that you need not think yourself neglected. 
 
 I was glad to see you go off in good heart, and to 
 hear that you got back in good order, without loss, 
 and were returned to your work encouraged as to 
 your studies. Especially do we take comfort in the 
 thought and time you give to religion, and the efforts 
 you make to lead a moral and upright life. That is 
 the only thing to be depended upon. Everything 
 else may fail. Friends may — and will — die, money 
 take wings, health fail, but the favor of God and con- 
 sciousness of honest efforts to do right will give a man 
 peace at the last. 
 
 Your grandfather [R. H. Dana, Sr.] has been very 
 much depressed by Aunt Sarah's death, and has 
 suffered from a heavy cold, so that we all felt anxious 
 lest he should be called to follow her. But he has been 
 steadily improving for the last three or four days, and 
 we all feel encouraged about him. Aunt Betsey 
 appears beautifully. She is so tranquil, and so re- 
 signed, and so full of hope and religious trust, that 
 it is consoling to see her and talk with her. She has 
 been a truly self-sacrificing and devoted woman all 
 her days. She has done everything for me and Aunt 
 C. and Uncle E.^ from our childhood. 
 
 1 My father's sister and brother. 
 
456 RICHARD HENRY DANA, JR. 
 
 One of your sisters, in turn, stays in Chestnut 
 Street. 
 
 Mamma sends her best love, the others are away or 
 abed. 
 
 Professor Child has been here, and inquired with 
 interest for you. You did not send back the last 
 corrigenda. 
 
 Good-bye, my dear boy. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Feb. 26, 1866. 
 
 My dear Son, — 
 
 I write a word to tell you that your mother has 
 just learned that you have given away your birds' 
 eggs. She did not know it until yesterday, and it has 
 given her great distress. She says she has associated 
 you with that collection, and [cannot] bear to have 
 it go away. She shed a great many tears over it, and 
 said that if you should die, or leave her, she should 
 always want them to remember you by. You recol- 
 lect, too, she did a good deal to help you get some of 
 them. It was generous in you to give them to your 
 friend; but I did not think at the time — as you did 
 not — of her attachment to them. I could comfort 
 [her] only by promising to write to you and ask you 
 whether you cannot properly get them back. Willy 
 Brewster [the ornithologist] is a generous boy, and 
 will understand that you are not recalling your own 
 gift, on your own account. You might send him this 
 letter, if you thought best, and ask him to keep your 
 eggs separate until you come back in the summer. 
 
 Think about this, and let me know how you feel 
 about it. The truth is, it would have been better if 
 
LETTERS FROM A FATHER TO A SON 457 
 
 you had asked your mother's consent, but neither 
 of us thought of it. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Cambridge, March 25, 1866. 
 My dear Son, — 
 
 You wrote me an excellent letter. It gave me and 
 your mother great comfort. I know it is hard to say 
 in a letter all one feels on sacred or delicate subjects; 
 yet you made us understand that you are thinking 
 and feeling seriously on the great subject of religion. 
 
 I wish I had had, when a boy of your age, the teach- 
 ings and exercises of the Church. But our family 
 were then all Congregationalists and held certain 
 views of God and religion known as Calvinism, which 
 were very repulsive and hard. And we young people 
 took no interest in the Church. There were no inter- 
 esting services, — no Easter, no Lent, no Good Fri- 
 day, no liturgy. You have great privileges in all 
 these respects, and religion, though made serious, 
 as it ought to be, is not austere and repulsive. 
 
 I hope Dr. Coit will think you ready for confirma- 
 tion. Yet we submit it all to his better judgment. 
 
 You must not be discouraged when you fail in your 
 attempts to do God's will. Recollect, God does not 
 look so much at what you do as at what you really 
 try to do. The best service is imperfect in His sight. 
 But He blesses the endeavor. 
 
 Your February report is very good, and so is your 
 examination. They are both most encouraging. 
 
 We are all well. I gave your love to them all. 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
458 RICHARD HENRY DANA, JR. 
 
 Cambridge, Apr. 17, 1866. 
 My dear Boy, — 
 
 Your mother and Charlotte . . . will come up 
 two or three days before the confirmation and stay 
 about a week. 
 
 I will come up a day or two before, but cannot give 
 more than two days to it, as I am very hard pressed 
 with work here. You need not engage me a place, 
 as I can board in Concord, for the short time. 
 
 Your mother wants me to remind you that she 
 asked you to buy a present for [your sister] Rosamond 
 at the Fair,i as it was Rosamond who did all the work 
 in getting up the articles we sent you. . . . 
 
 We are rejoiced to hear of your steady, decided 
 efforts for a religious life. Of course, there are fail- 
 ures. It is a contest. The war never ends in this life. 
 Victories and defeats succeed each other, but the 
 final conquest and peace is not on earth. 
 Good-bye. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 We shall be very glad of the mayflowers. 
 
 Apr. 24, 1866. 
 Dear Richard, — 
 
 I can't imagine your losing a fur cap. I should as 
 soon think of losing a bureau or bed. You need not 
 pay for your ball-cap. I will give you the money. 
 
 Don't make yourself nervous about your spiritual 
 1 Missionary Society Fair at St. Paul's School. 
 
LETTERS FROM A FATHER TO A SON 459 
 
 condition. You must be natural and cheerful, and 
 try to cultivate grateful feelings towards God. They 
 will help to keep you in obedience, as much as direct 
 efforts. But we shall soon be up to see you, and talk 
 with you personally. 
 Good-bye. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 October 14, 1866. 
 
 My dear Boy, — 
 
 A course of faithful efforts not only gives you the 
 satisfaction of a good conscience and a peaceful mind, 
 but the pleasure of knowing that you are giving com- 
 fort to others, — to your parents, whose happiness in 
 later life is to depend a good deal on your course. . . . 
 
 I have resigned my office of United States Attorney 
 because I could not adopt the President's [Johnson's] 
 policy and approve his sentiments, and preferred to 
 be in an independent position. . . . 
 
 It gives me great comfort to know that you are 
 happy in your studies and games and school and 
 teachers and classmates. This is a great blessing. 
 Few schools give boys so much satisfaction. After 
 all, too, the mind gives color to all about it. . . . 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Nov. 23, 1866. 
 My dear Boy, — 
 
 It would give us great pleasure to see you at 
 Thanksgiving, and especially your Aunt Betsey and 
 Grandfather would be gratified; but I still think that 
 it is so near to your regular vacation that it would 
 
460 RICHARD HENRY DANA, JR. 
 
 rather take off the edge of your pleasure and of our 
 expectation to come down for that day and go back. 
 
 1 think you had better stick it out until the Christ- 
 mas holidays, and have that to look forward to. It 
 is some expense for me, which it is best to save. If 
 I find your Aunt Betsey has set her heart on it, I will 
 send for you, but my opinion is against your coming. 
 
 Mr. Appleton^ has got home. He left his yacht in 
 England, for the winter. 
 
 Judge French ^ has given up his Agricultural Col- 
 lege, and come back to the Boston Bar. 
 
 We are all well. How blessed it is to live in a 
 Christian family, and under religious influences, and 
 to be conscious that one is really trying to serve and 
 obey God ! May you ever keep that state ! 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Advent Sunday, Dec. 2, 1866. 
 My dear Boy, — 
 
 It is twenty-two years ago to-day that the Church 
 of the Advent was begun by Dr. Croswell. He came 
 to Boston early in November, and organized the 
 parish, and held the first service on Advent Sunday. 
 That led to its being called the Church of the Advent. 
 I proposed the name, and suggested the cross over 
 the altar, and the words "Lo I Come" for the motto. 
 So far as I know, it is the first church in this country 
 or England that ever bore the name. . . . 
 
 Dr. Croswell baptized you, and when he entered 
 
 ^ Thomas G. His yacht, the Alice, was the first boat so small that 
 had ever crossed the Atlantic. 
 
 2 Father of my friend and playmate, Daniel C. French, the sculptor. 
 
LETTERS FROM A FATHER TO A SON 461 
 
 the three names in the Parish Register, all alike, yours 
 and your grandfather's and mine as sponsors, he said, 
 "May there never be wanting a Richard Henry to 
 stand before the Lord!" I want you to remember 
 these things. . . . 
 
 You were duly remembered by us all at Thanks- 
 giving, and missed. We were all well, and had a 
 pleasant time at Aunt Betsey's. 
 
 Good-bye, and may God's blessing rest upon you. 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 February 3, 1867. 
 My dear Boy, — 
 
 ... I missed you very much. This was not only 
 because you are the only boy, but because we had 
 begun to get acquainted and I liked to talk to you 
 and read with you. I was very sorry to be so very 
 much engaged while you were here. I do not recollect 
 ever having so little leisure. I wished to read with 
 you, as a practice in reading, and to get you interested 
 in subjects and to try you in elocution. But I seemed 
 to have scarce an hour. ... It seemed as if I might 
 have become acquainted with your mind, to know 
 more of your feelings and opinions. But, perhaps, 
 if God spares both our lives, w^e may become better 
 acquainted next summer. . . . 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 March 10, 1867. 
 
 My dear Boy, — 
 
 Your last journal, down to the examination, was a 
 good one, and I did not let any one read it, but read 
 
462 RICHARD HENRY DANA, JR 
 
 to the family such parts as I thought you would not 
 object to their hearing. I wish you to feel entirely 
 free in writing, and be sure that nothing will be seen 
 by others except upon my judgment. 
 
 Do not let it be a toil to you, yet stick to it as 
 closely as you can, for it is a good exercise, morally 
 and intellectually. You have improved in spelling. 
 The enclosed list is all the errors — and one of those 
 is not a mistake in letters — in sixteen pages of 
 manuscript. 
 
 As to self-examination, I think you have now 
 arrived at an age when you can lay out your faults 
 into classes, putting together those that are cognate, 
 and examine yourself by them. I have great faith 
 in this process, gone through with at the beginning 
 of a day, in anticipation, as well as at the end of a 
 day, in retrospect. 
 
 I have a speech in the Legislature, which has 
 attracted a good deal of attention in other states, on 
 the repeal of what are called the Usury Laws; i. e., 
 the laws limiting interest on money to six per cent. 
 I favored the repeal of all limits, leaving money to 
 find its level, like merchandise. I am also giving two 
 lectures per week, at the Lowell [Institute], on Inter- 
 national Law, beside my professional duties and 
 attendance on the Legislature, and so am very busy. 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 March 31, 1867. 
 
 My dear Boy, — 
 
 ... In speaking, do not make gestures, unless you 
 feel that you must, — unless nature prompts them. 
 
LETTERS FROM A FATHER TO A SON 463 
 
 And speak slowly, deliberately, and forcibly. A 
 speech without a gesture may be a good one. You 
 have great moral helps in your school. You do not 
 know how little is done for the religious character 
 of boys in most schools. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 [The following letter was in reply to one from me, written 
 when sixteen years of age. I had told how, in conversation, I 
 sometimes left false impressions, for example, of having read a 
 book I had not really read but had only heard about. After 
 receiving father's letter, I made a point of correcting every false 
 impression I might have left, though I no doubt bored others 
 with small matters which gave them no concern.] 
 
 Sunday evening, April 7, 1867. 
 
 My dear Son, — 
 
 . . . Failure in truth comes usually from want of 
 moral courage. People do not dare, especially when 
 facing another or when taken by surprise, to say 
 what may injure themselves, or hurt another. So 
 they take to shifts, evasions, equivocations, and even 
 direct lies. I know persons who can say the truth in 
 letters but not face to face. 
 
 Sometimes falsehood comes from malice or pride. 
 Then it is deliberate and not the result of fear. . . . 
 Recollect that ordinarily want of truth is an effect 
 and not a cause. There is some fault leads to it, as 
 fear, or pride, or malice. You must search for the 
 cause. 
 
 But also make it a serious point of self-examination 
 every night and prayer every morning, — exact truth. 
 Correct yourself in little things, and if you have told 
 
464 RICHARD HENRY DANA, JR. 
 
 any one what is not true, go to him and correct it. 
 This will mortify your pride and be a good discipline. 
 It is a noble thing in you to confess this so fairly, 
 and I argue the best for you from it. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Sunday evening, May 12, 1867. 
 My dear Boy, — 
 
 Your mayflowers came in good order, with a letter 
 to your mother. I am very glad you sent them. . . . 
 
 I think $7 was too much to spend at the fair, for 
 a boy of your age. I have no doubt the others spent 
 as much or more, but the boys are most of them rich, 
 or have rich parents. Did you not, from the $7, buy 
 anything permanent, or anything to give to either 
 of your sisters? You should remember that Rosa- 
 mond took a good deal of pains to get up things, and 
 you should have remembered her by a present. 
 
 . . . You had [better] begin now to write your 
 journal again. It is a good task, and helps you in 
 freedom of expression, as well as in observance of 
 yourself. . . . 
 
 We had a superb Easter at the Advent, and the 
 church was crowded, people standing in the passages. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 June 14, 1867. 
 
 My dear Boy, — 
 
 We enjoyed highly our visit to St. Paul's. Nothing 
 could have been pleasanter, and we were rejoiced at 
 finding you so well, and content, and respected by 
 
LETTERS FROM A FATHER TO A SON 465 
 
 your teachers. Dr. Coit spoke in the best terms of 
 you. 
 
 I remember, perhaps not exactly, a few lines, which 
 I have no time to look up, — from Horace,^ I believe, 
 
 Os homini sublime dedit, coelumque tueri 
 Jiissit, et erectos ad astra ^ tollere vultus. 
 
 I want you to commit this to memory, and say it, 
 when you are walking with bent shoulders and eyes 
 on the ground. Christian humility does not require a 
 man to be prone or downcast. 
 
 I shall try to be up on the 25th, but it is uncertain. 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 Do not trouble to write a journal during the rest 
 of the term, as your studies will be hard. 
 
 Manchester, Mass., Sept. 19, 1867. 
 My dear Boy, — 
 
 We have had one of the Masters of Rugby staying 
 with us for two days, Mr. Lee Warner. We have liked 
 him much. 
 
 I wish you would occasionally write your mother 
 instead of me. It will gratify her. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Manchester, Oct. 1, 1867. 
 My dear Boy, — 
 
 Your few kind words to your mother gave her great 
 pleasure. 
 
 1 From Ovid. Metamorphoses, Book I, 85, 86. 
 
 2 Sidera in the original. 
 
466 RICHARD HENRY DANA, JR. 
 
 We are both glad to know that you are attending 
 to geology and mineralogy. It is well to know the 
 earth on which we live, — its physical history, its 
 powers, actions, and capabilities. This knowledge 
 will make you an attentive observer, wherever you 
 travel, and will give you objects of interest in even 
 the dullest and most unpromising places. Geology, 
 in its larger and higher aspects, is a noble study for 
 thought. You should know the earth, stars, trees, 
 flowers, and birds. Some men go through life as if 
 they were deaf and blind. Such tastes lead one into 
 the country, and out of the artificial city life, and are 
 good for the health of the body and spirit. 
 
 This morning, at breakfast, sitting and standing 
 erect were talked about, and we all agreed in the hope 
 that Richard would be careful and keep his figure 
 erect. Pray don't go drooping and prone, but erect, 
 manly. . . . 
 
 The occasional recurrence of the Holy Communion 
 forms an excellent opportunity for a renewal of life, 
 for, as a mechanic might say, tightening up the screws, 
 or, as they do on the railroads, striking the wheels to 
 see if any are unsafe for the next journey, and oiling 
 the rough and grating places. I am glad to see you so 
 using it. . . . 
 
 Good-bye, my dear son. 
 
 Richard H. Dana, Jr. 
 
 Cambridge, Oct. 27, 1867. 
 My dear Boy, — 
 
 We have got your letter to your mother, in which 
 you tell her of your sickness.^ We are all very sorry 
 
 ^ I suffered much from occasional attacks of slow fever and forms 
 of indigestion, from which I never fully recovered till I had gone through 
 
LETTERS FROM A FATHER TO A SON 467 
 
 to hear of it. Sorry for the discomfort and pain you 
 may suffer, for your loss of the sports and walks, and 
 for the putting back in your studies. When you get 
 this, just put a piece of paper in an envelope and send 
 to me, to say how you are. Don't trouble yourself 
 to write a letter unless you wish to do so. 
 
 Take good care not to get sick. Do not study too 
 hard. No learning or rank will make up for a loss of 
 health and vigor of body and brain. 
 
 ... I promised to send you the Nation, so I have 
 begun to do so. It may be a little too old for you, 
 but I think you will find things there to interest you. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Manchester-by-the-Sea, 
 Sunday, Sept. 20, 1868. 
 
 My dear Son, — 
 
 I have taken my first leisure Sunday here, to write 
 you a letter. One Sunday I was at Windsor,' and 
 another at Newport. 
 
 We have just had service. All there but Sally, who 
 is still in B. or C, and you, and your Aunt C, who 
 has her Roman Catholic service for herself and the 
 servants. Your grandfather read the lessons and I 
 the prayer, sermon, and epistle. . . . 
 
 You have noticed that I have invited all the young 
 men to read [the Lessons], for I think it does them 
 good to be treated as within the body of believers in 
 such common exercises. . . . 
 
 training on a college crew. Since my rowing experience, I have never had 
 returns of such troubles. 
 
 1 Windsor, Vermont, with Mr, WUliam M. Evarts. 
 
468 RICHARD HENRY DANA, JR. 
 
 As to your request for the Nation, I do not feel sure 
 that it is best for you. You had better not get inter- 
 ested in party politics. You are in danger of getting 
 excitement and confidence without real knowledge. 
 By and by, you will read histories and works on the 
 constitution of states and political economy, and will 
 be better grounded in principles from which to judge 
 of passing questions. 
 
 By the way, a teacher ought not to be arguing and 
 enforcing his opinions upon boys. I am sure Dr. Coit 
 would not like it. 
 
 As to the bonds, I do not know who the teacher is 
 to whom you refer; but either he has some sharp 
 point of technical law in his head, or he does not 
 appreciate the nature of the public faith of a nation. 
 The borrowed money of a nation is always a sacred 
 debt, governed not by rules of municipal law, which 
 govern all other debts, but by rules of honor. We 
 borrowed the money when we were in straits, and 
 gave bonds for it, promising to pay so many dollars 
 on each bond. The Republicans say we are bound in 
 honor to pay in gold or silver dollars, or in paper as 
 good. Paper money is a mere promise to pay. Now, 
 when we borrow money and promise to pay it, can 
 we pay it by giving a written promise to pay? It is 
 only an extension of the time of payment. It is, in 
 short, the act of a bankrupt. This nation is not bank- 
 rupt, and is bound in honor to pay. The Democrats 
 thought it would be a popular thing to raise a cry 
 against the bondholders, but it has failed. Our people 
 mean to pay back honestly their borrowed money. 
 
 Do not study too hard. If you are pretty well next 
 vacation, you had best have a Greek teacher every 
 
LETTERS FROM A FATHER TO A SON 469 
 
 other day.^ All send love to you, and are much 
 obliged to you for your full letters. 
 Good-bye, my dear boy. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, Nov. 27, 1868. 
 My dear Boy, — 
 
 Don't sell the sled. You are right as to the feeling. 
 Never sell a present. Never give one away, unless in 
 some case of distress when you have nothing of your 
 own to give. 
 
 If your skates are good, only not as handsome or 
 nice as you would like, keep them. If they are not 
 good, sell them and buy another pair. 
 
 We were all at your Grandpapa's at Thanksgiving. 
 . . . Your health was duly honored. 
 In haste. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Tuesday, p. m., 31 May, 1870. 
 My dear Richard, — 
 
 I have just received your note, but your mother 
 says you have not answered one of the questions she 
 asked you to answer at once. Now, Dick, don't be 
 wool-gathering, but answer them by return mail. 
 
 6. Tell me which is the best hotel in Concord for 
 us to go to. We — Mamma, one of the girls, and I — 
 shall come up Wednesday noon, I hope. 
 
 * To make up loss of lessons caused by illness. 
 
470 RICHARD HENRY DANA, JR. 
 
 Now answer at once these six questions, and you 
 need say no more. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 30 Court Street, Boston, May 12, 1870. 
 Dear R., — 
 
 I enclose a good monthly report. I have written 
 Dr. Coit in favor of your being examined at the June 
 instead of the September examination, and in favor 
 of your entering freshman. 1 . . . 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Portree, Isle of Skye, 
 Aug. 24>, 1870. 
 
 My dear Son, — 
 
 I write you from this strange place, because I 
 possibly may not be back before you enter college. 
 
 Your course at St. Paul's has been such as to entitle 
 you to my entire confidence. At the same time, the 
 college course of four years is one of such moment, 
 and so decisive of one's character and future, that I 
 am naturally desirous of saying a few words to you 
 as you enter upon it. I am the more moved to do so 
 by a sense that it is within possibility — though I am 
 not given to entertaining fears — that I may never 
 see you all again. 
 
 If I should not, you will see that great responsi- 
 bility lies on you as to your mother and five sisters, 
 
 1 Dr. Coit preferred to have boys stay one extra year at school and 
 enter sophomore, so as to avoid what he considered the special dangers 
 of the freshman year. 
 
LETTERS FROM A FATHER TO A SON 471 
 
 — as your grandfather can live but a short time, and 
 there is no uncle or brother. But if I do, as I doubt 
 not, return, I have had so many warnings that my 
 anxious and hard-worked life may end suddenly that 
 your position may at any time be a grave one. 
 
 You know that in such event your first duty is to 
 your mother. For advisors, you will go to Mr. Parker 
 and Judge Hoar, who are my firm friends as well as 
 business trustees. 
 
 I took an expensive Holworthy room for you, in 
 order that you might have the great advantage, 
 whoever may be your chum, of a place by yourself, 
 for reading and meditation. It is of inestimable 
 value. Now, I wish you to bear in mind why it was 
 done, and use it accordingly. Let me propose this to 
 you, — very likely you would do it, of yourself, — 
 when you take possession of your bed-chamber, con- 
 secrate it by an offering to God in prayer. Ask that 
 it may be to you a sanctuary for prayer, for devout 
 reading and thought, and for self-examination and 
 penitence. 
 
 You will also find it a place of retreat from com- 
 pany. And, on that point, you must begin right. At 
 Harvard, you will find a good many idlers and gos- 
 sipers, for it is little better. Such men are cankers 
 of one's time. Never hesitate to say that you are 
 engaged, — that you must study, — and your bed- 
 room gives you a retreat. 
 
 My only fear about your room was that you would 
 have the appearance to others of starting on a scale 
 of expense larger than I wish you to keep up. It is 
 necessary that you live as economically as possible, 
 for my burdens, with your mother and sisters and 
 you, will be very heavy. And anxiety — not work — 
 
472 RICHARD HENRY DANA, JR. 
 
 wears one out. Besides, it is better for you. Self- 
 denial and the habit of refusing others give both 
 strength of character and independence. 
 
 Don't pay much attention to the apparent opinion 
 of classmates as to one another, as to who is or will 
 be this or that, especially at first. The only question 
 is this, — what will a man be in respect of character 
 and acquirements at the end. And as to that, you 
 know that I have no ambition about your relative 
 rank. First, take care of your health. If you are not 
 strong to labor, our family must go down, in poverty 
 and obscurity. Keep health, if you are the fiftieth 
 scholar. If you come out with character, health, and 
 knowledge, that is all. 
 
 Do not get drawn into young girls' society. It is 
 possible that you may become, or may think you are, 
 interested in some one. Think what you are to do on 
 earth. Man is meant to he and to do, and not to be 
 tied down. You have four years of college, and then 
 of a profession, — through all which you must be 
 free, to do whatever will be best for your future. Don't 
 let your good sisters make a ladies' man of you. Take 
 care to use your Sundays at home profitably. 
 
 If you get into any trouble, by your own fault or 
 by accident, come to me at once. I know and can 
 allow for the temptations of youth; and, surely you 
 need not fear that I shall be hard or unsympathetic. 
 Remember that, and treat me as your friend as well 
 as father. 
 
 Good-bye, my dear boy. There is nothing to make 
 you anxious, but everything, with watchfulness, to 
 encourage you. 
 
 Your affectionate father, 
 
 Richard H. Dana. 
 
LETTERS FROM A FATHER TO A SON 473 
 
 Boston, July 11, 1871. 
 Dear R., — 
 
 . . . You will be tempted by this incessant and 
 absorbing interest^ and the constant presence of 
 others. But never let your reading or devotions go 
 by or be slighted. This is to be one of your trials, my 
 dear boy. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, July 15, 1872. 
 
 My dear Boy, — 
 
 . . . Pray be careful about your training. Do not 
 overdo. A gentleman who saw you here last week 
 thought you looked a little overdone. 
 
 I care very little which boat is a few inches or feet 
 ahead, but any, the slightest, injury to your organs, 
 or brain, or blood vessels would be a lifelong distress. 
 Ten persons speak to me of the risk, to one who speaks 
 of the result. 
 
 You know I am not a croaker or fearful. And I 
 have confidence in your discretion and self-restraint. 
 Only, don't let them fail you. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, Aug. 24, 1872. 4 p. m. 
 Dear Richard, — 
 
 I congratulate you on the race ;^ for, though not the 
 victors, it is something to be second out of six. . . . 
 
 1 Freshman boat-races on the Connecticut above Springfield, won 
 by the Harvard, on which I rowed stroke. 
 
 ^ Intercollegiate university race at Springfield. I was rowing stroke 
 of the Harvard "varsity" crew. 
 
474 RICHARD HENRY DANA, JR. 
 
 Besides, my dear boy, it may be better for you in 
 the end, not to have been victorious. It is a disci- 
 pline to your moral character. Perhaps you may be 
 able to thank God for some of these little disappoint- 
 ments and mortifications. An uniformly successful 
 youth is not the best presage for life. 
 
 I think the Harvard men will be generally very 
 proud of the result, ^ although short of what it might 
 have been. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, Aug. 26, 1872. 
 My dear Boy, — 
 
 . . . But, my dear matriculated Harvard student, 
 "knee buckles" is not spelt "nee buckles," and 
 "whom" is the objective case, not "who," e. g. 
 "whom we are expecting," — not "who we are ex- 
 pecting," You must remember that there is a preju- 
 dice in favor of spelling and grammar which it is not 
 wise to cross. 
 
 1 enclose two letters of introduction for you in 
 Philadelphia. I wish you would stay over a few hours 
 there, and call upon Mr. Binney and Judge Hare. 
 Mr. Binney is ninety -four years of age, I think, and 
 in many respects may be called "the first citizen of 
 the Republic." He was a classmate of my uncle;^ at 
 
 ' Amherst first. Harvard second, Yale 1 minute, 16 seconds behind 
 Harvard. 
 
 2 Probably Francis Dana, who was in the class ahead of Mr. Binney, 
 or Edmund T. Dana, who was two classes below. Though not class- 
 mates, they were in college at the same time, and knew Mr. Binney. 
 
LETTERS FROM A FATHER TO A SON 475 
 
 Harvard, a friend of my father, and a most kind and 
 courteous friend to me. It is an honor to you to know 
 him, and he will esteem it an attention on my part to 
 introduce you. Judge Hare is his son-in-law, and a 
 lifelong friend of mine. 
 
 If Mr. Wayne McVeagh is in Harrisburg, call on 
 him, in my name. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Steamer Olympus, off Queenstown, 
 July 18, 1873. 
 
 My and our dear Friends all, — 
 
 Professor Child is invaluable, — never sick, self- 
 sacrificing, obliging, and doing something for every 
 one in need, getting up singing and other entertain- 
 ments, and every afternoon has all the children about 
 him, telling them fairy stories. 
 
 Richard H. Dana, Jr. 
 
 Liverpool, July 21, 1873. 
 My dear Boy, — 
 
 Now, my dear boy, what shall I say of the race.f^ 
 We heard the news, which was in the Times of Sat- 
 urday, — Yale (1), Wesley an (2), Harvard (3). I am 
 sorry for you, for your faithful efforts, your conscien- 
 tious work for two years, deserved success. But 
 Harvard averages better for the two years, I suppose, 
 than any college. Of course, there is a secret history, 
 which I shall hear. As I told you, if you come out in 
 
476 RICHARD HENRY DANA, JR. 
 
 good health, unharmed, I am grateful to God. The 
 all but chance result of a close race of many boats is 
 of no real moment. And, perhaps, the effect on your 
 character may be better than if you had led the race. 
 And that is the great point with you and me and us 
 all. What will you be when you begin the work of 
 the world? That is the question, in God's sight and 
 in the opinion of men. I know you feel all this and 
 appreciate it, and I need say no more to such a man 
 as you are, — commanding the respect as well as the 
 affection of his father. 
 
 Your affectionate father, 
 
 Richard H. Dana, Jr. 
 
 Bex [Switzerland], Aug. 10, 1873. 
 My dear Boy, — 
 
 We . . . reached London on Friday, 25th July, 
 and stayed there a little over a week. In the course 
 of that time, L. [one of his daughters] saw both houses 
 of Parliament in session, heard Mr. Gladstone's 
 speech on the Duke of Edinburgh's annuity, and 
 heard a few words from other public men in each 
 house, and saw most of the eminent public men, such 
 as Lord Granville, the Duke of Argyll, Marquis of 
 Ripon, Marquis of Salisbury, Earl of Derby, Lord 
 Chancellor Selborne, the Archbishop of Canterbury, 
 etc., etc. Then she dined at Lady Frederick Caven- 
 dish's with Lord Lyttelton and William H. Glad- 
 stone, and lunched with Lord and Lady Kinnaird, 
 and on Sunday afternoon heard Canon Liddon preach 
 at St. Paul's, and the Sunday before heard Dr. 
 Vaughan at the Temple and Dean Stanley at West- 
 
LETTERS FROM A FATHER TO A SON 477 
 
 minster Abbey. All three are good speakers, but 
 Canon Liddon is a master of elocution. . . . 
 
 It was a joyful meeting, for which we should hold 
 grateful hearts to God. 
 
 S. and R. had come from Leuke Bad a few days 
 before, so our circle was complete, with the exception 
 of the dear son and brother. But, I brought them 
 your last photograph, which was new to them, and 
 served somewhat to make up for your absence. . . . 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Paris, ^M(7i/.s/ 31, 1873. 
 My dear Son, — 
 
 I do not think naught of success, even in jumping 
 over a pole, where it depends on qualities brought to 
 bear ; and I acknowledge that boat training and racing 
 are a discipline and test of qualities, moral and men- 
 tal, as well as physical. But I assure you that Blaik- 
 ie's tribute to you, in the Herald, as you appeared 
 the night after the race, gave me more satisfaction — 
 I mean true, real satisfaction — than I should have 
 received from the mere fact that your boat was a 
 little ahead of the others. Which boat was ahead is 
 a trifle. What character you have at twenty-five or 
 thirty years of age, is of unlimited importance to you, 
 and of far more interest to me. You have my respect 
 and my entire sympathy in all you did. . . . 
 
 Good-bye, my dear boy, and may God bless you 
 and keep you "under the shield of faith." 
 
 Your affectionate father, 
 
 Richard H. Dana, Jr. 
 
478 RICHARD HENRY DANA, JR. 
 
 P. S. . . . 
 
 The extract you sent me from Mr. Walker was very 
 gratifying. He is a gentleman, and appreciates high- 
 toned conduct in others. 
 
 You have the sympathy and respect of all of us, 
 for we feel that you have acted a thoroughly manly 
 and generous part, and that is the great point. The 
 result confirms the opinion I have always had that 
 a big university race, in which so many boats take 
 part, and in which the "schools" are admitted, would 
 prove unsatisfactory. The sooner they are abandoned, 
 the better. 
 
 I am glad you are at work on the Washington. 
 Read some poetry also, — Shakespeare and Milton 
 and Horace. Some of Burke, e. g. "Economical 
 Reform," "Letters to a Late Noble Lord," "Concili- 
 ation with America." 
 
 Again good-bye, my dear boy. 
 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
 Oxford, Sep. 12, 1873. 
 Dear Dick, — 
 
 I think the Springfield muddle is described in this 
 — Harvard beat, and Yale won.^ 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 ^ This was the year of the double, or so-called "diagonal," finish line. 
 
 How Harvard crossed the real finish line first and then stopped rowing, 
 
 how the judges sighted along a wrong line below the right one, how the 
 
 eferee, relying on the report of the judges, gave his decision in favor of 
 
LETTERS FROM A FATHER TO A SON 479 
 
 Oct. 20, 1873. 
 
 Dear R., — 
 
 I send you a memorandum I have had written, 
 from my dictation, on the subject of your debate. 
 Preserve it, — as I may never make another. Don't 
 debate from it; but read and ponder, and then lay it 
 aside, and speak from your own mind, having digested 
 and assimilated it all. 
 
 You should form habits of filing important papers ; 
 and I think it best to destroy at once what I do not 
 care to keep. 
 
 Affectionate father, 
 
 R. H. D., Jr. 
 
 Oct. 30, 1873. 
 Dear R., — 
 
 I hope your relations with that society ^ are re- 
 established. It gives me pain to think that you have 
 not been able to serve it to advantage. Pray do, for 
 the rest of your course in college. 
 
 I would rather have had you president of St. Paul's 
 Society than of any club in college, — on the ground 
 of duty and character. 
 
 Affectionate father, 
 
 R. H. D., Jr. 
 
 Yale, though the flags had been given to Harvard by the Regatta 
 Committee, and how, on discovering the judges' error too late to change 
 his decision, he published a card over his signature, sajing "The race 
 was not decided upon its merits," is told in the Harvard Book (Univer- 
 sity Press, 1875, vol. ii, pp. 244-246), with diagram taken from the 
 note-book of Mr. Harris, the engineer who laid out the course, explain- 
 ing the error. 
 
 ^ St. Paul's Society, at that time very inactive. 
 
480 RICHARD HENRY DANA, JR. 
 
 June 19, 1874. 
 Dear R,, — 
 
 If you get this letter before your declamation, do 
 not make any gestures because you think them 
 necessary in speaking. Make none unless you feel 
 them. And try to express as much by voice and as 
 little by gesture as possible. Yet, as yours is a speech 
 of some passion (suppressed) there are passages where 
 gesture speaks well. 
 
 Never mind the prize. That is often an accident, 
 and sometimes an injustice. But get the experience 
 of such a speech. 
 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
 July 8, 1874. 
 
 I should like to show myself among your friends 
 on the 16th, 1 but it would not be right for you and me 
 both to be away from Boston at the same time, in the 
 present state of Chestnut Street. 
 
 R. H. D., Jr. 
 
 Boston, July 11, 1874. 
 Dear Richard, — 
 
 I have read Bulwer, but not "The Parisians.'* 
 Although Bulwer began as a dandy, and some affec- 
 tations and dandyisms hung about him, yet there is 
 always good, deep, serious thought and striking gen- 
 eralizations, which interest me. 
 
 Things continue in such a state at Chestnut Street 
 
 1 The day of the university boat-race at Saratoga. 
 
LETTERS FROM A FATHER TO A SON 481 
 
 that I do not feel it right for me to leave Boston, 
 while you and all my family are away. So I must let 
 your mother and C. go alone. . . . 
 
 You know my perverse sentiments about the inter- 
 collegiate regatta system. I do not care which of ten 
 boats is half a length ahead. But I like to have you 
 succeed in what you have spent so much labor and 
 thought upon, and moral force; and my moral sense 
 would be satisfied to see Yale punished for her low 
 tone and cunning and bullying of the last ten years. 
 So, if you succeed, you will find your father greatly 
 pleased and sympathetic; and, if you do not come out 
 first, your father will take it easily, and thank God 
 for your safety, health, moral energy, and character, 
 and feel that a defeat may, in the Providence of God, 
 put you higher in His sight, and even in the things of 
 this world, at thirty years of age than a victory. . . . 
 
 R. H. D., Jr. 
 
 Boston, July 20, 1874. 
 My dear Boy, — 
 
 I should have written you sooner, but the interven- 
 ing of Sunday prevented my getting any trustworthy 
 information until this morning. 
 
 You will be glad to know that the special corre- 
 spondent of the Advertiser, Allen, is a Yale man (as is 
 the editor) ; that Allen was at the raft and heard all 
 that passed between the Yale and Harvard crews 
 after the race; that he has given a faithful account 
 of it, representing the Yale men as foul-mouthed 
 blackguards, and highly commending the self-com- 
 mand and dignity of Harvard. He says the forbear- 
 ance of the Harvard crew was all that prevented a 
 
482 RICHARD HENRY DANA, JR. 
 
 general row. He says the language used by Yale is 
 not fit for print. The other Boston papers are sub- 
 stantially to the same effect, and your crew have the 
 sympathy and applause of all people. The few Yale 
 men here are ashamed and silent. 
 
 I. As to the race, it is plain that you were fouled 
 by Yale, — indeed such is the decision of the umpire. 
 I see no room for doubt that the fouls were intentional. 
 That is the general opinion here. 
 
 II. These fouls delayed and embarrassed you so 
 long as to give you no fair chance against Columbia 
 and Wesleyan. Whether you would have beaten 
 Columbia or not but for the foul, no one can know, 
 but it seems probable. 
 
 I have a fear that this crowding and fouling of 
 Harvard was an understood thing between Yale and 
 Wesleyan; or, perhaps, not pre-arranged, but readily 
 fallen into.^ 
 
 Harvard stood very high for honor, magnanimity, 
 and courtesy, as well as being (probably) the best 
 boat on the lake, and Yale is disgraced. 
 
 Still, all this is very hard to bear. If, as Scripture 
 says, "It is well for a man that he bear the yoke in 
 his youth,'' you have had your share of misfortune. 
 Twice, in succession, you have been deprived of the 
 fair results of years of patient thought, hard labor, 
 self-denial, and self-restraint, by accident, the mis- 
 
 1 Whether pre-arranged or not, the Yale crew not only fouled, but 
 kept the Harvard crew from rowing until Columbia and Wesleyan, 
 which had been behind, had gained a lead of some six lengths, which 
 lead Harvard was not able to overcome when once she got clear of Yale, 
 though gaining all the rest of the way. This delay was the more pro- 
 voking as up to the time of the foul Harvard was rowing well within 
 her powers, at thirty-four strokes per minute. She had not spurted, 
 while both Yale and Columbia had. 
 
LETTERS FROM A FATHER TO A SON 483 
 
 take and ignorance and fraud of others. It is a great 
 discipline, and a great trial. But, my dear boy, you will 
 [find] that the prizes of life go much in the same way. 
 Accident, fraud, mistake, ignorance, and violence are 
 pow^erful and constant agents, and Springfield and 
 Saratoga results will represent a large portion of the 
 public results of life. In all I said to you before you 
 went, I wished to prepare you for the disappointments 
 and dissatisfactions that I knew awaited you. 
 
 It is well that youth is hopeful and trustful and 
 buoyant; but I have seen too much of life to expect 
 fair results from the action of great numbers, under 
 great excitement, where no great principle is clearly, 
 undeniably, and evidently at stake, . . . and there 
 is [no] time for sober second thought. I trust this 
 will end the intercollegiate regatta. 
 
 You, my dear boy, have done nobly, and all your 
 friends feel so. 
 
 Tell me if the umpire was the man Yale nominated, 
 and you objected to, as one-third professional, etc. 
 If so, how was he got in? His decision is illogical, 
 but I suppose it means, "I must condemn Yale, but 
 will give Harvard as little as I can." 
 
 Write me what you mean to do, and when you go 
 and where! 
 
 Affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, Aug. 25, 1874. 
 My dear Boy, — 
 
 Don't publish a word, or take any notice of news- 
 paper accounts, whether Blaikie's, or any one else. 
 You have a vulgar, forgetful, scatter-brained public 
 
484 RICHARD HENRY DANA, JR. 
 
 to deal with.^ Then, if you deny or explain a single 
 thing in the papers, it will be treated as an admission 
 of the truth of everything else that has appeared, and 
 your enemies will sneer at it, and perhaps not print 
 it, but allude to it. 
 
 You have my entire approbation and true sym- 
 pathy. . . . 
 
 R. H. D., Jr. 
 
 Boston, July 27, 1874. 
 Dear R., — 
 
 I think the public now understands clearly that 
 Wood decided that Yale was in fault for the [foul], 
 and Harvard exonerated, as he (1) refused Yale's 
 claim, (2) decided that she caused it by crossing into 
 your water, (3) gave you your place in the race, 
 which you would have forfeited if you had fouled 
 Yale. He has not a trained mind, and is no writer, 
 so he expressed himself bunglingly as to the disallow- 
 ing of your claim as to the effect on the race. 
 
 His decision was in two parts, — first, to settle the 
 fact; second, to determine the consequences of that 
 fact. The fact he decided clearly enough, — that 
 Yale was, and you were not, in fault. The first con- 
 sequences he decided clearly enough, viz.: that you 
 had your place, and as Yale had no place to lose, she 
 did not need to be formally deposed. As to whether 
 the case came under the Rule XIV, and the construc- 
 tion of the Rule, he was not logical and perhaps un- 
 
 1 Compare the words of Washington, who believed that the people 
 "mean well," "but it is on great occasions only, and after time has been 
 given for care and deliberate reflection, that the real voice of the people 
 can be known." 
 
LETTERS FROM A FATHER TO A SON 485 
 
 sound; but that is for Harvard only to find fault with. 
 If he ought to have given you a new chance, or, if 
 he did not, should have refused under Rule XII, it 
 does not affect his decision that Yale only was in 
 fault. The public will see this as soon as a public ever 
 does anything, — in time. ^ . . . 
 
 Affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, Aug. 5, 1875. 
 My dear Boy, — 
 
 You have means enough [letters of introduction] 
 for seeing the upper crust of England, — its educated, 
 wealthy, and governing classes. But I wish you to 
 study England thoroughly, in its lower and middle 
 strata as well as the upper. If you see only those to 
 whom you have letters, you will make it but a pleas- 
 ure trip. It will be like taking a mince pie as a speci- 
 men of the products of a country. I wish you to make 
 acquaintance of some dissenters, some republicans, 
 some of the manufacturing and working classes, and 
 see how they feel and think and talk. It is right to 
 see castles, cathedrals, colleges, and ruins, and know 
 how nobles and gentles think and act, but you must 
 
 ^ As to the umpire, he was a professional who, we were told, kept a 
 gymnasium in New York City, which some of the Columbia students 
 frequented. We had objected to his appointment, but were outvoted. 
 
 As to his decision, he held Yale responsible for the foul. That, by 
 Rule XII, should clearly have entitled us to have the race rowed over 
 again, omitting Yale, but he refused Harvard's claim for a new race, 
 because of Rule XIV, which states that "every boat shall stand by its 
 own accidents occurring during the race." The referee argued that the 
 foul was not Harvard's fault and was therefore its "accident." Of 
 course, the words "own accident" in that rule, meant an accident 
 wholly one's own, such as breaking an oar. 
 
486 RICHARD HENRY DANA, JR. 
 
 not leave the other undone. I wish you to see two 
 things I have never seen, the mines and the manu- 
 facturing towns. You must, now or next year, get 
 admission to a coal and a copper mine, and see how 
 the miners live and work, and visit one or two great 
 hives of manufacturing towns, as Manchester, New- 
 castle, Wolverhampton. You should also see some- 
 thing of the way in which farm laborers live, on the 
 worst as well as on the best estates. 
 
 You will, of course, attend all the debates in Lords 
 and Commons that you can, and hear some jury 
 trials. There will be trials at Guildhall, or wherever 
 the City Assizes are held, and in the country. Also, 
 give a day or two to the county courts, held by one 
 judge, and see how the parties there enter, and are 
 summoned, then their cases tried without counsel. 
 The tenure of lands, the rights of tenants and farmer, 
 and the condition of farm laborers are one great 
 question in England, and the education of the poorer 
 classes is another. 
 
 The Abbey, St. Paul's, Temple, Tower, Mansion 
 House, Bank, Exchange, Whitehall, Parliament 
 Houses, Westminster Hall, National Gallery, (Tra- 
 falgar Sq.), British Museum, South Kensington 
 Museum and its appendages (two days, at least), 
 Crystal Palace, Zoological Gardens, St. Barnabas, 
 All Saints, Margaret Street, St. Clement Danes, 
 (Dr. Johnson's), and some other of Wren's churches 
 are things I now think of, without looking at any 
 book. See also Lincoln's Inn, Doctors' Commons, 
 and the Heralds' College. 
 
 Good-bye, my dear son. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
LETTERS FROM A FATHER TO A SON 487 
 
 Boston, July 12, 1875. 
 My dear Son, — 
 
 I intend to send you the Nations. They will keep 
 you well up in American affairs. 
 
 Again, my dear boy, I advise you to keep a diary, 
 on sheets of paper, sending them home by each mail, 
 putting in it nothing you are not willing all should 
 read. We will see the sheets numbered and kept. 
 They will be a comfort in after years, as well as a 
 convenience. This will also save you a great deal of 
 trouble in writing home. The diary will go round and 
 satisfy all. Then you can write a short note to any 
 of us for particulars. Don't try to express feelings, 
 or describe fully, for it will become a hore, you will 
 get behindhand. Send something off once a week. 
 When you get into company, — as dinner, breakfast, 
 etc., — give names of all present. 
 
 I do hope you are now done with boating. Of 
 course, you will wish to see something of the British 
 systems, in order to benefit the Harvard general 
 system of boating, but I hope you will dismiss it from 
 your thoughts, and give yourself to the study of the 
 political and social conditions of the countries you 
 visit, and the conversation of the most intelligent 
 men and women, and to the great works of art, in 
 architecture, painting, and sculpture, and the his- 
 toric monuments. You have a noble opportunity. 
 Make the most of it! Do not begrudge expense, when 
 it enables you to see things or persons worth seeing 
 and knowing, and make a set-off in lodgings, table, 
 wines, and purchases of matters of taste. That is 
 the way Sumner did. He saw everybody and every- 
 thing worth seeing and knowing, and lived humbly 
 
488 RICHARD HENRY DANA, JR. 
 
 and avoided the company of aimless, money-spending 
 youth. . . . You must do all you can to fit yourself 
 for the career of a jurist and statesman, so that it 
 shall not be your fault if you are unemployed. . . . 
 
 Don't let anything drive you from your plan of 
 spending weeks in Paris, in learning to speak and 
 write French with all the ease possible. Take a tutor, 
 who will talk with you and read aloud to you and 
 make you read and write. Get a good tutor. It will 
 be the best investment you ever made. . . . 
 
 When you see any persons to whom I introduce 
 you, take care to say all you can as to my feelings 
 about them, etc. God bless you my dear son. 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 ' Manchester, July 18, 1875. 
 My dear Son, — 
 
 . . . You must not mind an anxious father suggest- 
 ing little things for your correction, — I mean, you 
 must mind, but not be annoyed. [Then follows a series 
 of suggestions on matters of manners, carriage, etc.] 
 I have only a natural desire to see you perfect. I have 
 confidence that you will do right and best possible 
 in the weightier matters, of mind, religious, scientific, 
 political, legal, and social study. 
 
 Affectionate father, 
 
 R. H. D., Jr. 
 
 Intervale House, North Conway, 
 Aug. 26, 1875. 
 Mr. R. H. Dana, 3d. 
 
 My dear Son, — 
 
 We are so affected by your having struggled to 
 write your journal up to time that we regret all the 
 
LETTERS FROM A FATHER TO A SON 489 
 
 censures we put upon you for your delays. We have 
 received the sheets up to and including Aug. 9th at 
 Birmingham, and your letter from that place. 
 
 I have letters from Harcourt^ and Phillimore,^ 
 both of whom speak of you in the kindest terms. I 
 can truly congratulate you on your social success. 
 It has been of the highest order. As fashion, I care 
 nothing about it. But as part of a liberal education, 
 it is a great privilege to have seen and conversed with 
 the leading men and women of an empire, on familiar 
 terms, at the beginning of life. While it is true that 
 your introductions opened the doors to you, you 
 would not have been invited so often, and had so 
 much done for you, if you had not made a favorable 
 impression by your intelligence and manners. 
 
 I send or shall send letters to Bancroft Davis, our 
 Minister at Berlin, and to Mr. Marsh, our Minister 
 at Rome. D. is son of George D. of Massachusetts, 
 and nephew of George Bancroft. Marsh you know 
 about. If I write to Chabrol, he was a guest of mine, 
 breakfasted with us to meet Agassiz et al., and a 
 young gentleman of the highest character and finest 
 manners. I think he is a Legitimist. He is a member 
 of the Assembly. 
 
 Kapnist I saw a good deal of years ago, in Boston. 
 He was often at my house, — a very clever man, 
 in the employ then of the Russian Government. 
 His subject was political administration, including 
 judicial. I believe his failing is that while he learns 
 everything he does nothing. 
 
 1 Sir William Vernon Harcourt. 
 
 2 Sir Robert Phillimore, Bart., writer on international law, admiralty 
 judge, etc. 
 
490 RICHARD HENRY DANA, JR. 
 
 Calvo ^ has published an International Law. Blunt- 
 schli is a leading author on International Law. . . . 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Manchester-by-the-Sea, 
 Od. 1, 1875. 
 My dear Boy, — 
 
 Your letter to your mother, in which you express, 
 so pathetically, the pain my first letter gave you, and 
 showed how you took to heart the censure I put upon 
 you for not writing us oftener, really gave me com- 
 punctions. Your mother and sisters say that when 
 I think any one in fault, I use, in writing, more severe 
 terms than I am aware of. I dare say this is true. 
 But in extenuation it is to be said that, after your 
 first letter, from Fenton's, we had heard nothing 
 from you for two weeks. Then I knew that you did 
 not like writing letters, and was aware that youth 
 rarely credit how much their parents depend upon 
 them for their comfort and satisfaction. But you 
 have been so very considerate and faithful ever since, 
 in your letters and postals, and have sent your jour- 
 nals so punctually, and so fully written, that I feel 
 like reproaching myself for having given you any 
 pain or discomfort. As I have before told you, your 
 journals hit a good mean between bareness and such 
 fullness as may make them a toil to you. Your In- 
 veraray journal was excellent, and has been read by 
 all your family with great satisfaction and delight. 
 Especially to those who have not been abroad, it 
 reads like a novel. . . . 
 
 I have written to Sir W. V. Harcourt, Sir R. Philli- 
 
 ^ Carlos Calvo, writer on history and international law; born 1824. 
 
LETTERS FROM A FATHER TO A SOX 491 
 
 more, and especially to Lord Spencer, thanking them 
 for their attention to you. Perhaps I may do the 
 same to the Argylls. 
 
 Some one asked one of your classmates, or your 
 schoolmates, Thomas, if these things might not turn 
 your head, to which he replied, "Oh, no! Dick is n't 
 that sort of a fellow, at all." I was greatly pleased 
 to hear that, and, my dear son, I believe it to be true. 
 
 - 1 am truly glad you liked the Kinnairds so much, 
 and that Lord Coleridge and Lord Tenterden were 
 so attentive and instructive, and I am particularly 
 pleased by your visit to Sir John Taylor Coleridge at 
 Ottery St. Mary's. He has always been one of my 
 best friends, and is as good an example as you can 
 find of the Christian gentleman. . . . 
 
 I am now greatly interested to see how you are 
 affected by France. Let me repeat my hope that you 
 will give full time to the speaking and writing of 
 French, and not leave Paris until you are able to talk 
 French with ease, and to understand Frenchmen when 
 talking to one another, however long it may take you, 
 and whatever it may cost. . . . 
 
 361 Beacon St., Oct. 11, 1875. 
 My dear Boy, — 
 
 I meant to have you live in a French family, where 
 only French is spoken, and have a French tutor. And 
 pray eschew English and Americans. In Italy and 
 Germany they will do you no harm, for you will not 
 try to speak Italian or German; yet, even in those 
 countries, I trust you will associate as much as pos- 
 sible with the people of the country. There is a 
 
492 RICHARD HENRY DANA, JR. 
 
 pleasure in meeting American friends, and especially 
 college friends and Boston people, but I look to you 
 to show the strength of purpose to be very sparing of 
 intercourse with the best of them. You are on a 
 course of study and work, and must stick to it. . . . 
 
 Make the utmost of your French introductions, 
 read the French journals, and get your ear used to it; 
 but the tutor is the one indispensable thing. . . . 
 
 If I enclose a letter to M. Duvergier de Hauranne, 
 know that he is of rank and old descent, and was a 
 good deal at our house in Cambridge, and wrote a 
 book on America, which he sent to me. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Boston, Oct. 22, 1875. 
 My dear Boy, — 
 
 Your journals are greatly prized by us. You work 
 easier, as a new ship does after a little sailing, and I 
 hope it is less trial to you to write. If you knew how 
 eagerly they are looked for and read by us, and then 
 by Rutland and Wethersfield and Sally, it would 
 encourage you in writing them. I am glad you have 
 met Mohl ^ and Marmier. I do hope you will see the 
 Calvos, pere et fils, and especially Chabrol. I wish I 
 had felt authorized to give you a letter to Labou- 
 laye. ... 
 
 You must excuse my apparent censures, for it is 
 all done from my intense interest in you, and devo- 
 tion to your welfare. 
 
 Your devoted father, 
 
 R. H. D., Jr. 
 
 1 M. Mohl, a member of the Academy. Mme. Mohl kept up the 
 last of the "Salons" at Rue de Bee. 
 
LETTERS FROM A FATHER TO A SON 493 
 
 Boston, Nov. 1, 1875. 
 My dear Son, — 
 
 Your letters and journals are so punctual and faith- 
 ful that we hardly know how to express to you the 
 pleasure and comfort they give us. This is delightful 
 to us and useful to you, for it is to you a good lesson 
 in writing, and your style is working loose, and becom- 
 ing so easy that we feel sure that the writing of the 
 journals is not distressing to you. 
 
 Your last two journals put you just where I wished 
 you to be, and satisfy me fully, — in a good, well- 
 educated French family, with a daily tutor besides, 
 and, as you say, your lessons in painting are lessons 
 in French. 
 
 I greatly regret that you have not seen Laugel.^ 
 No man in Paris could be more useful to you. He is 
 a writer, private secretary to the Due d'Aumale, and 
 his wife one of the cleverest of women. And I wish 
 you could have seen le Viscomte de Chabrol. When 
 in America, he was the best possible specimen of a 
 young noble. It was he who, at our house, insisted 
 in giving the pas to Agassiz, and when A. said, "I 
 recognize your rank," replied, "What have I to offer 
 to merit but my rank?" 
 
 Hear some French preachers. (Chabrol is a member 
 of the Assembly.) 
 
 Was it not amusing to hear Frenchmen express the 
 opinion that Bismarck is overrated.'^ 
 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
 ^ I saw M. and Mme. Laugel later. 
 
494 RICHARD HENRY DANA, JR. 
 
 Boston, Nov. 9, 1875. 
 My dear Boy, — 
 
 I am glad you are to stay in Paris through Novem- 
 ber. Indeed, I do not care how far into November 
 you stay, for you will gain faster in your French 
 every day after the first four or six weeks. And you 
 do not know how invaluable it will be to you in the 
 Levant, Egypt, Constantinople, Greece, and the 
 Adriatic. Besides, I look to the future. If you get 
 familiar with French, you will keep it up, and be 
 able to use it later in life, when knowledge of it may 
 be of great service to you. 
 
 In my last, I sent you a letter to Mr. Marsh, and 
 will send one to General Stone in Egypt. I will get 
 your mother and sisters to write you about Avignon, 
 Nismes, and Aries, which must be seen, at least two 
 of them. Then, if you go by way of Lyons, try to see 
 the French manufacturing systems at work, and go 
 up the hill of Fourvieres, which Everett says has no 
 superior in Europe for view. 
 
 The late elections bring the Republicans back, so 
 that the Presidential election is a neck and neck 
 matter, and both parties are on their good behavior, 
 — which is the best state of things possible. 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
 Boston, December 15, 1875. 
 
 My dear Son, — 
 
 Your French journals have interested me extremely, 
 for I do feel sympathy with the French and hope for 
 
LETTERS FROM A FATHER TO A SON 495 
 
 their future, and much that you tell us of them is new, 
 while, in England, most was familiar. I knew you 
 would like and value Laugel. M. Marmier ^ has been 
 very, very kind and attentive. A virtuous, kind 
 Frenchman is a very attractive person. 
 
 Make the most of Mr. Marsh, and he will get you 
 into the Italian Parliament, and introduce you to 
 political leaders, who usually speak French if not 
 English. Everything historical, in art and architec- 
 ture and monuments, will interest you deeply in 
 Rome, and so will all art, but, at the same time, try 
 to learn what you can of present Italy, social, political, 
 and religious. Minghetti's speech shows that they 
 have got hold of the "Alt Catholic" idea that the 
 contest is with the Curia and not with the Church 
 Catholic. 
 
 We have just had a great municipal triumph. 
 Cobb has made an excellent mayor, and received an 
 address from some twenty-five hundred of our best 
 citizens asking him to serve again. The lower element 
 combined against him, in the interest of ring rule, 
 and raised a good many popular war-cries against 
 him. They succeeded in carrying both political 
 conventions. Their candidate was a young lawyer, 
 named Halsey I. Boardman, a Republican, of no 
 professional standing, but of considerable munici- 
 pal experience in the Common Council, etc., a light- 
 weight, of no character, and ready for ring rule. The 
 Republican Convention nominated him by one ma- 
 jority, and the Democratic by a very large ma- 
 jority, on an arrangement dividing all offices, as 
 
 1 A member of the Academy and a friend of I^ongfellow. 
 
496 RICHARD HENRY DANA, JR. 
 
 aldermen, etc., between the parties. It was the most 
 ominous thing that has happened in our municipal 
 affairs. All bad men seemed in it, and a good many 
 respectable Democrats and Republicans were influ- 
 enced by the obligation of regular nominations. The 
 "Citizens" held a meeting of about two hundred 
 selected men, and made out a general ticket of Re- 
 publicans and Democrats with Cobb at the head, and 
 organized war in each ward, and the young men took 
 hold with vigor and tact. It was a fair trial of strength 
 between good government, order, respectability, and 
 property on the one side, and the lowest elements, 
 aided by politicians and wire-pullers and mere parti- 
 sans, on the other. 
 
 The election was yesterday. We threw the largest 
 vote ever thrown in a city election, and Cobb is re- 
 elected by a majority of nearly three thousand, and 
 the Citizens' ticket for aldermen, school board, etc., 
 by nearly the same. 
 
 This is a striking result, and most encouraging, 
 when we consider that Boardman had the regular 
 nomination of both parties. It is also encouraging 
 that every newspaper in Boston supported Cobb 
 except the Globe, which is erratic and Butlerized. 
 Our new ward. No. 11, gave Cobb the largest major- 
 ity, nearly eleven hundred. It embraces all between 
 Arlington Street, Columbus Avenue, and the Charles 
 River. Roger Wolcott was an inspector, and I saw 
 several of your friends acting as vote-distributors. 
 The merchants say the result is worth millions to 
 Boston. It proves that Boston can be relied upon. 
 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
LETTERS FROM A FATHER TO A SON 497 
 
 Boston, Jan. 30, 1876. 
 My dear Boy, — 
 
 Your letter and journal were dated at Palermo, and, 
 as you were thence to go to Athens, we must expect a 
 long interval before hearing again. 
 
 I have taken great satisfaction in your journals in 
 the south of France, Italy, and Sicily, for I feel that 
 all you see there must be so much more novel and 
 strange to you than Great Britain and even France, 
 especially as I have never been in the south of France, 
 or over the Cornice Road, or in Genoa or Leghorn, 
 Naples or Sicily. 
 
 I was glad to have you recognize so fully the advan- 
 tage your French was to you. You know how stoutly 
 and persistently I fought for my plan of having you 
 devote some weeks to talking French, against a good 
 deal of discouragement. Many, even Lowell [James 
 R.], seemed to think a few weeks would not do much 
 for you. I knoiv that six or eight weeks' devotion to 
 French, in a good French family, to a person as far 
 advanced as you were, made just the difference be- 
 tween your speaking French, or not trying to speak 
 it, all over Europe. It is the first strokes in swim- 
 ming. If a man can really swim six strokes, he will 
 venture into deep water, and swim better and better, 
 while if he cannot really swim consecutive strokes, he 
 will keep in shoal water. I hope you will keep up 
 your French all the time you are on the Continent, 
 by talking, reading, and writing. 
 
 Your journals improve in ease and fulness. The 
 writing them is a good rhetorical exercise for you, the 
 best, and "La sempre fedelissima" will always see 
 to your spelling, which candor compels me to say 
 needs a good deal of seeing to. 
 
498 RICHARD HENRY DANA, JR. 
 
 You are observant of nature, science, and art, — 
 of things that stimulate inquiry and reasoning, but 
 you are not observant of things otherwise. You must 
 try to cultivate more attention to sounds and words 
 and names. You must try to remember the names of 
 persons and places, and notice how they ate pro- 
 nounced. The right pronunciation and application 
 of proper names is one of the marks of an educated 
 man. . . . 
 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
 361 Beacon St., Boston, 
 
 Friday, Feb. 20, 1876. 
 
 My dear Son, — • 
 
 ... I commend your spirit in taking second-class 
 passage, but I would not do it in steamers. There, the 
 distinction is great, marked, and shuts you off from 
 all intercourse with the other passengers. On railways 
 there is no objection to it. . . . 
 
 Your Athens journal is intensely interesting. It 
 is a vision of — not romance, but long ago reality 
 of the noblest kind. And are you not glad you read 
 so much Greek in college? 
 
 I am glad you went to Egypt. It is too curious to 
 be lost, and is losing its old-world characteristics 
 fast. . . . 
 
 Don't give up an important matter of instruction 
 or feeling for a small saving. Save rather, as you have 
 done, in walking, boarding cheap, in plain dress, and 
 in buying nothing merely ornamental, and nothing 
 in the way of art, however beautiful. . . . 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
LETTERS FROM A FATHER TO A SON 499 
 
 Boston, March 28, 1876. 
 My dear Son, — 
 
 I suppose the vote this evening will be against me.^ 
 I have no hope of confirmation. The combination of 
 Cameron and Morton, the two leaders of the Com- 
 mittee, in the Senate, and of Butler and Beach Law- 
 rence outside the Senate, and the readiness of the 
 Democrats to vote so as most to trouble the Admin- 
 istration will be too much for the gentlemen "out- 
 side politics." . . . 
 
 I should have liked the rest, leisure, and dignity 
 of the post, and the chance it would have given me 
 to study international law, and the change of life 
 for me and your mother. "But a Disposer whose 
 power we are little able to resist, and whose wisdom 
 it behooves us not at all to dispute, has ordained in 
 another manner, and whatever our querulous weak- 
 ness may suggest, a far better." 
 
 The conduct of the Committee Mr. Fish calls, in 
 a letter to me, "scandalous," and in a letter to Judge 
 Hoar by a harder name. The press and the people 
 have confirmed the nomination, whatever the Senate 
 may do. Mr. Fish says that no nomination, for years, 
 has been received by the people so well. It has been 
 defeated by the vile Cameron, whom Lincoln dis- 
 missed from the War Department for fraud, the in- 
 famous Butler, the unscrupulous, vindictive Beach 
 Lawrence, acting through secret committees and 
 secret sessions. 
 
 Don't let this make you any the less patriotic. It 
 only shows you how much more the country needs 
 
 ' In the United States Senate, on confirmation of his appointment 
 as Minister to England. See Biography, vol. ii, pp. 362-377. 
 
500 RICHARD HENRY DANA, JR. 
 
 the services of good men, — how much the rising 
 generation has to do for their state. 
 Good-bye, my dear boy. 
 
 Your affectionate father, 
 
 R. H. Dana, Jr. 
 
 Did you [see] the spontaneous request of nearly 
 all the members of both branches of the Legislature, 
 Speaker, President of Senate, all judges and ex-judges, 
 mayors and ex-mayors, and citizens of all parties, for 
 my confirmation? It was wonderful ! 
 
 Boston, April 30, 1876. 
 My dear Son, — 
 
 Last week we had a State Republican Conven- 
 tion, as you see by the Daily Advertiser I sent you. 
 The result was perfect. The Butler, Custom-House, 
 machine men did their utmost to defeat me.^ They 
 went so far as to put Judge Hoar, their constant 
 enemy, on their ticket. The only effect was to give 
 Judge Hoar some sixty or eighty votes more than I 
 had, while I had some two hundred more than was 
 necessary for a choice, and far ahead of all others. 
 It was a decided rebuke to the Senate, for Hoar and 
 I had each been rejected by the Senate, and an utter 
 defeat of the Butler gang. Think of four such men 
 as Hoar and I, President Chadbourn (Williams Col- 
 lege), and John M. Forbes, sent with full powers and 
 authority to fill our own vacancies, and no instruc- 
 tions ! 
 
 1 As delegate at large from Massachusetts to the Republican Presi- 
 dential Convention of 1876. 
 
LETTERS FROM A FATHER TO A SON 501 
 
 Massachusetts heads the column. Her delegates 
 are "reformers," and known to be pledged to no man, 
 and with no axes to grind, and claiming no Massa- 
 chusetts man for any post. 
 
 Your affectionate father, 
 
 R. H. D., Jr. 
 
BIBLIOGRAPHY 
 
 [The following are the more important of Mr. Dana's publications, including in a very few 
 instances publications by others, to which Mr. Dana's were a reply, omitting, however, Mr. Dana's 
 briefs and arguments in law cases, unless they were of unusual public interest. In some cases, the 
 original publications do not state that Mr. Dana is the author; but in every instance in which such 
 are included in this hst, we have evidence in the handwriting of Mr. Dana or of his father, or of 
 both, and sometimes other corroborative evidence of the authorship. Copies of many such of the 
 following as are in pamphlet form, and are not printed in the preceding collection, may be found in 
 the Congressional Library, Washington, D. C, the Harvard College Library, the Boston Athenaeum, 
 and in the public libraries of Boston, New York, Chicago, San Francisco and Los Angeles. — 
 R. H. D., 3d.l 
 
 1839 
 
 Cruelty to Seamen: Case of Nichols & Couch. In American Jurist, October, 
 1839, pp. 9£-107; Life and Letters of Judge Story, vol. ii, pp. 312-316 
 (Little, Brown & Co., Boston, 1851, 2 vols.). Also in pamphlet form without 
 author's name. 
 
 1840 
 
 Two Years Before the Mast. (Harper Brothers, New York, 1840). Author's 
 
 Edition, with chapter "Twenty-four Years After," Houghton, Mifflin & Co. 
 
 At least 52 Editions by 31 Publishers in U. S., Gt. Britain, and Europe. See 
 
 Adams's Life of Dana, vol. i, pp. 25-27. 
 Seaman's Friend Society, Remarks before. In Mercantile Journal, Boston, 
 
 May 28; Boston Courier, May 29; Boston Recorder, June 5. 
 
 1841 
 
 Seaman's Friend: Treatise on Practical Seamanship. Boston, Thomas Groom, 
 12mo; Little, Brown & Co., 16mo. Published in England under title. Sea- 
 man's Manual: London, Philip Moxon, 1841 (8vo), 1856, 1859, 1867; and 
 by Lees Philip & Son (8vo), 1856. 
 
 Seaman's Friend Society in New York, Address before, on May 10. In New 
 York Herald, May 11; Boston Recorder, May 28. 
 
 Fugitive Slave Rescue Case: John Torrance, or Massachusetts vs. Higgins. 
 In Boston Daily Mail, June 7. 
 
 1842 
 
 Charles Dickens Dinner, Remarks at. In Boston Advertiser, February 3; 
 New England Weekly Review, Hartford, Conn., February 12. 
 
 1843 
 
 SoMERs Mutiny, First Letter on, dated January 10. In New York Evening 
 
 Post, January 12 or 13; Boston Atlas, January 17; Halifax Nova Scotian, 
 
 April 10; Adams's Life of Dana, vol. i, pp. 47-58. 
 SoMERS Mutiny, Second Letter on. In Boston Courier, August 18. 
 SoMERS Mutiny, Third Letter on. In Boston Semi-Weekly Courier, August 
 
 21. 
 Washington Allston, Note Denying Truth of Anecdotes about. In Boston 
 
 Atlas, July 22. 
 
504 BIBLIOGRAPHY 
 
 1844 
 
 Gothic Architecture. In Boston Daily Advertiser & Patriot. 
 
 Visit to Mount Vernon. In Boston Daily Advertiser & Patriot, April 9. 
 
 Justice to the Poor, the Stranger and the Suspected. In Boston Daily 
 Advertiser & Patriot, July 22. 
 
 Allston's Belshazzar's Feast. In Boston Daily Advertiser & Patriot, Sep- 
 tember 27. 
 
 Episcopal General Convention at Philadelphia, Summary of. In Boston 
 Semi- Weekly Advertiser, November 2. 
 
 Architecture. In Boston Courier, November 5. 
 
 1845 
 
 Bishop Onderdonk's Trial. In Boston Evening Transcript, April 5. 
 
 Seamen in the Church: First Letter. In Christian Witness & Church Advo- 
 cate, May, p. 47. 
 
 Seamen in the Church: Second Letter. In Christian Witness & Church 
 Advocate, May, p. 55. 
 
 American Loyalty: Lecture at Music Fund Hall, Philadelphia. In U. S. 
 Gazette, December 10. Pennsylvania Inquirer & National Gazette, Decem- 
 ber 10 (This is the notice alluded to in the Biography, vol. i, p. 115). 
 
 Advent Parish and Bishop Eastburn. In Boston Evening Transcript, De- 
 cember 20. 
 
 Church of the Advent and Mr. Pollard. In Boston Evening Traveller, 
 December 22. 
 
 Bishop Eastburn and his Clergy. In Boston Evening Transcript, December 
 23; Christian Watchman, January 2, 1846. 
 
 ' 1846 
 
 Church of the Advent, Position of. In The Churchman, January 24. 
 Church of the Advent. In Boston Evening Transcript, December 11. 
 
 1847 
 
 Vinton, Major John R., Memoir of. In North American Review (American 
 
 Review & Whig Journal), No. 30, June, pp. 594-602. 
 Petition to Congress for More Speedy Trial of Seamen : Leaflet prepared 
 
 by R. H. Dana, Jr. 
 
 1848 
 
 Discoverer of Ether. In Littell's Living Age, No. 201, March 18, pp. 529-571. 
 Discoverer of Ether, Report of Massachusetts General Hospital on: Edited 
 
 by R. H. Dana, Jr., with Introduction. 8vo. 
 Same translated into French. "Rapport . . . sur le Decouvert d'Ether." 
 
 8vo. 
 Ether Controversy: Various Data. 12mo. 
 Free Soil Meeting in Boston, July 7: Remarks on Taking the Chair. In 
 
 Boston Daily Whig, July 8; Boston Daily Whig, July 11. 
 Buffalo Free Soil Convention, Speech on. In Boston Daily Republican, 
 
 October 12. (Printed in this collection.) 
 Free Soil Meeting at Faneuil Hall: Speech as Presiding OfiBcer. In Boston 
 
 Daily Republican, November 6. 
 
 1849 
 
 Free Soil Rally, Tremont Temple: Resolutions. In Boston Daily Repub- 
 lican, November 12. 
 Niphon's Crew: Argument for the Seamen. 8vo, 12 pp. 
 
BIBLIOGRAPHY 505 
 
 1850 
 
 First Impressions of a bAiLOR. In Boston Book, 1850, Ticknor & Fields, 16mo, 
 pp. 279-285. 
 
 Washington Allston: Lectures on Art and Poems. Edited with Introduction. 
 12mo, Baker & Scribner, N. Y., 1850. 
 
 Free Soil Meeting of February 27, Call for. Leaflet and in papers. 
 
 Free Soil Convention at Faneuil Hall to sustain the Wilmot Proviso, 
 February 27. Address to Members of Congress. Quarto sheet, 2}^^ pp. In 
 Boston Semi- Weekly Republican, March 2, p. 1. (Printed in this collection.) 
 
 Speech at the Same. In Boston Semi-Weekly Republican, March 3, p. 2. 
 
 Worcester, Speech at, April 5. In Boston Advertiser, April 14. 
 
 Proscription of R. H. Dana, Jr., Articles calling for. In Boston Adver- 
 tiser, May 10; Advertiser & Courier, June 2; Transcript, May 7, 13, 14, 15, 
 16 and 19; Commonwealth, May 13, 16 and 30; Daily Advertiser, June 2. 
 
 Free Soil Platform Abandoned by the Whigs: Letter on. In Boston Daily 
 Evening Traveller, August 17. 
 
 Fugitive Slave Law, Faneuil Hall Meeting on: Preamble and Resolutions. 
 In Boston Atlas, October 15, p. 2. 
 
 Free Soil Meeting at Faneuil Hall, November 6: Resolutions. In Boston 
 Daily Chronotype, November 7. 
 
 Great Gravitation Meeting: Parody on the Whigs and the Fugitive Slave 
 Law. In New York Tribune, November 22; Boston Chronotype, November 26. 
 (Printed in this collection.) 
 
 Church of the Advent: Prescott Defended on Heresy Charges. In Boston 
 Daily Advertiser, November 30; Boston Christian Register, December 14. 
 
 1851 
 
 Fugitive Slave Rescue Trials: Defense of Charles G. Davis, Esq. Wright & 
 Potter, Boston, 1851, 8vo, pp. 23-37. Closing Argument, Commonwealth 
 and Emancipator, February 28 and March 1 . In Boston Daily Atlas, February 
 22; Daily Evening Traveller, February 21; Boston Daily Commonwealth, 
 February 27 and 28. (Printed in this collection.) 
 Essex Railroad Case: Argument before the Committee of the Legislature. 
 
 In Boston Daily Commonwealth, March 29. 
 Personal Liberty Bill: Drawn by Charles Sumner and R. H. Dana, Jr. In 
 
 Boston Daily Commonwealth, March 31. 
 Worcester, Address on "The Times." In Worcester Spy, April 7; Boston 
 
 Daily Commonwealth, May 2; Boston Evening Transcript, May 16. 
 Fugitive Slave Case: Thomas Simes. In Boston Daily Evening Traveller, 
 
 April 11; Semi- Weekly Advertiser, April 16; Boston Daily Bee, April 14. 
 Mystic River Improvement: Argument before Committee of Massachusetts 
 
 Legislature, April 17. Pamphlet. 
 George S. Hillard, under title "X": Attack on R. H. Dana, Jr., for Wor- 
 cester Speech. In Boston Advertiser, May 8, 10 and 12; Boston Daily Com- 
 monwealth, May 16. 
 
 "Sigma." In Boston Evening Transcript, May 7, 13 and 15; see also do.. 
 
 May 14. 
 Haven's Letter. In Boston Evening Transcript, May 19. 
 Editorial on Attack. In Daily Courier, June 2; Boston Daily Advertiser, 
 
 June 2; Boston Daily Commonwealth, June 16 and 30. 
 Editorial Note on Same, and Extracts. In New York Evening Post, 
 
 June 30. 
 See also Boston Commonwealth, June 5; New York Evening Post, July 1; 
 Boston Daily Morning Commonwealth, July 2; Boston Daily Evening 
 Commonwealth, July 10. 
 Hillard's Answer. In Boston Advertiser, July 11. 
 
506 BIBLIOGRAPHY 
 
 Attack on Dana and Others, Advising not to Employ, etc., by Son of a 
 
 Merchant. In Daily Commonwealth, June 5. See also Daily Commonwealth, 
 
 June 16; Weekly Messenger, July 30. 
 Fugitive Slave Rescue Trials: Rescue of Shadrach: Scott Case. In Daily 
 
 Commonwealth, June 5 and 6. 
 Fugitive Slave Rescue Trials: Hayden's Case, Opening Argument. In Daily 
 
 Morning Commonwealth, June 12. 
 Fugitive Slave Rescue Trials: Shadrach: Lewis Hayden Defense. In Boston 
 
 Evening Commonwealth, June 16; Boston Evening Traveller, June 17. 
 Fugitive Slave Rescue Trials: Robert Morris Case. In Daily Morning Com- 
 monwealth, June 19, November 8 and 10. 
 Story, Reminiscences of Judge Joseph. In Life and Letters of Judge Story, vol. 
 
 ii, pp. 317-322. 
 Story Association, Address at. In Boston Morning Commonwealth, July 
 
 17. See also July 15 and 16. 
 Story Association, Speech at Dinner of. In Boston Advertiser, July 21; 
 
 Boston Weekly Messenger, July 30. 
 Libel Suit vs. the Commonwealth. In Boston Commonwealth, September 
 
 3-8. 
 Charles Adams Whitcomb, Obituary on. In Boston Morning Journal, 
 
 October 23. 
 Elizabeth Earl Cooke, Obituary on. In Boston Traveller. 
 Lewis Gray, Obituary on. 
 
 1852 
 
 Advent, Parish of: Fresco tt Heresy Trial: Argument. Abstract in Boston 
 Evening Traveller, February 12, 13, 14, 19 and 23; New York Churchman, 
 March 20. Full report in New York Churchman, April 3. Extract covering 
 full statement on Dr. Croswell, in Boston Evening Traveller, April 19. 
 
 Literary Societies of Geneva, N. Y., Address before. In Geneva Courier, 
 July 16; Geneva Gazette, July 16; Geneva Gazette, July 21. Extract in 
 Boston Evening Transcript, September 10. 
 
 Washington Allston: Lectures on Art and Poems. 12mo. Edited by R. H. 
 Dana, Jr. 
 
 1853 
 
 Horace Binney Wallace, Obituary on. In Law Reporter, March, N. S., 
 
 vol. v. No. XI, pp. 659-660. Also extracts in Register and other papers. 
 John P. Hale, Speech at Complimentary Dinner to, on the Buffalo Conven- 
 tion Platform. "In 1848, truisms; in 1850, treason." In Boston Common- 
 wealth, May 7. 
 Excess of Freedom: Letter to Free Democracy Meeting, September 27. 
 Hon. John P. Hale, Address to, on Presentation of Medal at Tremont Temple, 
 
 October 13. 
 Massachusetts Constitutional Convention (1853) Debates: — 
 
 Speech on Right of Habeas Corpus. Vol. iii, pp. 378-381, 476-478, 480- 
 
 481. 
 Against Juries as Judges of the Law. Vol. iii, 451-454, 507-509. 
 Town Representation in the Legislature. Vol. i, 941-949; vol. ii, 
 
 134-136, 185, 450-452. 
 Appointment and Tenure of the Judiciary. Vol. ii, 756-770; vol. iii, 
 180-187, 192, 207-208, 228, 234, 235, 626-627, 630-632. (The chief 
 address printed in this collection.) 
 Loan of the State Credit. Vol. ii, 674-677. 
 Militia. Vol. ii, 27, 98-102. 
 
BIBLIOGRAPHY 507 
 
 Old Laws Continued. Vol. i, 356. 
 
 Elections by Plxhiality. Vol. i, 385-393; vol. iii, 143-145, 275-277, 278. 
 
 Qualifications of Voters. Vol. i, 684-688; vol. ii, 511-517. 
 
 Election of Judge of Probate. Vol. i, 705-706, 708-711, 719; vol. ii, 
 
 470-471, 534, 539-540. 
 Sheriffs Subject to the Governor. Vol. ii, 468-471. 
 Constitution of 1853, Speech in Favor of the Adoption of. Cambridge, No- 
 vember 1. 
 Francis Dana (2d), Esq., Reminiscence. In Boston Daily Advertiser, De- 
 cember 29. 
 
 1854 
 
 Fugitive Slave Rescue Trials: Anthony Burns: Argument. "Boston Slave 
 Riot & Trial of Anthony Burns," 8vo, Boston, Fetridge Company. In Boston 
 Daily Commonwealth, May 26; Daily Evening Traveller, May 27, p. 2, May 
 29, June 3; New York Evening Post, June 3; New York Semi-Weekly Even- 
 ing Post, June 6; Boston Daily Atlas, June 22. (Printed in this collection.) 
 
 Reply declining Offer in Letter of Wendell Phillips for Fee for his 
 Services in Defending Anthony Burns. In Boston Commonwealth, June 15. 
 
 The Bible in the Public Schools: Argument. In Boston Traveller, July 22. 
 12mo, Boston, Wright & Potter, 1855. 12mo, Boston Sabbath School So- 
 ciety, Cornhill, Boston, 1855, 59 pp. (Printed in this collection.) 
 
 Professor Greenleaf, Resolutions on Death of, at Meeting of Suffolk Bar. 
 
 1855 
 
 Judge Loring, Remarks against the Removal of, before the Committee on 
 
 Federal Relations of the Massachusetts Legislature, March 5. 8vo, Boston, 
 
 Alfred Mudge & Son. Also in Boston Daily Advertiser, March 7; Boston 
 
 Evening Transcript, March 7. 
 Worcester Republican Convention: Address to the People of Massachusetts, 
 
 and Resolutions. In Worcester Spy, September 21. 
 Speech of R. H. Dana at Above. Abstract in Boston Atlas, September 22. In 
 
 full in Boston Evening Telegraph, September 24. 
 Report to Citizens op Cambridge on the Worcester Convention. In 
 
 Boston Atlas, October 25. 
 Mandamus in Ecclesiastical Cases in America. In Monthly Law Reporter, 
 
 N. S., vol. viii. No. VIII, December, pp. 421-432. 
 
 1856 
 
 Professor Edward Tyrrell Channing, Obituary on. In Boston Daily 
 Advertiser, February 15; Cambridge Chronilce, March 8. 
 
 Edward T. Channing: Biographical Notice to Lectures to Seniors in Harvard 
 College. 12mo, Boston, Ticknor & Fields. 
 
 Charles Sumner, On Outrage to. "Sumner Outrage." 12mo, John Ford, 
 Cambridge, pp. 26-33. Also in Boston Daily Atlas, June 10. 
 
 Benjamin F. Dalton, Defense of. "Complete Trial of Edward O. Colburn 
 and Benjamin F. Dalton for^Manslaughter of William Sumner." 8vo, Boston, 
 Bumham, Federhen & Company. Dana's Closing Argument, pp. 38-54. 
 
 Call for Free Soil Convention. 
 
 Judge Woodbury Davis, On the Removal of. In Monthly Law Reporter, N. S., 
 vol. ix, No. II, June, pp. 61-83. 
 
 1857 
 
 "A Voice from the Main Deck, and Thirty Years' Adventures." By S. Leech. 
 Introduction for the 16th Edition. Boston, Whittemore, etc., 1857, Svo. 
 
508 BIBLIOGRAPHY 
 
 Rev. J. S. Kalloch, Defense of. "Full Report of R. H. Dana's Argument for 
 the Defense of Rev. J. S. Kalloch," by Dr. I. W. Ayer, Reporter for the 
 Boston Traveller. 8vo, Boston, Federhen & Company. In Boston Daily Bee, 
 April 7, 1857. Extra Edition, Boston Daily Bee, April 7, 1857. 
 
 Dalton Divorce Case. "Opening Address and Closing Argument of R. H. 
 Dana, Jr., Esq., in the Dalton Divorce Case." 8vo. Office of Boston Daily 
 Bee. In Boston Daily Bee, May 11, 1857. 
 
 Seamen, Address on Behalf of. In Boston Evening Transcript, June 13. 
 
 Franklin Dexter, Esq., Remarks on the Death of, at Suffolk Bar Meeting. 
 In Boston Daily Advertiser, September 9. 
 
 To^VN OF Belmont, Argument before Massachusetts Legislative Committee 
 against Separation of, from West Cambridge. 12mo, Boston, Damrell & 
 Moore, 10 pp. 
 
 1858 
 
 Judge Loring, Letter on Removal of. In New York Evening Post. 
 Harvard Football. In Boston Daily Advertiser, September 18; New York 
 Evening Post, September. 
 
 1859 
 
 "To Cuba and Back, a Vacation Voyage." 12mo, Boston, Ticknor & Fields, 
 
 288 pp. Smith, Elder & Co., London, 1859. French Edn. 1860. Houghton, 
 
 Mifflin & Co., Boston, 1887. 
 Sandwich Islands, Missions in, etc.; Letter to New York Tribune, re-published 
 
 by the American Board of Commissioners for Foreign Missions. Quarto 
 
 Leaflet. 
 Ballot in the United States: Letter to Lord Radstock. In London Times, 
 
 August 27. 
 RuFUS Choate, Remarks before Suffolk Bar Association on Death of. Works 
 
 of Rufus Choate, by Samuel Gilman Brown, vol. i, p. 252. Also in Daily Alta 
 
 California, San Francisco, September 9; and Boston papers. (Printed in this 
 
 collection.) 
 Ship Mastiff Burned at Sea. In Daily Alta California, San Francisco, 
 
 November 5; Boston Weekly Courier, November 18. 
 
 1860 
 
 Japan, Letter on. In New York Evening Post, August7; Boston Daily Ad- 
 vertiser, August 11. 
 
 Republican Meeting at Cambridge : Speech as Presiding OflBcer. In Boston 
 Daily Advertiser, November 3. 
 
 1861 
 
 Reasonable Conciliation with the Southern States : Speech at Manchester, 
 N. H., just prior to the breaking out of the Civil War; February 19. 8vo, 
 Boston, Redding & Company. Also in Boston Daily Advertiser, February 20. 
 
 Repeated at Cambridge, Mass. In Boston Daily Atlas & Bee, February 12. 
 
 Flag-raising at Camp Cameron: Address. In Boston Daily Advertiser, June 29. 
 
 Mason & Slidell — Trent Affair: Letter on. In Boston Daily Advertiser, 
 November 18. 
 
 President op the United States (Lincoln), Speech on, before Ancients & 
 Honorables. 
 
 1862 
 
 PiCKMAN & Silsbee, Claimants, U. S. vs., 4261 Prize : Argument. Pamphlet, Svo. 
 Washington's Birthday, Address on. Cambridge Chronicle, March 1. 
 
BIBLIOGRAPHY 509 
 
 Fourth of July Address: Faneuil Hall Dinner. In Boston Journal, July 5. 
 
 Massachusetts Republican Convention at Worcester: Report to Citizens 
 of Cambridge. (Convention at which Mr. Dana, by his speech, prevented 
 resolutions disloyal to President Lincoln.) In Boston Journal, September 29. 
 
 1863 
 
 Prize Case; Amy Warwick: Brief before U. S. Supreme Court. Boston, 8vo. 
 Also in Veeder's Legal Masterpieces, Keefe Davidson Company, St. Louis, 
 1903, vol. ii, pp. 907-928; 2 Black, U. S. Supreme Court Reports, pp. 650-665. 
 
 Liberal Contribution from Abroad. In Boston Advertiser, January 7. 
 
 Republican Ratification Meeting, Providence, R. I., Speech at. In Provi- 
 dence Journal, March 31. 
 
 Seamen's Widow and Orphan Association, Address before. In Salem Regis- 
 ter, April 2. 
 
 Republican Ratification Meeting at Cambridge, Speech at. In Boston 
 Daily Advertiser, October 6. 
 
 1864 
 
 Prize Decisions: " Enemy's Territory and Alien Enemies — What the Supreme 
 Court Decided in the Prize Causes." Boston, 8vo, Little, Brown & Company, 
 11 pp. (Printed in this collection.) 
 
 Russian Fleet, Complimentary Banquet to Rear Admiral Lessoffsky and 
 Officers of, on June 7. Boston, 8vo, J. E. Farwell & Company; Remarks of 
 R. H. Dana, Jr.. pp. 33-38. 
 
 JosiAH QuiNCY, Remarks before Historical Society on the Death of. In Boston 
 Evening Transcript, August 30. Also in Proceedings of the Massachusetts 
 Historical Society, vol. vii, pp. 398-405. 
 
 Chief Justice Taney, Remarks on the Death of, on October 17. Bvo, Boston, 
 Wright & Potter Company. 
 
 President Lincoln, Meeting of New York Capitalists in Support of: Speech at. 
 In New York Times, November 5. 
 
 Judge Sprague, A Tribute to, at the Dinner to Officers of the Kearsarge, No- 
 vember 5. Boston, 8vo, Alfred Mudge & Son. Also in Boston Daily Adver- 
 tiser, November 16. 
 
 1865 
 
 Edward Everett, Life and Services of: Address on, February 22. 8vo, 70 pp., 
 Cambridge, Seaver & Francis; also quarto edition. Also Remarks on, in 
 Massachusetts Historical Society Proceedings, vol. viii, pp. 152-154; de- 
 livered at a special meeting, January 20. 
 
 Winthrop Square Meeting, Speech at. April. 
 
 Assassination of President Lincoln, Speech on. In Boston Daily Advertiser, 
 April 18; Boston Journal, April 18. 
 
 Permanent and Honorable Peace, Speech at the Old South Meeting on Basis 
 of. In Boston Transcript, April 2G. 
 
 Western Visitors, Speech at Dinner to. In Boston Daily Advertiser, June 10; 
 Boston Journal, June 10. 
 
 Reconstruction of Southern States: Faneuil Hall Address to the People 
 of the United States, prepared by R. H. Dana, Jr., adopted June 21. Boston, 
 8vo, 6 pp. In Boston Daily Advertiser, July 10; London Times; translated 
 into French and printed in the French papers. (Biography, vol. ii, p. 334.) 
 
 Grasp of War Speech: Meeting in Faneuil Hall on Reconstruction, in Support 
 of the above Address, June 21. 8vo, 4 pp. In Boston Evening Courier, June 
 22; Boston Daily Advertiser, June 22; Boston Journal, June 22; Boston 
 Evening Transcript, June 22; Commonwealth, June 24. Also reprinted in 
 
510 BIBLIOGRAPHY 
 
 various other papers in America, England and France. (Printed in this col- 
 lection.) 
 
 Harvard College, Board of Overseers, Resolutions presented at. In Boston 
 Daily Advertiser, September 22. 
 
 United States Navy, Speech before Officers and Sailors of. 
 
 1860. 
 
 Notes to Wheaton's International Law. 4to, Little & Brown, 1 vol. [New 
 matter, in condensed style, about equal in length to the original work.] 
 
 Lowell Institute; Lectures on International Law: 12 Lectures. Reported in 
 Boston Post, 1866-67. 
 
 Seventeenth of June Celebration at Arlington, Speech at. 
 
 1867 
 
 Usury Laws, Speech on the Repeal of, in the House of Representatives of 
 Massachusetts, February 14. 8vo, Boston, Wright & Potter, 30 pp. 8vo, 
 New York, Cowan, McClune & Company, 23 pp. (Printed in this collection.) 
 
 Equalization of Bounties, Speech against Bill for, in Massachusetts Legis- 
 lature. In Boston Daily Advertiser, May 1. 
 
 Governor John A. Andrew, Speech on the Death of. In Boston Daily Adver- 
 tiser, November 5. 
 
 Liquor Question, About the Attitude of Parties on: Speech at Republican 
 Caucus of Legislators, December 21. 
 
 1868 
 
 Emancipation, Speech on, at Tremont Temple. In Boston Journal, January 2. 
 Intoxicating Liquors, Act to Regulate Sale of: Report of Committee of the 
 
 Judiciary of Massachusetts Legislature. House Document No. 299, May 7, 
 
 8vo, 8 pp. 
 Decoration Day Address at Cambridge. In Cambridge Press, June 6. 
 Legislature of 1868. In Boston Daily Advertiser, June 22. 
 W. T. G. Morton, Discoverer of Ether, Tribute to. In Boston Daily Advertiser, 
 
 August 11. 
 Republican State Convention at Worcester, Speech at, and Resolutions. 
 
 In Boston Daily Advertiser, September 10. 
 Republican Demonstration in Boston, Speech at. In Boston Daily Adver- 
 tiser, September 15. 
 Rally at Gloucester in Campaign against Gen. Butler, Speech at. In 
 
 Gloucester Telegraph, October 17. 
 Acceptance of Nomination to Congress, 5th District, against Gen. Butler 
 
 on a Sound Money Platform, Speech on. In Salem Gazette Supplement, 
 
 October 23. 
 Middleton, Massachusetts: Meeting in Campaign against Gen. Butler for 
 
 Congress, and his Repudiation of the Platform: Speech of October 26. 8vo, 
 
 11 pp., double column. Also in Salem Gazette Supplement, October 30. 
 Golden Rocket: Argument of R. H. Dana, Jr., before the Supreme Court of 
 it Maine. Law P. vol. ii. 
 
 1871 
 
 Unity of Italy. Meeting at Academy of Music, New York. Pamphlet, 8vo, 
 7 pp., January 7. 
 
 Boston, Hartford & Erie Railroad Bondholders, Argument of, before Com- 
 mittee of Massachusetts Legislature on Railroads. April 14. Boston, 8vo, 
 Wright & Potter, 1876. 
 
 How We Met John Brown. Atlantic Monthly, July, pp. 1-9. Also in Life by 
 C. F. Adams, vol. i, pp. 145-164. 
 
BIBLIOGRAPHY 511 
 
 History of Admiralty Jurisdiction in the United States. In American 
 Law Review, vol. v, July, pp. 581-G21. 
 
 1872 
 
 Morse, Samuel F. B., Speech at Faneuil Hall Meeting on Death of. In Boston 
 
 Daily Advertiser, April 17; Boston Daily Evening Transcript, April 17. 
 Colored Citizens of Boston, Letter to, on President Grant. In Boston Daily 
 
 Advertiser, August 20; New York Evening Post, August 21. 
 Fugitive Slave Cases and R. H. Dana, Jr., by Lewis Hayden. In Boston 
 
 Daily Advertiser, September 10. 
 Old South Argument. 8vo, double column, 7 pp. In Boston Daily Advertiser, 
 
 December 2. 
 
 1873 
 
 Report of the Visiting Committee of Overseers of Harvard College, 
 for the year 1872-73. 8vo, 35 pp., John Wilson & Son, Cambridge. 
 
 1874 
 
 Right to the Protection of the Flag: Case of the Virginius: Letter on. In 
 Boston Daily Advertiser, January 6. 
 
 Charles Sumner, Remarks on the Death of, and Resolutions, at Faneuil Hall 
 Meeting. In Boston Daily Advertiser, March 16. 
 
 Judge E. R. Hoar: Address to Republican Members of the Massachusetts 
 Legislature on behalf of the Election of Judge Hoar to the United States Sen- 
 ate. Published by Committee in favor of Judge Hoar's election, March 30. 
 
 Report of Visiting Committee of Overseers of Harvard College, for 
 the Year 1873-74. 8vo, John Wilson & Son, Cambridge. 
 
 Judge Benjamin R. Curtis, Remarks on the Death of. (Died September 15, 
 1874.) 
 
 " Subsoiling," or The Voters as against the Prepared Candidates. In New York 
 Nation, October 22. 
 
 1875 
 
 Mr. Sumner's Successor to the United States Senate. In Boston Daily 
 
 Advertiser, January 13. 
 Rhetorical Training. In New York Nation, March 11. 
 International Law, Proposed Changes in. In New York Nation, March 11. 
 Centennial Oration at Lexington, Massachusetts, April 19. 8vo and quarto, 
 
 Franklin Press, 19 pp. In Boston Daily Advertiser, April 20. 
 Lexington and Concord: Collection of Data. Boston Public Library, No. 
 
 2350-19. 
 Report of Visiting Committee of Overseers of Harvard College, for the 
 
 Year 1874-75. 8vo, 12 pp., John Wilson & Son, Cambridge. 
 Admiralty Liens and Material-men: The Latawana. In American Law 
 
 Review, July, pp. 638-607. Pamphlet, 8vo, 30 pp. 
 Dr. G. B. Loring's Candidacy for Governor. In Boston Daily Advertiser, 
 
 September. 
 Republican Ratification Meeting, Faneuil Hall, Address at, as President. 
 
 In Boston Daily Advertiser, October 8. 
 Boston Back Bay River Park, Remarks on. In Boston Daily Advertiser, 
 
 November 5. 
 
 1876 
 Stephen Decatur, Tribute to. In Boston Daily Advertiser, January 13. 
 
512 BIBLIOGRAPHY 
 
 Public Parks, Meeting in Favor of. Address at. In Boston Daily Advertiser, 
 
 June 8. 
 Republican Meeting at Cambridge. In Boston Daily Advertiser, November 3. 
 Republican Meeting at Boston. November. 
 
 1877 
 
 Points in American Politics: Modes of Presidential Election — Ascertaining 
 the Presidential Vote — Tenure of Office and Re-eligibility of the President — 
 Civil Service Reform — Seats of Cabinet Ministers in the Two Houses — Re- 
 sumption of Specie Payments — Withdrawal of Federal Troops from South- 
 ern States. In North American Review, January, 1877, pp. 1-30. 
 
 Halifax Fisheries Commission: Argument of R. H. Dana, Jr., on behalf of the 
 United States. Public Documents. Halifax Commission 1877, U. S. Govt. 
 Printing Office 1878, vol. iii, pp. 1652-1705. Also separate pamphlet, 8vo, 
 82 pp. (Printed in this collection.) 
 
 Francis Dana: Biographical Sketch. Pamphlet, Philadelphia; also in Pennsyl- 
 vania Magazine of History and Biography, No. 1, vol. i. 
 
 1878 
 
 Lord Kinnaird, Tribute to. In Boston Dally Advertiser, February 13. 
 Chief Justice Bigelow, Tribute to. In Boston Daily Advertiser, April 19. 
 
 1880 
 
 Nullity of the Emancipation Edict: The Peculiar Form and Manner of 
 
 What had a great Moral and Practical Effect. In the North American Review , 
 
 August, pp. 128-134. 
 Sketch of American Diplomacy. In Scribner's Monthly Magazine, August, 
 
 pp. 616-621. 
 Leonard Woods. In Scribner's Monthly Magazine, November, pp. 138-144. 
 Emancipation Proclamation : Answer to Criticisms. In Springfield Republican, 
 
 December, 1880, or January, 1881. 
 
 1882 
 
 Judge Samuel Sumner Wild, Memoir of, by Gardner White. Letter of R. H. 
 Dana, Jr., in pp. 14-21. 8vo, John Wilson & Son, Cambridge, 
 
 1890 
 
 Biography of Richard H. Dana, Jr., by Charles Francis Adams. Houghton, 
 
 Mifflin & Company, Boston, 1890, two volumes, 8vo, 814 pp. 
 Revised Edition, ditto, 1891, two volumes, 8vo, 799 pp. 
 
 1891 
 
 A Voyage on the Grand Canal of China. In the Atlantic Monthly, vol. Ixvii, 
 
 No. 403, May, pp. 600-609. 
 Richard Henry Dana. By Mr. Hamilton Andrews Hill; containing extracts 
 
 from Mr. Dana's writings and conversation. Andover Review, May, pp. 482- 
 
 496. 
 
INDEX 
 
 Adams, Charles Francis, Sr., early friend, 12 ; 
 Pres. Buffalo Free Soil Conv. 1848, 154; vice- 
 presidential candidate and enthusiasm for, 
 159-161. 
 
 Adams, Charles Francis, Jr., author of biography 
 of R. H. D., Jr. (See Biography.) 
 
 Adams, John, with reference to the Mass. con- 
 stitution of 1780, 92; contrasted with Rufus 
 Choate, "290. 
 
 Adams, John Quincy, in connection with Mon- 
 roe Doctrine, 297-325; the "Father of the 
 Monroe Doctrine," 298, 344 (note). 
 
 Admiralty Jurisdiction, history of, in the U. S., 
 6, 511. 
 
 Advent, parish of, in Boston, 504, 505, 506. 
 
 Agassiz, Prof. Louis, early friend, 10; did not 
 accept Darwinism, 24. 
 
 Alabama Claims, high award for, at Geneva 
 basis of large award against the U. S. in the 
 Halifax Fisheries case, 351. 
 
 AUston, Washington, uncle by marriage, 8; 
 charm and European friends of, 9; one evening 
 a week with, 14; Dana's Introduction to Let- 
 ters and Poems of, 25, 505, 506; denies truth of 
 anecdotes about, 503; on Allston's Belshaz- 
 zar's Feast, 504. 
 
 American Loyalt.v, lecture on, 25, 504. 
 
 Amy Warwick. 'See Prize Causes.) 
 
 Andrew, Gov. John A., speech on death of, 1867, 
 510. 
 
 Appointment vs. Election of Judges of Probate, 
 speech on, at Mass. Constl. Conv. 1853, 507. 
 
 Architecture, Gothic, letter on, 504; general, 
 letter on, 504. 
 
 Arlington, speech at, on June 17, 1866, 510. 
 
 Ballot in the U. S., letter to Lord Radstock on, 
 508. 
 
 Bancroft, George, early friend, 10. 
 
 Banks, Gen. N. P., in Mass. Constl. Conv. 
 1853, 78. 
 
 Bartlett, Sidney, in Mass. Constl. Conv. 1853, 78. 
 
 Beamis, George, in law school with, 13. 
 
 Belligerency, England's recognition of, in Civil 
 War turned by Mr. Dana in Prize Causes into 
 acquiescence in right of the U. S. to blockade, 
 42, 237-239, 273, 274; powers of, 244-246. 
 
 Belmont, argument against .separation of Town 
 of, 508. 
 
 Berkeley, Bishop George, admires philosophy of 
 and names street for, 22. 
 
 Bible in the PubUc Schools, The, 1; argument 
 on, 69-77, 507. 
 
 Bibliography, 503-512. 
 
 Biography of R. H. Dana, Jr., by Charles Francis 
 Adams (Jr.), 1890, a striking one, 1-2; omis- 
 sion as to general reading and study in 
 
 evenings, 14-16; as to Thackeray, 16-17; as to 
 philosophy, 19-24; corrections of statements 
 in, as to Milton, 27; as to Tennyson, 27-28; 
 as to Darwin, 28; Mr. Dana not inconsistent, 
 as stated in biography, but always claimed the 
 Civil War was a great war with a great, de facto 
 power, during the War as well as after it was 
 over, 235-240. (See also 273-275.) 
 
 Blaine, Secretary James G., Monroe Doctrine 
 sets precedent for Roosevelt's San Domingo 
 plan, 341. 
 
 Boston Back Bay River Park (1875), 46-47, 
 511; (1876), 512. 
 
 Boston, Hartford & Erie R. R. Bondholders, 
 Argument for,_1871, 510. 
 
 Bounties, speech against equalization of, 1867, 
 510. 
 
 Brent, William, witness against Anthony Burns, 
 215-217, 222-223, 226-232. 
 
 Brown, John, views on, 41-42; how we met, 610. 
 
 Buffalo Free Soil Conv. 1848, account of, 149- 
 163, 504. 
 
 Butler, Gen. B. F., of Mass., runs against as 
 independent on honest money issue, 61; in 
 Mass. Constl. Conv. 1853, 78, 87; Dana's 
 "kid gloves," 445; campaign against, speeches 
 in Gloucester and Middletown, and acceptance 
 of nomination, 510. 
 
 Butler, B. F., of N. Y., with Chase of Ohio, 
 joint author of Free Soil platform, Buffalo, 
 1848, 153. 
 
 Burden of proof. (See York case.) 
 
 Burke, Edmund, reads, 15, 436. 
 
 BurUngame, Anson, in Mass. Constl. Conv., 
 78, 97. 
 
 Burns, Anthony, defense of, 32; argument in 
 same, 210-233, 507; introduction and general 
 remarks, 210-213; Marshall's guard, 210-211; 
 identity, 213-217; identity as affected by 
 time, seen in Virginia and Boston, 217-222; 
 does not owe service to Suttle, claimant, be- 
 cause leased by him to Mr. Millspaugh, 222, 
 226-230; was there an escape? 226-230; sec- 
 tions 6 and 10 of the fugitive slave law as 
 applied to the case, 223-226; alleged admis- 
 sions of Burns if made were made under 
 pressure and threats, 230-232 ; presumption 
 of freedom, 212-213, 232-233 ; refusal of fee 
 in Burns case, 210-211, 507. 
 
 Byrnes, witness and deputy marshal in Davis 
 rescue case, 203, 205. 
 
 Cabinet Ministers in U. S., seats in both Houses 
 
 of Congress, 512. 
 Cambridge School, high standard of, 11. 
 Camero.n, Camp, speech on flag-raising at, 1861, 
 
 508. 
 
514 
 
 INDEX 
 
 Canning, George, description of, in English 
 Parliament, by "Uncle Edmund," 64-65. 
 
 "Carpet Bag" rule, Mr. Dana opposed to, 235. 
 
 Cass, Lewis, referred to in Free Soil address, 
 146-148 ; in account of Buffalo Conv. 1848, 
 151, 162 ; cheers for, at Great Gra\'itation 
 Meeting, a Parody, 175. 
 
 Centennial Oration at Lexington, 1875, 511. 
 
 Channing, Prof. Edward Tyrrell, early friend, 
 10; assistant to at Harvard, 14; account of, 25; 
 article on, 507; biographical notice of, 507. 
 
 Channing, William EUery, early friend, 10. 
 
 Charles River Park, development of, in 1875, 
 46-47, 511; in 1876, 512. 
 
 Chase, Salmon P., with Butler of N. Y. chief au- 
 thor of Free Soil platform, Buffalo, 1848, 153. 
 
 Child, Prof. F. J., early friend, 10; on civil service 
 reform, 51; entertaining on ocean voyage, 475. 
 
 China, Voyage on Grand Canal of, 512. 
 
 Choate, Rufus, address on, 1; early friend, 10; 
 literary anecdote of, 18; wealth of illustration, 
 28; in Mass. Constl. Conv. 1853, 78; abandons 
 Free Soil platform, 147; a character in Great 
 Gravitation Meeting parody, 167, 171-174; 
 address on death of, 188-294, 508; "The age 
 of miracles is past," 288; the homeward bound 
 Indiaman, 289; basis of his oratory, 290-291; 
 aesthetic nature, 291; poetic temperament, 
 292; love of philosophy, 293. 
 
 Civil service reform, description of "spoils" 
 system, and remedy by, 44-46, 48; advocates, 
 "goes deeper into the political life of the nation 
 than any other . . . policy," 49-53; its advo- 
 cacy a hindrance to political advancement, 
 50-53; a vision, 61; judges in the political mil!, 
 when elected, 95; bad appointment of Halifax 
 Fishery Commission a bit of party "spoils," 
 350; lack of permanent under secretaries in 
 state and other departments of the IJ. S., 352- 
 353; "subsoiling," 511; in Points in American 
 Politics, 1877, 512. 
 
 Civil War recognized by Mr. Dana consistently 
 as a great war, 5, 43, 235-241. 
 
 Clay, Henry, Clay Whigs at Buffalo Free Soil 
 Conv., 150. 
 
 Ckrgyman defended on charges of adultery, 31. 
 
 Cleveland, Pres. Grover, Venezuelan boundary 
 question, 330-337. 
 
 Clifford, ex-Gov., chosen as U. S. member of Hal- 
 ifax Commission, 349. 
 
 Clifford, Judge Nathan, rebuked for inferior 
 appointment, 48-49. 
 
 Coleridge, Samuel Taylor, made real to young 
 Dana, from his friend AUston, 8-9; reads, 16; 
 limitations of human reason, 21. 
 
 Collision at sea. (See Osprey.) 
 
 Colored citizens of Boston, letter to, on President 
 Grant, 1872, 511. 
 
 Commonwealth (newspaper), libel suit against, 
 defended by R. H. Dana, Jr., 506. 
 
 Conciliation, reasonable, with southern states 
 '61, 508. 
 
 Constitution proposed, 1853, speech favoring, 
 507. 
 
 Constitutional Convention tor Mass., 1853 
 
 Dana goes into metaphysics of constitutional 
 government, 5-6; gains reputation in, 63; 
 speech on judiciary, 78-116; on other subjects, 
 506. 
 
 Cooke, Prof. J. P., early friend, 10; changes in 
 theory of chemistry, 20. 
 
 Cuba and Back, To, 1859, a vacation voyage, by 
 R. H. Dana, Jr., 508. 
 
 Curtis, Judge Benjamin R., remarks on death 
 of, 1874, 511. 
 
 Curtis, George T., fairness as U. S. Commis- 
 sioner, 204; as witness in rescue case, 197. 
 
 Curtis, George William, Dana as civil service 
 reformer before, 46. 
 
 Dalton, Benjamin F., defense of, on charge of 
 murder, 507. 
 
 Dalton vs. Dalton, divorce case, argument in, 
 29-30, 508. 
 
 Dana, Miss R. Charlotte, sister of R. H. D. , Jr., 9. 
 
 Dana, Edmund Trowbridge, Sr., uncle, literary 
 influence, artistic friends and cultivation of, 
 8-9; how Johnson revised Boswell's notes, 19; 
 journal entries of conversations with stories of 
 characters in English Parliament and of mirth 
 of Genl. Washington, 64-08. 
 
 Dana, Edmund Trowbridge, 2d, brother, high 
 education and brilliancy of, 9; reader of phi- 
 losophy, 20. 
 
 Dana, Francis, Sr., grandfather, anecdote of 
 Washington at Valley Forge, 66; member of 
 Continental Congress, signer of Articles of 
 Confederation, appointed minister to Russia, 
 Chief Justice of Massachusetts, 440; biograph- 
 ical sketch of, 512. 
 
 Dana, Francis, Jr., uncle, 9; reminiscence of, 507. 
 
 Dana, Richard Henry, Sr., father, essayist, poet, 
 founder of North American Review, early 
 lecturer on Shakespeare, 7; encourages hard 
 work at school, 10; encourages manliness, 12; 
 reader of philosophy, 20. 
 
 Dana, Richard Henry, Jr., views on American 
 aristocracy, 48-61; college rank, 12; Bowdoin 
 prizes, 12; bookkeeping, 26; hard work, 26, 
 56-57; law school, 13-14; Milton, fondness 
 for, 26-27; attitude as lawyer, 31-36; common 
 sense views, 41-46; philosophy, 19-24; reason- 
 ing on fundamental principles, 3-6, 37-43; 
 general reading, 11, 12, 14-20, 23, 24, 26-28; 
 religious views, 21-23; views on Thackeray, 
 16-17; style, 14, 37; fondness for Tennyson, 
 27-28; free soiler, not abolitionist, 41, 59-60; 
 powers of debate, 47-48; nominations for 
 Congress, 53, 61; offered position of minister 
 to Russia, 54; offered judgeship in Mass. 
 Supreme Judicial Court, 54; attorney for U. S. 
 in the prosecution of Jefferson Davis, 64; 
 counsel for U. S. Halifax Fishery Commission, 
 54, 344-425; ambassadorship to England 
 offered by Grant, 55; professional career, 31- 
 36, 55-56; success, 48-49; repartee, and as a 
 raconteur, 58; called a man of genius, 59-62; 
 as a churchman, 61-62; member of the Mass. 
 legislature, 5, 44, 47, 53, 117-144; writes a 
 parody on the fugitive slave law as necessary 
 
INDEX 
 
 515 
 
 for the preservation of the constitution, Great 
 Gravitation Meeting, 164-177; differs from 
 Sumner on reconstruction, 235; Prize Causes, 
 1, 4-5, 41, 235-'241, 273-287; turns the Eng- 
 lish acknowledgment of belligerency in the 
 Civil War into recognition of powers of block- 
 ade, 42, 237-239, 273-274; secret history of 
 the Halifax award, 345-354; biography of, by 
 Charles Francis Adams (see Biography); short 
 memorial of, by Hamilton A. Hill, 1891, 512. 
 (See also index generally.) 
 
 Dante Society, an early member of, 24. 
 
 Darwin, attitude towards, 24-28. 
 
 Davis, Charles G., defense of, on charge of aiding 
 escape of fugitive slave Shadrach, 178-209, 505. 
 
 Davis, Jefferson, counsel for U. S. against, 
 1865, 54. 
 
 Davis, William, in law school with, 13. 
 
 Davis, Judge Woodbury, article on removal of 
 for free soil wws, 507. 
 
 Dawes, Henry L., in Mass. Constl. Conv. of 
 1853, 78; responsible for bad appointment of 
 U. S. Commissioner, Halifax Fishery Com- 
 mission, 350. 
 
 Decatur, Stephen, tribute to, 1876, 511. 
 
 Decoration Day address at Cambridge, 1868, 510. 
 
 Delfosse, M. Maurice, arbitrator on Halifax 
 Fishery Commission, 345-354. 
 
 Democracy, free D. meeting, letter to, on "Ex- 
 cess of Freedom," 506. 
 
 Democrats and democratic party in connection 
 with Buffalo Free Soil Convention, 1848, 151, 
 163. 
 
 Dexter, Franklin, remarks on death of, 508. 
 
 Dickens, Charles, remarks at dinner to, 503. 
 
 Diplomacy, sketch of American, 1880, 512. 
 
 Drago Doctrine on collecting claims against 
 nations by war — Monroe Doctrine, 341-342. 
 
 Eastburn, Bishop, and his Clergy, 504. 
 Election or appointment of judges of probate, 
 
 speech on, in Mass. Constitutional Conven- 
 tion 1853, 507. 
 Elections by plurality, speech on, in Mass. 
 
 Constl. Conv. 1853, 507. 
 Electoral reform for choosing president of U. S., 
 
 44, 512. 
 Eliot, Samuel A., votes in Congress for fugitive 
 
 slave law, 1850, 187. 
 Emancipation, preferred gradual, and views on 
 
 John Brown, 41-42. (See also Negro Suffrage.) 
 Emancipation Proclamation, 247-248; nullity in 
 
 form of, though effective as a policy, 512; 
 
 answer to criticism on latter, 512. 
 Emerson, Ralph Waldo, teacher, 10, 12; goes to 
 
 hear, 20. 
 Enemy's territory, the meaning of the prize 
 
 decision, 4-5, 277-287, 508. See also Prize 
 
 Causes. 
 English Contrasts, lecture on, 25. 
 Essex Railroad case, 505. 
 Ether, discoverer of, 504; tribute to Morton, 
 
 the discoverer of, 510. 
 Evarts, Wilham M., early friend, 10; in law 
 
 school with, 13; sets a precedent for the sub- 
 sequent San Domingo plan of Pres. Roosevelt, 
 340; illuminating note on Halifax Fishery 
 award, 345. 
 
 Everett, Edward, early friend, 10; speech at 
 50th anniversary in Lexington, 11; Dana's 
 address on, 28, 509. 
 
 Excess of Freedom, letter on, to free democracy 
 meeting, 506. 
 
 Fee, refusal of, in fugitive slave cases, 210, 507, 
 511. 
 
 Federal troops in the South, advocated with- 
 drawal of, 1876, 45, 512. 
 
 Fields, Mr. and Mrs. James T., early friends, 10. 
 
 Fillmore, Millard, Pres., U. S., signs fugitive 
 slave law, 1850, 164; policy on fugitive slave 
 rescue cases, 183-185. 
 
 Fire at sea, burning of the Mastiff, 508. 
 
 First impressions of a sailor, 505. 
 
 Fishery Commission, Halifax, counsel for the U. 
 S., 54, 345-426. (See also Halifax Fishery 
 Commission and Hague Tribunal.) 
 
 Flag, protection of the, Virginius case, 1874, 511. 
 
 Football at Harvard, 1858, 508. 
 
 Foster, Judge Dwight, references to, in Halifax 
 Fishery argument, 354-356, 373, 395, 411. 
 
 Fourth of July address, Faneuil Hall, 1862, 509. 
 
 Fox, Charles James, in ParUament, described by 
 "Uncle Edmund," 64. 
 
 Free soil, meeting at Buffalo, 1848, account of, 
 149-163, 504; at Boston, 1848, remarks as 
 president of, 145-148; at Faneuil Hall, 1848, 
 504; at Faneuil Hall, 1850, speech at, 505; at 
 Worcester, speech at, 505; platform aban- 
 doned by Whigs, 145-148, 505; meeting in 
 1850, 505; social and political influence 
 against counsel for fugitive slaves or rescuers, 
 183-185, 190-192, 195-196, 201-202, 205-208, 
 210-211; call for convention, 1855, 507; on 
 the removal of Judge Woodbury Davis for 
 free soil views, 507. 
 
 Freedom, excess of, letter to free democracy 
 meeting, 506. 
 
 Fugitive slave cases, attitude as lawyer in An- 
 thony Burns case, 32-33; freedom as against 
 money, 42, 212-213; social and political in- 
 fluence against counsel for fugitive slaves and 
 rescuers, 183-185, 190-192, 195-196, 201-202, 
 205-208, 210-211; Sims case, 505; refusal of 
 fee in, 210, 507, 511; mistaken identity, Gibson 
 case, 166, 214; Freeman case, 214; Lewis 
 Hayden, 511. (See also Burns, Anthony; 
 Davis, Charles G ; Hayden; Morris; Shad- 
 rach.) 
 
 Fugitive Slave law of 1850, immoral and unjust, 
 32; opposed its unjust and drastic provisions, 
 41-42, 60; support of, the test in federal pa- 
 tronage, 60; parody on, as essential to the 
 preservation of the Constitution, 164-177; 
 trial by jury not allowed in, 167, 170-171, 174, 
 187-190; analysis of, in Burns case, 223-226; 
 resolutions on, 505. (See also Fugitive Slave 
 cases.) 
 
516 
 
 INDEX 
 
 Gait, Sir Alexander, British Commissioner 
 Halifax Fishery Commission, 349-354. 
 
 Geneva Arbitration. (See Alabama Claims.) 
 
 Geneva, N. Y., address before literary societies 
 of, 506. 
 
 Gestures, few and not artificial, 7, 462-463; in 
 rhetorical training, 511. 
 
 Gibson, Adams, mistaken for fugitive slave, 166, 
 214. 
 
 Golden Rocket argument before U. S. Supreme 
 Court, 1871, 510. 
 
 Gothic architecture, 504. 
 
 Gould, Prof. B. A., early friend, 10. 
 
 Grand Canal of China, Voyage on, 1859, 512. 
 
 Grasp of War, speech and resolutions on recon- 
 struction, 1805, 5, 43, 234-272, 509; powers of 
 reconstruction, 243-247, 252-254, 258-259, 
 261-264, what ought to be done? 247-248, 
 264-265, 268-269; how ought it to be done? 
 248, 252, 25^1^258, 263-264, 265-272; laws 
 against negroes in southern states, 248-250, 
 260-262, 267; negro franchise on educational 
 and property qualifications, 250-252, 271; not 
 social equality demanded for negro, _ 270- 
 271. 
 
 Great Britain's acknowledgment of belligerency 
 in Civil War a help to blockade and pri^e, 42, 
 237-239, 273-274; connection with in origin 
 of the Monroe Doctrine, 296-300; connection 
 with French intervention in Mexico, 329-330; 
 Venezuelan boundary question, 330-337. 
 
 Great Gravitation Meeting, parody on fugitive 
 slave law to preserve the constitution, 164- 
 177, 505. 
 
 Greenleaf, Prof. Simon, professor in Harvard 
 Law School, 13; true attitude of the lawyer, 
 36; resolutions on death of, 507. 
 
 Greenoughs, early friends, 10. 
 
 Grier, Judge Robert C, Dana cleared up doubts 
 of, in Prize Causes, 4; writes opinion of U. S. 
 Supreme Court in Prize Causes, 239-241; 
 praises Dana's argument in Prize Causes, 275; 
 meaning of Prize Cause decision, Enemy's 
 Territory, 277-287. 
 
 Habeas corpus, on right of, speech in Mass. 
 Constl. Conv. 1853, 506. 
 
 Hague Peace Conference, 1907, on the Monroe 
 Doctrine, 341-342. 
 
 Hague Tribunal decides war enforced claims as 
 preferred, — its effect on the Monroe Doc- 
 trine, 1903, 338-339; on meaning of fisheries 
 treaty of 1818 in 1910, 353-354. 
 
 Hale, John P., candidate at Buffalo Free Soil 
 Convention, 1848, 152, 154, 156-159; speech 
 at dinner to, 506; speech on presentation of 
 medal to. 506. 
 
 Halifax Fishery Commission, secret history of, 
 345-354; argument of R. H. Dana, Jr., before, 
 354-355, 513; the fisheries won from the 
 French by aid of N. E. colonists, 254-256; 
 right of fishing generally, 356, 359; right of 
 U. S. "acknowledged" after Revolutionary 
 War, 360-361; war of 1812 and treaty of 1818, 
 361-362; mackerel fishery first important in 
 
 1827, 363; exclusion from 3-mile limit expen- 
 sive to Great Britain, 363-365, 368; headland 
 question, 365-366; difficulty in construing 
 laws regarding limitations, 366-368; exclusion 
 of Canadian fish from U. S. markets, 368; 
 difficulty of measuring 3-mile limit from shore 
 when at sea, 369-370; 3-mile limit a modern 
 doctrine, 370-372; reciprocity treaty of 1854, 
 372-374; Treaty of Washington, 1871, 374- 
 378; a measure of peace more than money, 
 with U. S., 378-379; money value of the 3- 
 mile restriction, 379-400, 402-410, 423; value 
 to Canada of free sale of fish in the U. S., 400- 
 402, 410-418, 419-422; general conclusions, 
 418-426. 
 
 Hallett, Benjamin F., a character in Great Grav- 
 itation Meeting, a parody on the fugitive slave 
 law, 167, 176-177; commissioner in Davis 
 rescue case, 178-209. 
 
 Harvard, football at, 1858, 508; resolutions 
 presented to Board of Overseers of, 510; re- 
 port of Visiting Committee of Overseers, 
 1873, 1874, and 1875, 511. 
 
 Haven's letter against Dana, 505. 
 
 Hayden, Lewis, defense of, on charge of rescuing 
 fugitive slave, 506; fugitive slave cases and 
 R. H. Dana, Jr., 511. 
 
 Hayes, Pres. Rutherford B., withdrawal of fed- 
 eral troops from southern states, 46; Tilden 
 campaign, 51. 
 
 Higginson, Thomas W., "hterary families" of 
 Cambridge, 7; early friend, 10. 
 
 Hillard, George S., early friend, 10; attacks 
 Dana, 505-506. 
 
 Hoar, E. Rockwood, early friend, 10; Harvard 
 Law School classmate, 13; said that Dana's 
 "Episcopalianism" stood in his way, 48; ad- 
 dress to Republican members of Mass. legis- 
 lature in behalf of, 1874, 511; "subsoiling" or 
 prepared candidates, 511; successor of Sum- 
 ner, 511. 
 
 Hoar, George Frisbie, early friend, 10; tells of 
 Dana's turning a whole convention, by his 
 sole eloquence, to Lincoln's support, 48; 
 tirades against George William Curtis, 52. 
 
 Holmes, John, " Uncle Edmund" resembles, 8; 
 early friend, 10. 
 
 Holmes, Oliver Wendell, early friend, 10. 
 
 Howe, Mrs. Julia Ward, early friend, 10. 
 
 Howe, Dr. S. G., early friend, 10. 
 
 International law, notes to Wheaton, 1866, 510; 
 on the Monroe Doctrine, 293-328; Lowell 
 Institute lectures on, 510; Virginius case and 
 protection of the flag, 511; proposed changes 
 in, 1875, 511. 
 
 Introductory Sketch, 1-63. 
 
 Italy, Unity of, pamphlet on, 1871, 510. 
 
 James, Henry, Sr., early friend, 10. 
 
 Japan, letter on, 1860, 508. 
 
 Johnson, Pres. Andrew, reconstruction experi- 
 ment, 255-257, 263, 265-266, 271; "bread and 
 butter" policy of, Dana resigns on account of, 
 459. 
 
INDEX 
 
 517 
 
 Judges of probate, appointment or election of, 
 speech on, at Mass. Constl. Conv. 1853, 507. 
 
 Judiciary, speech on appointment and tenure of, 
 at Mass. Constl. Conv. 1853, 5-6, 78-116; 
 importance of subject, 80-85; appointment 
 for life present system, no need and no de- 
 mand for change, 81-85, 113; judges to be as 
 free, impartial and independent as the lot of 
 humanity will admit, 84; history of, in Eng- 
 land, 85-87; trust the people? wise people 
 put themselves under "restraint," 87-91, 101- 
 lO^i; judiciary more important in a republic 
 than in a monarchy, 91; history in the U. S., 
 9i; a judiciary dependent on elections, 93; 
 laws of N. Y. and Maryland, 93-95; judges in 
 the "political mill," 95-96; the tyranny of the 
 majorities, 91-101, 103-107; people not al- 
 ways right, 105-107; short terms by re- 
 appointment, 107-116. 
 
 Juries as judges of the law, speech against, in 
 Mass. Constl. Conv. 1853, 506. 
 
 Jury, trial by, not allowed in fugitive slave cases, 
 167, 171-174. 
 
 Kalloch, Rev. J. S., defense of, 508. 
 King, Preston, Buffalo Conv. of 1848, 152. 
 Kinnaird, Lord, tribute to on death of, 1878, 512. 
 
 LaFayette, tour in U. S. 1825, excities patriot- 
 ism, 11. 
 
 Latawana, The, admiralty liens and material- 
 men, 1875, 511. 
 
 Lawrence, Abbott, 1792-1855, silent on free soil 
 issues, 147. 
 
 Lawrence, William Beach, writes in London Law 
 Magazine that Prize decision recognized right 
 of secession to southern states, 277; suit of, 
 against Mr. Dana, as to Notes on WTieaton's 
 International Law, after long delay, ends in 
 Dana's favor, 62. 
 
 Lea\'itt, Joshua, at Buffalo Free Soil Conv. 
 1848, 158-159. 
 
 Legislature, town representation in, speech on, 
 in Mass. Constl. Conv. 1853, 506. 
 
 Legislature of Mass., article on, 1868, 510. 
 
 Letters from a Father to a Son, 1-2; note by the 
 "Son," 429-477; led by father's love and es- 
 teem, 430-435; the whitest soul, 435-436; 
 friendship with son, 436-437; no coddling, 
 437-438; warning against aristocratic ten- 
 dencies in U. S., 439; example in religion, 441- 
 447; in family, and romantic love for his wife, 
 441-444; tender thoughtfulness, 444; sense of 
 fun, 444; conduct as to aristocracy and "kid 
 gloves," 441-446; sweet disposition, 446; 
 excuse for pubhshing so much in praise of son, 
 447; an appeal to the inward vision, 447; let- 
 ters: — from Shakespeare's house, 448; to a 
 son at St. Paul's School, 448-470; on entering 
 college, 470-472; on college boat races, 473, 
 485; on journey in Europe, 485-501; on loss of 
 English mission, 449-500. 
 
 Lexington, Centennial Oration, 1875, 1, 511; 
 
 and Concord data, 511. 
 Liberal party, in Free Soil Conv. 1848, speech, 
 150-153. 
 
 Lincoln, Pres. Abraham, his idea of emancipa- 
 tion, 41; Dana defends, 43; Dana turns Mass. 
 Republican State Conv. to favor, 48; offers 
 Dana a portfolio, 63; emancipation by pur- 
 chase, 40; at first minimizes Civil War for 
 purposes of diplomacy, 240-273; on negro 
 franchise, 243; emancipation proclamation, 
 247-248; speech on, 1861, 508; speech on, 
 before meeting of N. Y. capitalists in 1864, 
 509; speech on assassination of, in 1865, 509. 
 
 Liquor question, speech on attitude of parties, 
 
 1867, 510. 
 
 Liquors, intoxicating, act to regulate, report, 
 
 1868, 510. 
 
 Loan of state credit, speech against, in Mass. 
 
 Constl. Conv. 1853, 503. 
 Longfellow, Henry W., early friend, 10. 
 Loring, Charles G., honorable conduct of law 
 
 cases, 35-36. 
 Loring, Judge E. G., against removal of, 60; U. S. 
 
 commissioner in Anthony Burns fugitive slave 
 
 case, 210, 233; remarks against removal of, 
 
 1855, 507; letter on final removal of, 1857 
 
 508. 
 Loring, Dr. G. B., a candidate for governor, 
 
 1875, 511. 
 Lothrop, Thornton K., on Prize arguments, 
 
 mistakes ground taken by Dana, 236-241. 
 Lewisburg, C. B., capture of, by N. E. colonists 
 
 under Pepperell, 355-356. 
 Lowell, James Russell, early friend, 10; on 
 
 Tennyson's manners, 27; on learning to speak 
 
 French, 497. 
 Lunt, George, U. S. district attorney, conduct 
 
 in trial of rescue cases, 1851, 179, 185, 209; 
 
 "sedulously present" in Burns fugitive slave 
 
 case, 211. 
 
 McCall, Samuel W., secures civil service reform 
 plank in Natl. Repub. Conv. 1888, 52. 
 
 McLean, John, candidate in the Buffalo Free 
 Soil Conv. 1848, 154. 
 
 Mackenzie, Commander, court martial of, in 
 Somers mutiny case, 503. 
 
 Manchester, N. H., speech at, on reasonable 
 conciliation with the southern states, 1861, 
 508. 
 
 Mandamus, in ecclesiastical cases in America, 
 507. 
 
 Marshall, Judge John, story of, that excited 
 mirth of Washington, told by "Uncle Ed- 
 mund," 67-68. 
 
 Mason, Jeremiah, compared with Rufus Choate, 
 290-292. 
 
 Mason and Slidell, capture and return of, Trent 
 affair, 1861, Dana's views on, 42-43, 508. 
 
 Mass. Constitutional Convention 1853, debates 
 in, 5-6; on the judiciarj , 77-116. (See Judi- 
 ciary, speech on.) 
 
 Mastiff, the ship, burned at sea, 508. 
 
 Mexico, in Monroe Doctrine, revolution vs. 
 Spain, 296; French intervention in, 329-330, 
 340-341. (See also Monroe Doctrine.) 
 
 Middleton, U. S. minister to Russia — Monroe 
 Doct., 297. 
 
518 
 
 INDEX 
 
 Militia, speech on, in Mass. Constl. Conv. 1853, 
 50G. 
 
 MiUspaugh, lessee of fugitive slave, Anthony 
 Burns, 2^6-230. 
 
 Milton, love of, 26-27. 
 
 Monroe Doctrine, note on, by R. H. Dana Jr., 1, 
 295-328; brought to date by R. H. Dana (3d), 
 329-31'l; consists of two declarations, — first, 
 against new colonization, 296-312, 327; sec- 
 ond, against foreign intervention in American 
 affairs, 307-308; conclusions, 326-327; sub- 
 sequent developments, 329-3-14; French inter- 
 vention in Mexico, and MaximiUan, 329-330; 
 Venezuelan boundary question — Great Bri- 
 tain, British Guiana, Venezuela and the U. S.; 
 Pres. Cleveland, Sec. Olney and Lord Salis- 
 bury, 330-337; map showing claims of Great 
 Britain and Venezuela, and the boundary line 
 decreed by the court of arbitration, 338; 
 Hayti, — claims by Germany for reparation 
 and apology against, 337; Nicaragua, Pres. 
 Zelaya, U. S. attitude on the Groce and Can- 
 non cases, 1909, 337-338; Venezuela, collection 
 of monetary claims against, by Great Britain, 
 Germany and Italy, by force, 1902-1903, 338- 
 339; decision of the Hague Tribunal in the 
 same, 338; preference in favor of war enforced 
 claims, and its effect upon the Monroe Doc- 
 trine, 338-339; San Domingo protocol, Pres. 
 Roosevelt's plan of assignment to the U. S. of 
 part of custom duties for benefit of creditor 
 nations, 339-311; ratified by U. S. Senate, 341; 
 precedents for, 340-341; Hague Peace Con- 
 ference of 1907, regulation of use of force to 
 coUect debts from nations, 341-342; general 
 conclusions from history since 1865, 342-343; 
 authorities on the Monroe Doctrine, 343-344. 
 
 Morris, Robert, defense of, in fugitive slave 
 rescue case, 506. 
 
 Morse, Samuel F. B., inventor of telegraphy, 
 remarks on death of, 510. 
 
 Morton, discoverer of ether, tribute to, 1868, 
 510. (See also Ether.) 
 
 Morton, Marcus, Sr. and Jr., in Mass. Constl. 
 Conv. 1853, 78. 
 
 Mount Vernon, visit to, in 1844, 504. 
 
 Mystic River improvements, 505. 
 
 Navy, U. S., speech before oflicers and sailors of, 
 
 1865, 510. 
 Negro, disqualifications in South before recon- 
 struction, 241-242, 248-250, 256, 267. 
 Negro equality before the law, Mr. Dana urged, 
 
 but not social or race equality, 242, 270-271. 
 Negro franchise, on educational and property 
 
 quaUfications, 5, 61, 234, 241-243, 249-252, 
 
 264, 268-9. 
 Negroes, colored citizens of Boston, letter to, 
 
 on Pres. Grant, 1872, 511. 
 New York, speech at meeting of capitalists of, 
 
 1864, 509. 
 Niphon's crew, 507. 
 Northern states not good judges of the negro 
 
 question (?), 270. 
 Norton, Charles Eliot, 8; early friend, 10. 
 
 Old laws continued, speech at Mass. Constl. 
 Conv. 1853, 507. 
 
 Old South argument 1872, 511. 
 
 Olney, Richard, Sec. of State, in Venezuelan 
 boundary case (wh. see), 330-337. 
 
 Onderdank, Bishop, trial of, 504. 
 
 Orr, James Lawrence, governor of S. C, favored 
 negro franchise on educational and property 
 qualifications, 243. 
 
 Osprey, case of collision and rules at sea, under- 
 lying principle discovered by Dana, 4, 39- 
 41. 
 
 Otis, Harrison Gray, early friend, 10. 
 
 Palfrey, J. G., early friend, 10. 
 
 Parker, Francis Edward, discusses philosophy 
 with, 20; commends Dana's courage, 63. 
 
 Parks, Boston river, 1875, 46-47, 511; public 
 address at meeting in favor of, 1876, 512. 
 
 Peace, permanent and honorable, after Civil 
 War, 1865. 509. 
 
 Peace, San Domingo protocol, 339; Hague Con- 
 ference, 1907, 341-342. 
 
 Pepperell, Sir William, capture of Louisburg, 
 355-350, 360. 
 
 Personal Uberty bill, 505. 
 
 Phi Beta Kappa, wit and humor when presiding 
 officer at, 58. 
 
 Philadelphia Convention of 1848 described, 153. 
 
 Phillips, Stephen C, at Buffalo Free Soil Conv., 
 160. 
 
 Phillips, Wendell, reply to, refusing fee in Burns 
 case, 507. (See also 210.) 
 
 Pickman and Silsbee, claimants, argument, 
 508. 
 
 Pitt, WilUam, described in English Parliament 
 by "Uncle Edmund," 64-65. 
 
 Plurality, elections bj', speech on, in Mass. 
 Constl. Conv. 1853, 507. 
 
 PoUtics, American, Points in, 44-46, 512. 
 
 Prescott, state's witness in Davis rescue case, 
 confusion of testimony of, 197-199. 
 
 Prescott, W. H., early friend, 10. 
 
 President of the U. S., election of, 44, 512; ascer- 
 taining vote for, 512; tenure of office and re- 
 eligibility, 44-45, 512. 
 
 Prize Causes, 1, 4-5, 41, 235-241, 273-287; note 
 on, 273-277; how question arose, 273-274; a 
 dilemma, 274; war a process of coercion, 274; 
 blockade and prize necessary part of coercion, 
 274; forcible coercion against a de facto nation 
 equals war, with all war powers, even if the 
 nation exists illegally, 274; argument one of 
 the great ones before the U. S. Supreme Court, 
 274; difficult task of convincing court, 274; 
 Dana's argument based on a large war against 
 a great existing power, 274-275; turns recogni- 
 tion of belligerency by foreign nations into 
 acquiescence of blockade and prize, 274; 
 Dana's argument lost, except as a tradition, 
 275; decision of the court explained in "Ene- 
 my's Territory," 275; "Enemy's territory" a 
 technical phrase, but its use does not admit 
 that southern states had a right of secession, 
 276, and passim to 287; relation to right of 
 
INDEX 
 
 519 
 
 secession, 273-287; Enemy's territory, 1864, 
 (wh. see), 509. 
 
 Probate. (See Judges of probate.) 
 
 Proscription of R. H. Dana, Jr., articles favoring, 
 505; by "son of a merchant," 506. 
 
 Providence, R. I., Republican meeting, speech 
 at, 1863, 509. 
 
 Pultney, Sir WiOiam, described in English Par- 
 liament by " Uncle Edmund," — loses his tem- 
 per, 65. 
 
 Qualifications, of voters, speech on, in Mass. 
 
 Constl. Conv. 1853, 507; for freedmen, see 
 
 Negro franchise. 
 Quincy, Josiah, remarks on death of, 509. 
 Quincys, early friends, 10. 
 
 Rantoul, Robert, in Mass. Constl. Conv. 1853, 78. 
 
 Reasonable conciliation with South, 1861, 508. 
 
 Reconstruction after Civil War, 1, 5, 43, 46, 60- 
 61; in Grasp of War speech (wh. see), ^34-272, 
 509; Mr. Dana did not approve of extreme 
 measures, differed from Sumner and opposed 
 '"Carpet Bag" rule, 235. 
 
 Reforms in American politics, 44-46, 512. 
 
 Repeal of the usury laws, speech on, 1, 44, 47, 53, 
 117-144. (See Usury Laws.) 
 
 Republican, convention at Worcester, 1855, ad- 
 dress, resolutions and speech at, 507; report on 
 same to citizens of Cambridge, 507; meeting at 
 Cambridge, 1860, speech at, 508; convention 
 at Worcester, 1862, report on, 509; ratification 
 meeting. Providence, R. I., 1863, speech at, 
 509; at Cambridge, 1863, speech at, 509; reso- 
 lutions and speech at state conv. at Worcester, 
 1868, 510; demonstration in Boston, speech, 
 1868, 510; ratification meeting, Faneuil Hall, 
 address as president at, 1875, 511; meeting at 
 Cambridge, speech at, 1876, 512; at Boston, 
 1876, speech at, 512. 
 
 Resumption of specie payments, 512. (See also 
 Butler, Benj. F., speeches and campaign 
 against.) 
 
 Rhetorical training, article on, 1875, 511. 
 
 Riley, John H., deputy marshal, rescue cases, 
 1851, 182, 195-196, 199, 207. 
 
 Roosevelt, Pres. Theodore, peaceful arrange- 
 ment to secure debts of delinquent countries 
 — Monroe Doctrine — San Domingo pro- 
 tocol, 338-341. 
 
 Rush, Richard, minister to England, connection 
 with Monroe Doctrine, 297-298. 
 
 Russia and the Monroe Doctrine, 296-299. 
 
 Russian fleet, remarks at dinner to, 509. 
 
 Sailor, first impressions of a, 507. 
 
 Salisbury, Lord, in Venezuelan boundary case 
 (wh. see), 330-336. 
 
 San Domingo. (See Monroe Doctrine.) 
 
 Sandwich Islands, letter on,1859-1860, 508. 
 
 Saturday Club, one of the first members, 24. 
 
 Seaman's Friend, book by Dana, 59, 503. 
 
 Seamen, address on behalf of, 508; widow and 
 orphans society for, address before, 509; in 
 the church, 504; petition for speedy trial of, 504. 
 
 Secession and the Prize Causes, in "Enemy's 
 Territory" (wh. see) explained, 273-289. 
 
 Seventeenth of June, speech at Arlington, 1866, 
 510. 
 
 Seward, William H., Sec. of State, at first mini- 
 mizes Civil War in diplomacy, 240-273; Trent 
 affair, 42-43; stops French intervention in 
 Mexico, 239-330; sets a precedent for the sub- 
 sequent San Domingo plan of Pres. Roosevelt, 
 340-341. 
 
 Shadrach, fugitive slave, defense of C. G. Da^-is, 
 accused of assisting in rescue of, 178, 209; 
 Scott case, 50C. 
 
 Shaw, Chief Justice, on burden of proof in Peter 
 York case, 39. 
 
 Sheridan, Gen. Philip H., in charge of army of 
 observation, hastens retreat of French from 
 Mexico in 1866, 64, 330. 
 
 Sheridan, R. B., in English Parliament, de- 
 scribed by "Uncle Edmund," 64. 
 
 Sheriffs subject to the governor, speech in Mass. 
 Constl. Conv. 1853, 507. 
 
 Sims, Thomas, fugitive slave, 505. 
 
 Slavery. (See Fugitive Slaves, Negro Franchise 
 and Reconstruction.) 
 
 Slidell, John, return of, in Trent affair, 1861, 
 42-43; letter on same, 508; social exclusive- 
 ness and political democracy of, 446. 
 
 Somers mutiny, 6, 503. 
 
 Sparks, Jared, early friend, 10. 
 
 Spoils system in American politics. (See Civil 
 Service Reform.) 
 
 Sprague, Judge Peleg, follows Dana's argument 
 in settling collision law, 40-41; tribute to, 509. 
 
 State credit, loan of, speech in Mass. Constl. 
 Conv. 1853, 506. 
 
 Story, Judge Joseph, professor in Harvard Law 
 School, compliments Dana's argument in moot 
 court case, 13; literary anecdoteof, 18; reference 
 to, in Burns case, 231; address and speech at 
 Story Association, 506; reminiscences of, 506. 
 
 Story, W. W., tells of wit and humor of Dana 
 shortly before Dana's death, 62. 
 
 "Subsoiling" or voters vs. prepared candidates, 
 1874, 511. 
 
 Sumner, Charles, early friend, 10; on fugitive 
 slave law a test for federal patronage and ci\Tl 
 servnce reform, 50; Mass. Constl. Conv., 78, 
 103; Mr. Dana differs from on reconstruction, 
 235; speech on outrage to, 507; remarks on 
 death of, 1874, 511; on successor of, to the U. 
 S. Senate, 511. 
 
 Sumner, George, early friend, 10. 
 
 Suttle, Col. Charles T., claimant of fugitive slave 
 Anthony Burns, 214-233. 
 
 Taney, Chief Justice Roger B., remarks on 
 
 death of, 509. 
 Taylor, Gen. Zachary, nominated by WTiigs — 
 
 funeral of Wilmot Pro\aso, 145-148; on 
 
 Buffalo Free Soil Conv. 1848, 151, 162. 
 Telegraphy, speech on death of Samuel F. B. 
 
 ]Morse, inventor of, 1872, 511. 
 Tennyson, fondness for poems of, 27-28; dislike 
 
 of strangers, 27-28. 
 
520 
 
 INDEX 
 
 Thackeray, views on, 16-17. 
 
 Thompson, chief counsel for Great Britain at 
 Halifax Fishery Commission, 1877, hopes for 
 permanent settlement, 346; excessive award 
 thwarts that hope, S5i. 
 
 Ticknor, George, early friend, 10. 
 
 Town representation in legislature, speech in 
 favor of, Mass. Constl. Conv. 1853, 506. 
 
 Trent affair, Dana's views on England's demand 
 for return of Mason and Slidell, i-i-iS. 
 
 Trescott, Hon. William Henry, references to, in 
 Halifax Fishery argument, 354, 411. 
 
 Two Years Before the Mast, power of description 
 in, 6; after return from, 1^; clear style and use 
 of short words in, 14; a book intended to re- 
 dress sailors' wrongs, 59; pluck shown in voy- 
 age round the Horn, 62; editions of, 503. 
 
 United States navy, speech before officers and 
 sailors of, 510. 
 
 Usury laws, speech on, illustrates power of origi- 
 nal thought and logical arrangement, 5; sound 
 judgment in policy regarding, 43-45; unusual 
 power of debate in, 47; one of the great 
 speeches in the Mass. Legis., 53; speech in full 
 on, 117-144, 510; philanthropic and Biblical 
 origin of, 118-119, 1'23-125; attempts to regu- 
 late prices of commodities, especially necessi- 
 ties of life, 119-120; bounties, 120; colonial 
 system, 121; protection, 122-123; borrowers 
 not always the feeble, 123; Aristotle on, 124; 
 Calvin exposes Aristotle's fallacy, 124; neces- 
 sity for capital and rent paid for it, 125; not 
 "fixed" but "ascertained" the market value 
 of money, 126; market value varies by 
 changes of supply and demand, 126; difference 
 of good and bad securities, 127, 132; can you 
 keep down rate? 128; repealed in England, 
 1850-1855, 129; no demand to be re-instated 
 there, 129-130; Holland's low rates with no 
 usury laws, 130; evasions of, 131; effect to 
 increase rates by increasing risk when money 
 is scarce, 132-133, 135; borrower may sell 
 property at ruinous loss, but cannot pay above 
 6% for money, 133-134; times of panic, 5% a 
 month may be cheapest money ever borrowed, 
 134-135; increase of chance of panic by, 135; 
 no sliding scale as in corn laws, 135-136; rate 
 regularly above legal rate at long periods, 136; 
 moral aspect of, 137-138; if borrower enforced 
 penalties, could not show face again on 
 'change, 138-140; all economists agree in con- 
 demning, 140; borrower often powerful and 
 rich, and lender the combined savings of the 
 poor, 141-142; diffusion of money brings 
 competition which favors borrowers, 143-144. 
 
 Van Buren, Pres. Martin, candidate of Buffalo 
 
 Free Soil Conv. 1848, 149-163. 
 Venezuelan boundary question, 1895, 330-337; 
 
 forcible collection of claims against 1902-1903, 
 
 338. (See Monroe Doctrine.) 
 Vinton, Major, sketch of, 1847, 25, 504. 
 Virginias, case of, — right of protection of flag, 
 
 1874, 511. 
 
 Voice from the Main Deck, Introduction to, 507. 
 Vote, ascertaining the presidential, 512. 
 Voters, qualifications of, speech in Mass. Constl. 
 Conv. 1853, 507. (See also Negro franchise.) 
 Voyage on the Grand Canal of China, 1860, 512. 
 
 Wallace, Horace Binney, obit, on, 1853, 506. 
 War powers and reconstruction, 6, 43, 234-246, 
 
 243-272. (See also "Grasp of War" speech 
 
 and Reconstruction.) 
 Washington, D. C, Treaty of, 1871. (See Hali- 
 fax Fishery Commission.) 
 Washington, George, Dana reads Lives of, 11; 
 
 gradual abolition of slavery favored by, 60; 
 
 sense of tun, and laughter at two stories, by 
 
 "Uncle Edmund," 66-68; Dana's visit to Mt. 
 
 Vernon, 604. 
 Washington's Birthday, address on, 1862, 608. 
 Webster, Daniel, speeches at 50th anniversary of 
 
 Lexington and Concord arouse patriotism, 11; 
 
 hidden behind dark and impenetrable cloud, 
 
 146; character in Great Gravitation Meeting, 
 
 a parody, 167, 171-175, 290-292. 
 W'estern visitors, speech at dinner to, 1865, 509. 
 W'heaton's International Law, Dana's note on 
 
 Monroe Doctrine (wh. see), 295-328; notes to, 
 
 in general, 1866, 509. 
 Wheatons, the, early friends, 10. 
 Whig party in Mass. abandons free soil, 145-148. 
 
 (See references to, in defense of Davis, 178-209; 
 
 in Anthony Burns argument, 210, 233; in Free 
 
 Soil meeting, 149-163; in Great Gravitation 
 
 Meeting, 164, 177.) 
 Whitcomb, Charles Thomas, obit, on, 1851, 506. 
 Wilde, Judge Samuel S., sketch of, 25; memoir 
 
 of, 1882, 512; sustains Dana's view of burden 
 
 of proof in minority opinion, now the law of 
 
 the land, 39. 
 W'illard, President Sidney, early friend, 10. 
 Wilmot Prowso abandoned by Whigs, as shown 
 
 in free soil speech at Boston, 1848, 147-148; 
 
 speech at meeting to sustain, 505. 
 Wilson, Henry, in Mass. Constl. Conv. 1853, 78; 
 
 on judiciary argument in same, 83-84, 93, 111. 
 Winthrop, Robert C, voted for, in 1847, 145; 
 
 appeal to, in account of Buffalo Free Soil 
 
 Conv., 162. 
 Winthrop Square, Boston, meeting, speech at, 
 
 1865, 509. 
 Withdrawal of federal troops from the South 
 
 advocated in 1876, 45, 512. 
 Woods, Leonard, early friend, 10; sketch of, 25; 
 
 article on, 1880, 512. 
 Worcester, Mass., speech at, 1850, 605; address 
 
 and resolutions and speech at, 1855, 607; 
 
 report to citizens of Cambridge on, 607. (See 
 
 also Free Soil and Repubhcan.) 
 
 York, Peter, in argument before Supreme Court 
 in the case of, Dana seeks the philosophy of 
 law, 3; defense from extreme penalty, not 
 from punishment, 33; settles the true doctrine 
 of the burden of proof, though against the 
 wording of the text-books, 37-39. (See Wilde, 
 Judge.) 
 
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