Supreme Court: Slavery is legal, but only for sailors

By Finn J.D. John
November 1, 2020

IN MAY OF 1895, on the old San Francisco waterfront, four sailors signed onto the four-masted barkentine Arago for a voyage to Valparaiso, Chile (“and thence to such other foreign ports as the master might direct, and thence to return to the United States”) via Astoria.

By the time they got to Astoria, the four of them had had enough of conditions on the Arago. They stepped off the ship and essentially told the skipper, “We quit.”

In doing so, they changed history — and the legal status of sailors would never be the same.

THE “ARAGO FOUR” were Robert Robertson, John Bradley, P.H. Olsen, and Morris Hanson. And it’s possible — in fact, it’s rather likely — that they signed onto the ship with the intention of deserting in Astoria. The seamen’s union they were members of had been hoping for a case like this to come up, so that it could clarify in the courts a new law that had just been passed by the U.S. Congress.

The new law had just been passed in February of that year, and it essentially decriminalized “deserting” from a merchant ship. Before, a sailor who quit a merchant ship in the middle of a voyage could be criminally prosecuted and sent to prison for several months. Now, under this new law, he couldn’t.

The thing was, the law might have changed, but the practices of police and shipping masters had not. That's because they had almost never actually enforced the law itself; rather, they'd used it for leverage to get the deserter to return to work. When a sailor deserted, the captain of his ship didn’t want him in jail, he wanted him back on the ship making money for the company.

Before the law changed, because desertion was a criminal offense, the captain could call the local police to go out and arrest the deserter, and after that the cops usually preferred handing him over to the captain rather than spending the money and resources running him through the local criminal-justice system. The skipper would then put the deserter in irons until the ship was safely out of swimming distance from shore, then put him back to work. That’s the way it had always been done, as far back as anyone could remember.

What had changed, legally, was that now the local cops didn’t have a legitimate reason to be involved, because deserting the ship was no longer a criminal offense. But skippers were still calling cops, and cops were still collaring deserters and dragging them back to work at gunpoint. They were now, essentially, acting like a freelance enforcement squad for the ship owners.

The union felt that, regardless of whether a deserting sailor was treated as a criminal or just as a runaway worker, this practice was a direct violation of the Thirteenth Amendment — the one that had abolished slavery and indentured servitude.

So their plan was to get a test case sent before the Supreme Court, which would, of course, be forced to rule in their favor — since the Thirteenth Amendment specifically, and in very unambiguous language, outlawed all forms of involuntary servitude except prison labor — and order police departments to stop doing this.

Or … so they thought.

THEY COULD NOT have picked a better place in which to run this play than Astoria. Astoria was a notoriously tough port in which to replace sailors. The town was small enough, and relatively good-paying timber jobs so close and easy to get, that crew members were hard to come by — which is, of course, why Astoria had such a reputation as a nest of shanghaiers. At any other port, the skipper of the Arago would have been far more likely to chalk it up to experience, hire replacement sailors out of a local boardinghouse, and be on his way.

But because there were four of them, it would cost a lot of money to replace them in Astoria, if it could even be done; and sailing all the way to Valparaiso short four men, on a modern barkentine (the Arago was only three years old), would be a bad and risky plan.

So the skipper “took the bait” — had the four men arrested and hauled before a justice of the peace. The J.P. promptly stuffed them in a holding cell at the local jail until the ship was ready to weigh anchor, at which time a U.S. marshal escorted them back aboard ship, like runaway slaves getting hauled back to the plantation, and ordered them to get back to work.

But the men, believing they now had a right to quit work like any other American worker, refused to “turn to.”

So the captain clapped them in irons, made an unscheduled stop at San Francisco to drop them off and replace them, and was on his way.

In San Francisco, the four men were promptly arrested and thrown in the Alameda County jail to face charges of refusing their work (which, unlike desertion, was still a crime). When they got their day in court, the judge (as expected) ruled against them; so, backed by their union, they appealed to the U.S. Supreme Court.

Then everyone waited for what they thought was an inevitable verdict on the constitutionality of forcing sailors to work against their will.

They must have been astonished when, a year and a half later, the Supreme Court issued its ruling:

The Thirteenth Amendment, with its prohibition of slavery in all its forms, applied to all Americans, no matter what their race … as long as they weren’t sailors.

THE CASE WAS Robertson v. Baldwin, and it became one of the most notorious decisions in Supreme Court history. For years afterward, seamen referred to it as “the second Dred Scott decision.” It essentially established the status of sailors as — well, for all practical purposes, slaves. Slaves for the duration of their open-ended contracts.

The court’s ruling asserted that the Thirteenth Amendment, when it outlawed “involuntary servitude,” was just talking about actual chattel slavery of the Old South plantation type. And anyway, the court added, servitude wasn’t involuntary if one signed a contract to enter into it — a ruling that suggested that actual plantation-style slavery could come back as long as the slaves signed a contract up front saying it was OK.

The court also ruled that using law enforcement to force a worker to fulfill the terms of a labor contract he’d signed was an acceptable practice. And it actually cited an antebellum court decision over runaway slaves as a legal precedent for this.

The court’s ruling went on to claim that the Bill of Rights — the first ten amendments to the U.S. Constitution — had only been intended to formalize an already-existing Colonial tradition of liberty, not to actually change anything from English law (an extraordinarily audacious and indefensible assertion); and therefore, since that tradition had allowed sailors to be treated as indentured servants at the time the Constitution was ratified, it obviously hadn’t been intended to apply to them, or they would have stipulated it.

The ruling went on to cite precedents for treating sailors as literal wage-slaves, including the laws of the ancient Greek mariners of Rhodes from 900 B.C. and the laws of the Hanseatic League from the Middle Ages (according to which desertion was punishable by a year’s imprisonment on bread and water or by having the deserter’s face branded).

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Finally, the justices penned 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.”

Zing!

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.

(Sources: Sweatshops at Sea, a book by Leon Fink published in 2011 by University of North Carolina Press; The Sailors’ Union of the Pacific, a book by Paul Schuster Taylor published in 1923 by Ronald Press; Storied & Scandalous Portland, Oregon, a book by Joe Streckert published in 2020 by Globe Pequot; justia.com; Portland Oregonian archives from 1897)

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