by John Marshall Harlan

“ And it is equally clear that no regulation of commerce established by congress can stand if its necessary operation be either to establish slavery or to create a condition of involuntary servitude forbidden by the constitution. ”

“ Absolute, arbitrary power exists nowhere in this free land. The authority for the exercise of power by the congress of the United States must be found in the constitution. Whatever it does in excess of the powers granted to it, or in violation of the injunctions of the supreme law of the land, is a nullity, and may be so treated by every person. It would seem, therefore, evident that no aid in the present discussion can be derived from the legislation of Great Britain touching the rights, duties, and responsibilities of seamen employed on British vessels. ”

“ To give any other construction to the constitution is to say that it is not made for all, and that all men in this land are not free and equal before the law, but that one class may be so far subjected to involuntary servitude as to be compelled by force to render personal services in a purely private business, with which the public has no concern whatever. ”

“ Such a contract, it is scarcely necessary to say, is against the policy of our institutions and laws. If such a sale of service could be lawfully made for five years, it might, from the same reasons, for ten, and so for the term of one's life. The door would thus be opened for a species of servitude inconsistent with the first and fundamental article of our declaration of rights, which, proprio vigore, not only abolished every vestige of slavery then existing in the commonwealth, but rendered every form of it thereafter legally impossible. ”

“ 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. Their supposed helpless condition is thus made the excuse for imposing upon them burdens that could not be imposed upon other classes without depriving them of rights that inhere in personal freedom. ”

“ The constitution furnishes no authority for any such distinction between classes of persons in this country. If, prior to the adoption of the thirteenth amendment, the arrest of a seaman, and his forcible return, under any circumstances, to the vessel on which he had engaged to serve, could have been authorized by an act of congress, such deprivation of the liberty of a freeman cannot be justified under the constitution as it now is. ”

“ In former days, overseers could stand with whip in hand over slaves, and force them to perform personal service for their masters. While, with the assent of all, that condition of things has ceased to exist, we can but be reminded of the past, when it is adjudged to be consistent with the law of the land for freemen, who happen to be seamen, to be held in custody, that they may be forced to go aboard private vessels, and render personal services against their will. ”

“ The infant apprentice, having no will in the matter, is to be cared for and protected in such way as, in the judgment of the state, will best subserve the interests both of himself and of the public. An apprentice serving his master pursuant to terms permitted by the law cannot, in any proper sense, be said to be in a condition of involuntary servitude. Upon arriving at his majority, the infant apprentice may repudiate the contract of apprenticeship, if it extends beyond that period. ”

“ No court is bound to enforce, nor is any one legally bound to obey, an act of congress inconsistent with the constitution. If the thirteenth amendment forbids such legislation in reference to seamen as is now under consideration, that is an end of the matter, and it is of no consequence whatever that government in other countries may, by the application of force, or by the infliction of fines and imprisonment, compel seamen to continue in the personal service of those whom they may have agreed to serve in private business. ”

“ For instance, a regulation of commerce cannot be sustained which, in disregard of the express injunctions of the constitution, imposes a cruel and unusual punishment for its violation, or compels a person to testify in a criminal case against himself, or authorizes him to be put twice in jeopardy of life or limb, or denies to the accused the privilege of being confronted with the witnesses against him, or of being informed of the nature and cause of the accusation against him. ”

“ But those laws, whatever they may have been, were enacted at a time when no account was taken of a man as man, when human life and human liberty were regarded as of little value, and when the powers of government were employed to gratify the ambition and the pleasures of despotic rulers rather than promote the welfare of the people. ”

“ That power cannot be exerted except with due regard to other provisions of the constitution, particularly those embodying the fundamental guaranties of life, liberty, and property. While congress may enact regulations for the conduct of commerce with foreign nations and among the states, and may, perhaps, prescribe punishment for the violation of such regulations, it may not, in so doing, ignore other clauses of the constitution. ”

“ If any seaman who shall have signed a contract to perform a voyage shall, at any port or place, desert, or shall absent himself from such vessel, without leave of the master, or officer commanding in the absence of the master, it shall be lawful for any justice of the peace within the United States, upon the complaint of the master, to issue his warrant to apprehend such deserter, and bring him before such justice ”

“ 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.' 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.' 1 Pars. ”

“ 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. ”

“ It antedated the famous declaration of rights, promulgated in 1780, in which Massachusetts declared, among other things, that 'all men are born free and equal, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties ”

“ If that condition exists at the time the authority of the law is invoked to protect one against being forcibly compelled to render personal services for another, the court cannot refuse to act because the party seeking relief had voluntarily agreed to render such services during a given period. ”

“ If the placing of the appellants on board the Arago at Astoria against their will was illegal, then their refusal to work while thus forcibly held on the vessel could not be a criminal offense, and their detention and subsequent arrest for refusing to work while the vessel was going from Astoria to San Francisco were without authority of law. ”