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Finally, the justices wrote this oft-quoted gem: “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, sub-human class of persons, unfit to be entrusted with the full rights and privileges of citizens. They were not to be expected to stand on their own two feet, to make their own choices and take the benefits or consequences like farmers and loggers and railroad workers would be. They had to be made to do as they were told, and in exchange, the government would see that they were taken care of adequately, fed sufficiently, and not abused too badly.
Every American man, the court said (almost in so many words), was endowed with certain unalienable rights by his creator … so long as he was not a sailor.
THIS WAS AN 8-1 decision by the court. Every Supreme Court justice agreed, with one exception. That one exception was Justice John Harlan, and his dissent was brutal.
“The Thirteenth Amendment of the Constitution of the United States declares that ‘Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction,’” he wrote. “Such is the plain reading of the Constitution. A condition of enforced service, even for a limited period, in the private business of another, is a condition of involuntary servitude. … The placing of a person, by force, on a vessel about to sail is putting him in a condition of involuntary servitude if the purpose is to compel him against his will to give his personal services in the private business in which that vessel is engaged.”
He goes on to almost poke fun at the majority’s citing of 3,000-year-old Greek and 600-year-old Hanseatic law as precedent: “Why the reference to these enactments of ancient times, enforced by or under governments possessing arbitrary power inconsistent with a state of freedom? Does anyone suppose that a regulation of commerce authorizing seamen who quit their ship, without leave, to be imprisoned ‘upon bread and water for one year,’ or which required them to be ‘stigmatized in the face’ with the letter of the town or state to which they belonged, would now receive the sanction of any court in the United States?”
But Harlan was just warming up to the part that must have really been music to the ears of the sailors:
“The further suggestion is made that seamen have always been treated, by legislation in this country and in England, as if they needed the protection of the law in the same sense that minors and wards need the protection of parents and guardians, and hence have been often described as ‘wards of admiralty,” he wrote. “Some writers say that seamen are in need of the protection of the courts ‘because peculiarly exposed to the wiles of sharpers and unable to take care of themselves.’
“In view of these principles, I am unable to understand how the necessity for the protection of seamen against those who take advantage of them can be made the basis of legislation compelling them, against their will and by force, to render personal service for others engaged in private business. … The Constitution furnishes no authority for any such distinction between classes of persons in this country.”
The runaway seaman who breaks his contract, Harlan added, may be liable in damages for the nonperformance of his agreement; but “to require him, against his will, to continue in the personal service of his master is to place him and keep him in a condition of involuntary servitude.”
“It will not do to say that, by ‘immemorial usage,’ seamen could be held in a condition of involuntary servitude without having been convicted of crime,” Harlan continued. “The people of the United States, by an amendment of their fundamental law, have solemnly decreed that, ‘except as a punishment for crime, whereof the party shall have been duly convicted,’ involuntary servitude shall not exist in any form in this country.”
By adding another exception to that blanket prohibition, Harlan said, the Supreme Court was engaging in judicial legislation — creating new law rather than sticking to its Constitutionally limited role of clarifying and interpreting existing law — and thereby usurping the power of the Legislature.
“It is a very serious matter when a judicial tribunal, by the construction of an act of Congress, defeats the expressed will of the legislative branch of the government,” he concluded. “It is a still more serious matter when the clear reading of a constitutional provision relating to the liberty of man is departed from in deference to what is called ‘usage,’ which has existed for the most part under monarchical and despotic governments.”
OF COURSE, IN the short term, this was quite a setback. But Harlan, needless to say, turned out to be the one who was right about this. He was right about something else, too: He pointed out in his dissent that this ruling would be used as a precedent for reintroducing indentured-servitude into the United States, and within a few months that was already happening as states in the defeated South started using it to defend contract-labor drag-them-back-to-work laws for the benefit of the plantations that had formerly been worked by slaves.
It wasn’t a good look.
Nor was the decision popular in the press. “The American merchant marine has been disgraced in the eyes of the world,” the Oregonian wrote in its response to the ruling, “and labeled with the iron bands of such slavery as threatened the very foundations of the country in 1860. … Immediate action is necessary to save our sailors from infamous imposition more degrading than they have suffered in the past.”
The U.S. Congress was not amused, either. Harlan’s caustic observation that the decision amounted to judicial activism was not overlooked by the lawmakers who had voted for the law it overturned. Within months of the decision they replaced it with an even stronger version, the White Act, which closed several loopholes and included desertion in most foreign ports as well as domestic ones. The shipping interests, which had been happily celebrating their victory, by the end of the year surely wished they had not gotten involved.
GETTING LAW-ENFORCEMENT authorities out of the contract-enforcement-goon-squad business was a great first step for American sailors. But they wouldn’t actually be free to quit their jobs without consequences for another dozen years, with the Seamen’s Act of 1915.
Nonetheless, it might have taken a good while longer than it did for sailors to acquire the full rights of American citizens had it not been for the “Arago Four” walking ashore in Astoria and refusing to go along with the path of temporary slavery that had been marked out for them.