Supreme Court: Slavery OK, but only for sailors

By Finn J.D. John
July 17, 2016

NEARLY EVERYONE KNOWS the dirty business of “shanghaiing” people onto sailing ships was relatively common in the 1890s in waterfront port towns like Portland and Astoria.

What almost no one knows is that most of that shanghaiing was perfectly legal under state and federal law — thanks to an edict of the Supreme Court, which actually proclaimed that the Constitutional protection against slavery didn’t apply to sailors.

The shanghaiing incident that led to this judicial whopper happened in Astoria, where sailors were always hard to come by and locals knew to watch out. Astoria, as you may remember, is the port in which shanghaiers once were desperate enough to try kidnapping a Methodist minister in his own church (unsuccessfully; the minister turned out to be an ex-prizefighter; here's a link to that story). So when sailors tried to jump ship in Astoria, skippers tended to pull out all the stops trying to get them back.

On one particular day in May of 1895, the barkentine Arago put into Astoria. The ship had just left San Francisco, and Astoria was the first stop on an open-ended cruise to foreign and domestic ports, including Valparaiso, Chile, “and thence to such other foreign ports as the master may direct.” There was no time limitation; the cruise would be over when the captain said it was over. Such contracts were the usual thing sailors would sign (or, in the case of the shanghaied, be forced to sign) before embarking on a voyage.

But for four of the sailors on the Arago, the trip to Astoria had been enough. In classic American blue-collar style, they walked off the job, saying, in effect, “we quit.”

Now, these sailors knew it wouldn’t be that simple. For time out of mind, the private owners of merchant ships had been able to call upon local law enforcement authorities to force their would-be ex-employees to return to the job. They knew what was about to happen; in fact, it was part of their plan. Because they, and the sailors’ union they were part of, knew very well that forcing a man to sail on a ship — shanghaiing him — is compelling involuntary servitude. And involuntary servitude, a.k.a. slavery, is directly forbidden by the Thirteenth Amendment.

But nobody had ever challenged the practice in court before.

So what they and their union wanted was to do just that — and, they hoped, to get a case before the Supreme Court. The Supreme Court would then have no choice but to enforce the plain and blatant language of the Constitution. Yes, they’d broken their contract. Yes, they were liable for whatever costs the shipper incurred as a result. But could they legally be rounded up at gunpoint and returned to the “master” like a runaway slave in ante-bellum Georgia? Surely not. Surely the Supreme Court would put a stop to such practices – right?

Wrong.

In one of the most astonishing decisions ever to come out of the Supreme Court, the 8-1 majority held that sailors were an “exception” to the Constitutional prohibition.

The ruling was shocking to modern ears from start to finish. It kicked off by claiming that the government was allowed to use force to compel performance of a civil contract, citing (among other cases) the case of an actual runaway slave in Pennsylvania before the war.

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Then it claimed that “involuntary servitude” wasn’t involuntary if a person signed an agreement to enter into it — in effect, ruling that actual plantation-style slavery would still be legal if the slaves signed a contract saying it was OK.

Furthermore, it claimed, the Bill of Rights in the U.S. Constitution had been intended only to formalize existing practice, not to create any kind of revolutionary change from English law (an astonishing claim, and very untrue) and that, therefore, the Thirteenth Amendment wasn’t intended to make major changes from established practice. Other than, you know, that "plantation slavery" practice.

Then, in a baffling attempt to establish the ancient tradition of involuntary servitude for sailors, it cited the laws of an ancient tribe of seafaring barbarians from circa 900 B.C. before moving on to approvingly cite the laws of the Hanseatic League of German traders in the late Middle Ages — among whom desertion was punishable by a year’s imprisonment on bread and water or by having the deserter’s face branded.

As for American precedents, the court asserted that all Constitutional rights come with special exceptions to them — a claim it tried to illustrate with a series of really silly examples: that laws against carrying concealed weapons are an exception to the Second Amendment, for one, and that laws against libel are an exception to free speech, for another. The laws requiring cops to act as goon squads for private shipping companies, it claimed, were the same sort of thing — a special exception to the Thirteenth Amendment.

And the ruling finishes off, as if saving its most outrageous point for last, with this gem:

“Indeed, seamen are treated by Congress, as well as by the Parliament of Great Britain, as deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults, and as needing the protection of the law in the same sense in which minors and wards are entitled to the protection of their parents and guardians.”

In other words, the court ruled, sailors were a special class of persons, unfit to be entrusted with the full rights and privileges of citizens.

The full text of the ruling can be found here.

SHANGHAIING HAD, OF course, been a real and growing problem in Oregon port cities for at least 10 years before this ruling came down. But it was after this decision, which became known as “Baldwin v. Robertson,” that the real glory days of shanghaiing came to pass. Having legal cover from the Supreme Court emboldened the captains and labor contractors in a new way.

But it emboldened others, too. The Seamen’s Union soon found that the very egregiousness of the ruling offended and mobilized social progressives and sailors alike, and what seemed a clear attempt to thwart the intent of Congress in passing the Thirteenth Amendment won the Supreme Court no friends on Capitol Hill. It took 15 years, but the ruling led directly to the Seaman’s Act of 1915 — which finally ended involuntary servitude on American merchant ships for good.

(Sources: Streckert, Joe. “Live at the Jack London, Robertson v. Baldwin,” Interesting Times ep. 89, interestingtimespodcast.com; “Tying Seamen to their Jobs,” The Seamen’s Journal, 7 Apr 1920)

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