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[Cite as Robertson v. Baldwin, 165 U.S. 275 (1897). NOTE: This decision concerns seamens' contracts and if compulsion of continuance of the contract is involuntary servitude and a deprivation of rights. On pages 281-282 the decision refers to English history and criminal punishment for breach of personal service contracts. It then refers to individual rights (including the right to arms) in the Bill of Rights as similarly having an English heritage, and "subject[ed] to certain well-recognized exceptions arising from the necessities of the case." The exception mentioned for the right to arms is "laws prohibiting the carrying of concealed weapons." If the Second Amendment protected a collective/militia/state's right, private concealed carrying wouldn't be an exception since it would be entirely unrelated. This is particularly evident considering the other personal rights mentioned and their exceptions. The dissent (page 288) argued for broader personal liberty, not "deference to what is called usage which has existed, for the most part, under monarchical and despotic Governments." Listing of the right to arms among individual rights is similar to Verdugo-Urquidez 494 U.S. at 265 a century later.]



No. 334. Argued December 15, 1896.--Decided January 25, 1897.

Section 4598 of the Revised Statutes is not unconstitutional by reason of its authorizing justices of the peace to issue warrants to apprehend deserting seamen, and deliver them up to the master of their vessel.

The judicial power of the United States is defined by the Constitution, and does not prevent Congress from authorizing state officers to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to perform such other duties as may be regarded as incidental to the judicial power, rather than a part of it.

Section 4598 and 4599, in so far as they require seamen to carry out the contracts contained in their shipping articles, are not in conflict with the Thirteenth Amendment forbidding slavery and involuntary servitude; and it cannot be open to doubt that the provision against involuntary servitude was never intended to apply to such contracts.

The contract of a sailor has always been treated as an exceptional one, and involving to a certain extent the surrender of his personal liberty during the life of the contract.

This was an appeal from a judgment of the District Court for the Northern District of California, rendered August 5, 1895, dismissing a writ of habeas corpus issued upon the petition of Robert Robertson, P. H. Olsen, John Bradley and Morris Hansen.

The petition set forth, in substance, that the petitioners were unlawfully restrained of their liberty by Barry Baldwin, marshal for the Northern District of California, in the county jail of Alameda County, by virtue of an order of commitment made by a United States commissioner, committing them for trial upon a charge of disobedience of the lawful orders of the master of the American barkantine Arago; that such commitment (p.276)was made without reasonable or probable cause, in this: That at the time of the commission of the alleged offence, petitioners were held on board the Arago against their will and by force, having been theretofore placed on board said vessel by the marshal for the District of Oregon, under the provisions of Rev. Stat. 4596, subdivision 1, and 4598, 4599, the master claiming the right to hold petitioners by virtue of these acts; that 4598 and 4599 are unconstitutional and in violation of Section 1 of Article III of, and of the Fifth Amendment to, the Constitution; that 4598 was also repealed by Congress on June 7, 1872, 17 Stat. 262, and that the first subdivision of 4596 is in violation of the Thirteenth Amendment, in that it compels involuntary servitude.

The record was somewhat meagre, but it sufficiently appeared that the petitioners had shipped on board the Arago at San Francisco for a voyage to Knappton in the State of Washington; thence to Valparaiso; and thence to such other foreign ports as the master might direct, and return to a port of discharge in the United States; that they had each signed shipping articles to perform the duties of seamen during the course of the voyage; but, becoming dissatisfied with their employment, they left the vessel at Astoria, in the State of Oregon, and were subsequently arrested under the provisions of Rev. Stat. 4596 to 4599, taken before a justice of the peace, and by him committed to jail until the Arago was ready for sea (some sixteen days), when they were taken from the jail by the marshal and placed on board the Arago against their will; that they refused to "turn to" in obedience to the orders of the master, were arrested at San Francisco, charged with refusing to work in violation of Rev. Stat. 4596; were subsequently examined before a commissioner of the Circuit Court, and by him held to answer such charge before the District Court for the Northern District of California.

Shortly thereafter they sued out this writ of habeas corpus, which, upon a hearing before the District Court, was dismissed, and an order made remanding the prisoners to the custody of the marshal.(p.277)

Whereupon petitioners appealed to this court.

Mr. Jackson H. Ralston for appellants. Mr. James G. Maguire and Mr. H. W. Hutton were with him on the brief.

Mr. Solicitor General for appellees.

Mr. Justice Brown delivered the opinion of the court.

Upon what ground the court below dismissed the writ, and remanded the petitioners, does not appear, but the record raises two questions of some importance. First, as to the constitutionality of Rev. Stat. 4598 and 4599, in so far as they confer jurisdiction upon justices of the peace to apprehend deserting seamen, and return them to their vessel; Second, as to the conflict of the same sections and also 4596 with the Thirteenth Amendment to the Constitution, abolishing slavery and involuntary servitude.

Section 4598, which was taken from 7 of the act of July 20, 1790, c. 29, 1 Stat. 131, 134, reads as follows:

"Sec. 4598. 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; and if it then appears that he has signed a contract within the intent and meaning of this title, and that the voyage agreed for is not finished, or altered, or the contract otherwise dissolved, and that such seaman has deserted the vessel, or absented himself without leave, the justice shall commit him to the house of correction or common jail of the city, town or place, to remain there until the vessel shall be ready to proceed on her voyage, or till the master shall require his discharge, and then to be delivered to the master, he paying all the cost of such commitment, and deducting the same out of the wages due to such seaman."(p.278)

Sec. 4599, which was taken from 53 of the Shipping Commissioners' Act of June 7, 1872, c. 322, 17 Stat. 262, 274, authorizes the apprehension of deserting seamen, with or without the assistance of the local public officers or constables, and without a warrant, and their conveyance before any court of justice or magistrate of the State to be dealt with according to law.

Sec. 4596, which is also taken from the same act, provides punishment by imprisonment for desertion, refusal to join the vessel, or absence without leave.

1. The first proposition, that Congress has no authority under the Constitution to vest judicial power in the courts or judicial officers of the several States, originated in an observation of Mr. Justice Story in Martin v. Hunter's Lessee, 1 Wheat. 304, 330, to the effect that "Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself." This was repeated in Houston v. Moore, 5 Wheat. 1, 27; and the same general doctrine has received the approval of the courts of several of the States. United States v. Lathrop, 17 Johns. 4; Ely v. Peck, 7 Connecticut, 239; United States v. Campbell, 6 Hall's Law Jour. 113 [Ohio Com. Pleas]. These were all actions for penalties, however, wherein the courts held to the familiar doctrine that the courts of one sovereignty will not enforce the penal laws of another. Huntington v. Attrill, 146 U.S. 657, 672. In Commonwealth v. Feely, 1 Va. Cases, 321, it was held by the General Court of Virginia in 1813 that the state courts could not take jurisdiction of an indictment for a crime committed against an act of Congress.

In Ex parte Knowles, 5 California, 300, it was also held that Congress had no power to confer jurisdiction upon the courts of a State to naturalize aliens, although, if such power be recognized by the legislature of a State, it may be exercised by the courts of such State of competent jurisdiction.

In State v. Rutter, 12 Niles' Register, 115, 231, it was held in 1817 by Judges Bland and Hanson of Maryland that Congress had no power to authorize justices of the peace to issue warrants for the apprehension of offenders against the laws of (p.279)the United States. A directly contrary view, however, was taken by Judge Cheves of South Carolina in Ex parte Rhodes, 12 Niles' Reg. 264.

The general principle announced by these cases is derived from the third article of the Constitution, the first section of which declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," the judges of which courts "shall hold their offices during good behavior," etc.; and by the second section, "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign States, citizens or subjects."

The better opinion is that the second section was intended as a constitutional definition of the judicial power, Chisholm v. Georgia, 2 Dall. 419, 475, which the Constitution intended to confine to courts created by Congress; in other words, that such power extends only to the trial and determination of "cases" in courts of record, and that Congress is still at liberty to authorize the judicial officers of the several States to exercise such power as is ordinarily given to officers of courts not of record; such, for instance, as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to perform such other duties as may be regarded as incidental to the judicial power rather than a part of the judicial power itself. This was the view taken by the Supreme Court of Alabama in Ex parte Gist, 26 Alabama, 156, wherein the authority of justices of the peace and other such officers to arrest and commit for a violation of the criminal law of the United States (p.280)was held to be no part of the judicial power within the third article of the Constitution. And in the case of Prigg v. Pennsylvania, 16 Pet. 539, it was said that, as to the authority conferred on state magistrates to arrest fugitive slaves and deliver them to their owners, under the act of February 12, 1793, while a difference of opinion existed, and might still exist upon this point in different states, whether state magistrates were bound to act under it, no doubt was entertained by this court that state magistrates might, if they chose, exercise the authority, unless prohibited by state legislation. See also Moore v. Illinois, 14 How. 13; In re Kaine, 14 How. 103.

We think the power of justices of the peace to arrest deserting seamen and deliver them on board their vessel is not within the definition of the "judicial power" as defined by the Constitution, and may be lawfully conferred upon state officers. That the authority is a most convenient one to entrust to such officers cannot be denied, as seamen frequently leave their vessels in small places, where there are no Federal judicial officers, and where a justice of the peace may usually be found, with authority to issue warrants under the state laws.

2. The question whether sections 4598 and 4599 conflict with the Thirteenth Amendment, forbidding slavery and involuntary servitude, depends upon the construction to be given to the term "involuntary servitude." Does the epithet "involuntary" attach to the word "servitude" continuously, and make illegal any service which becomes involuntary at any time during its existence; or does it attach only at the inception of the servitude, and characterize it as unlawful because unlawfully entered into? If the former be the true construction, then no one, not even a soldier, sailor or apprentice, can surrender his liberty, even for a day; and the soldier may desert his regiment upon the eve of battle, or the sailor abandon his ship at any intermediate port or landing, or even in a storm at sea, provided only he can find means of escaping to another vessel. If the latter, then an individual may, for a valuable consideration, contract for the surrender of his personal liberty for a definite time and for a recognized purpose, and subordinate his going and coming to the will of [paragraph continues next page]

[Currently at pages 275-280.
Proceed to pages 281-282.
Proceed to pages 283-303.]

[1] The docket title of this case is "Robert Robertson, P. H. Olsen, John Bradley and Morris Hansen v. The United States and Barry Baldwin, individually and as marshal of the United States in and for the Northern District of California."