The Republic Afloat: Law, Honor, and Citizenship in Maritime America 9780226924007

Citation preview

The Republic Afloat

American Beginnings, 1500–1900 A series edited by Edward Gray, Stephen Mihm, and Mark Peterson

also in the series:

Conceived in Doubt: Religion and Politics in the New American Nation by Amanda Porterfield

The Republic Afloat

Law, Honor, and Citizenship in Maritime America

Matthew Taylor Raffety

The University of Chicago Press Chicago and London

matthew taylor raffety is associate professor of history at the University of Redlands. He is a graduate of Williams College and received his PhD from Columbia University. A native of New England, he now resides in Los Angeles. The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2013 by The University of Chicago All rights reserved. Published 2013. Printed in the United States of America 22 21 20 19 18 17 16 15 14 13

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isbn-13: 978-0-226-92400-7 (cloth) isbn-13: 978-0-226-92401-4 (e-book) isbn-10: 0-226-92400-9 (cloth) isbn-10: 0-226-92401-7 (e-book) Library of Congress Cataloging-in-Publication Data Raffety, Matthew Taylor, 1972– The Republic afloat : law, honor, and citizenship in maritime America / Matthew Taylor Raffety. p. — (American beginnings, 1500-1900) Includes bibliographical references and index. isbn 978-0-226-92400-7 (cloth : alkaline paper) — isbn 0-226-92400-9 (cloth : alkaline paper) — isbn 978-0-226-92401-4 (e-book) — isbn 0-226-92401-7 (e-book) 1. Maritime law—United States—History—19th century. 2. Merchant mariners—Legal status, laws, etc.—United States—History—19th century. 3. United States—History—1815–1861. I. Title. II. Series: American beginnings, 1500-1900. KF1104.R34 2012 343.7309’62—dc23 2012020840 This paper meets the requirements of ansi/niso z39.48–1992 (Permanence of Paper). PHOTO CREDITS: Fig. 1 (p. 3): Photo credit: The New York Public Library / Art Resource, NY; Fig. 2 (p. 30): Photo credit: Museum of the City of New York; Fig. 3 (p. 38): Photo courtesy of the Maine State Museum; Fig. 4 (p. 39): Photo credit: Daguerreotype Collection, Prints & Photographs Division, Library of Congress, LC-USZ62-110196; Fig. 5 (p. 83): Photo credit: From the Collections of the Martha’s Vineyard Museum; Fig. 6 (p. 118): Photo credit: Miscellaneous Items in High Demand Collection, Prints & Photographs Division, Library of Congress, LC-USZ62-90731; Fig. 7 (p. 152): Photo credit: Popular Graphic Arts Collection, Prints & Photographs Division, Library of Congress, LC-USZC4-8333; Fig. 8 (p. 179): Photo © Mystic Seaport Collection, Mystic, CT; Fig. 9 (p. 195): Photo courtesy Mystic Seaport Collection, Mystic, CT; Fig. 10 (p. 216): Photo credit: Miscellaneous Items in High Demand Collection, Prints & Photographs Division, Library of Congress, LC-USZ62-90697.

Contents

1. 2. 3. 4.

5. 6.

7. 8.

Introduction: The Lorena, 1849

1

Part One: Law

9

Learning the Ropes: The Legal Structure of Labor at Sea

13

The Education of Samuel Betts: Developing a National Maritime Law

28

Discipline but Not Punish: The Law and Labor Control at Sea, 1790–1861

51

“All Is Violence”: Mutiny and Revolt as Labor Negotiation

73

Part Two: Honor

95

Forecastle Law: Personal Honor and the Defense of Custom at Sea

101

“Good Officers Make Good Men”: The Changing Meanings of Honor on the Quarterdeck

121

Part Three: Citizen

147

Our Man in Liverpool: The Consular Service and American Citizenship

151

“The Very Laws That Preserved Their Liberty”: Seamen, Citizenship, and National Identity

174

v

vi

9.

contents

“We Are Eminently a Maritime People”: Seafarers and the American Character Conclusion: Jack Tar, American Notes Index

197

211 219 267

Ack now ledgments

A

t its core, history is a deeply collaborative field. I am humbled by the generosity and enthusiasm I encountered from fellow scholars, institutions, family, and friends while researching and writing The Republic Afloat. So many contributed so generously of their time and expertise to help me with this project that it would be impossible to repay the debts, intellectual and personal, I have accrued during the years I worked on this book. While I take full responsibilities for any flaws, errors, or omissions, much that is of merit is shared with this community of scholars, colleagues, and friends. A number of institutions provided funding without which this work would not have been possible. The National Endowment for the Humanities granted me the honor and opportunity to work in the archives of Mystic Seaport Museum in Mystic, Connecticut, as a fellow at the Munson Institute. I also want to acknowledge the American Historical Association for a Littleton-Griswold Fellowship that aided me in my research, and Columbia University for providing a Summer Research Fellowship. Thanks are also due to the American Antiquarian Society in Worcester, Massachusetts, and the Sigety Family Foundation, which awarded me a research fellowship. Gonzaga University provided funds to research the consular records at the National Archives in College Park, Maryland. Knox College and the University of Redlands also contributed funding for research trips and opportunities to present portions of the project as it developed. During the research phase, I was assisted by a series of amazing archivists who helped me mine their institutions’ collections. I want to thank the staff and librarians of the American Antiquarian Society—in particular, Caroline Sloat, Marie E. Lamoureux, and Megan Bocian, all of whom went well above and beyond the call to assist me. Additionally, the staff vii

viii

Acknowledgments

and librarians at the New York City and College Park, Maryland, facilities of the National Archives and Records Administration were exceptionally kind, patient, and helpful. I am especially indebted to Richard Gelbke at the New York branch of the NARA who provided his expertise and guidance. The librarians at the University of Redlands’s Armacost Library, particularly Emily Croft, helped with the research on government documents. A special thanks goes to Piper Wynn Severance of the Los Angeles County Museum of Art, who assisted me in researching and securing rights for images on a tight deadline. I have benefited greatly from the help of a number of other scholars, colleagues, and friends who have been good enough to read and/or discuss parts of this project with me, especially Daniel Vickers, Marcus Rediker, Lisa Norling, Myra Glenn, Bill Pencak, George Steckley, Niklas Frykman, Denver Brunsman, Jo Stanley, Patricia Cline Cohen, Eric Foner, Herbert Sloan, Elizabeth Blackmar, Robert McCaughey, Robert Ferguson, John Murrin, Jennifer Fronc, David Ekbladh, Rohit T. Aggarwala, Annie Polland, Ashli White, Zach Schrag, Tim McCarthy, Joshua Waxman, Sarah Kate Gillespie, Kathryn Jay, Lindsay Braddy, Derek Gottlieb, Kevin O’Connor, Eric Cunningham, Kathleen Feeley, Marjorie Hilton, Jim Sandos, Bob Eng, John Glover, Pat Wing, Nicholas Shunda, Sarah Emoto, Kristina Minichiello, Dede Kessler, Glenn Gordinier, John Jensen, Katherine Hermes, John Grider, the other fellows at the 2010 Munson Institute at Mystic Seaport, and a host of others. And additional thanks is extended to Mystic Seaport Press, which published an earlier version of chapter 3 in Pirates, Jack Tar, and Memory: New Directions in American Maritime History, edited by Paul Gilje and William Pencak (Mystic, CT: Mystic Seaport Press, 2007), and has graciously permitted reprinting that work here. Once the manuscript found a home at the University of Chicago Press, the insight and patience of Robert Devens helped keep The Republic Afloat above water during several years of revisions, expansions, and reimagining, and Russell Damien helped shepherd it from fi nal draft to book. Additional thanks go to editor Mary Corrado and copyeditor Susan J. Cohan, whose efforts improved the manuscript greatly. I also owe an enormous debt to the two readers for the press. Paul Gilje and Jeff Bolster showed my work tremendous care and attention, and, while holding me to a very high standard, always did so with clear advice and insightful observations. I am honored by the guidance they provided to help my work develop and progress. Special thanks, fi nally, go to Pamela G. Kelly and L. K. Neck, who read every word so many times and helped in so many ways large and small that there are not words to express my gratitude.

introduction

The Lorena, 1849

The life of every man, if simply and clearly related, would be found to contain a fund of useful and entertaining information; and it is equally true, that the day of every ship would furnish something of interest to relate, could the dry records of the log-book be given in the graphic language of observation and capacity. —James Fenimore Cooper, The Wing-and-Wing 1 In judging of matters committed on the high seas, you will take into view the state of society upon that element, where all is violence. —Sir James Marriott, Bee’s Reports 2

T

hings on the Lorena got off to a rough start. Around noon on April 11, 1849, Captain Joseph Conway set about getting the ship ready to depart its berth at the end of Maiden Lane in lower Manhattan. The captain had just hired a crew and the ink on the ship’s articles, the contract between captain and crew, was not yet dry. According to his testimony, Captain Conway called out to a seaman whose name he did not yet know to ask for assistance. The seaman, Francis Washington, responded angrily, “I have a name—my name is on the Articles.” The argument escalated, and Conway ordered Washington off the ship, saying, “I wouldn’t have such a man in the ship.” Suddenly, the captain found himself surrounded by five or six other crew members who insisted that if Washington was sent off, they would not sail either. Conway did not press the matter and retired to his cabin to fi nish some paperwork before setting sail. 3 With the captain below, the fi rst and second mates attempted to rouse the crew from dinner to weigh anchor and prepare for departure. According to seaman William Robertson, Second Mate John Flood handled the 1

2

introduction

crew harshly, shoving them from where they sat eating and ordering them to the deck. When Flood laid hands on seaman Isaac Benton, Benton exclaimed, “Don’t shove me. I will go along out. I am a man as well as you.” Enraged, Flood grabbed a belaying pin from the rail and struck Benton several times. The other seamen came to their compatriot’s defense and a brawl ensued.4 Flood, however, told a different story in his court deposition. According to his testimony, the seamen had menaced him from the moment he came on board a mere fi fteen minutes before the melee. When he asked the men to attend to their duties, one snapped, “Who the hell are you?” Flood admitted to shoving the man out of the forecastle and ordering him to work. The seamen surrounded the second mate and attacked him from all sides. At that point, Flood admitted that he grabbed the belaying pin, but only to defend himself.5 According to his own account, Captain Conway was in his cabin going over details with the shipping clerk when the ruckus brought him out to the deck, where he found his fi rst and second mates surrounded by a group of seamen clutching belaying pins and sheath knives. Conway strode to the middle of the circle and asked “if they dared to draw a knife.” The seamen insisted “they wouldn’t be struck by any man.” According to the shipping clerk, one seaman declared that “he wouldn’t go in the ship [and] wished he might be struck dead if he did.” First Mate Ebenezer Williams quoted another man who threatened one of the officers, saying “he should like to have the son of the bitch ashore when he could have a fair chance at him to see who was the best man.” After a brief scuffle that left Conway’s face bloodied, the captain went ashore, returned with marshals, and had twelve of his crew arrested and indicted for endeavoring to make a revolt. The Lorena had not left the East River before its journey came to an end.6 It is impossible to say with certainty whose account should be believed. If he told the truth, Benton was but one of countless antebellum seafarers to suffer under irrational or sadistic officers. On the other hand, Mate Williams and Captain Conway had undoubtedly encountered lazy, belligerent, or perhaps even murderous men lurking within their crews in the past, and such experiences would have made even the most sympathetic officers wary. Whatever transpired on the deck of the Lorena that spring afternoon, the fight nevertheless demonstrates how labor and life did—and did not—work at sea. Several crucial issues converged in the violence on the Lorena, and the collapse of the working relationship on board holds much for scholars to examine. For a successful working relationship to develop

The Lorena , 1849

3

Figure 1. The docks along New York’s East River, shown here in 1834, became the site of numerous altercations between seafarers and officers as each group tried to size the other up and set a tone for the voyage to come. It was here that in 1841 the Lorena began her brief, ill-fated journey.

among all parties, the details of labor, personal honor, and both legal and traditional rights had to be renegotiated each time a crew was assembled. On many ships, these negotiations happened more smoothly than on the Lorena, but the issues that brought violence to the Lorena’s decks existed on every American merchant ship. The events that led the crew members of the Lorena into confl ict with their officers and later before a federal judge had a significance that reached far beyond the confi nes of early maritime America. h This book explores the aftermath of violent crimes occurring on American merchant vessels before the Civil War. It examines the legal development of the new nation through the discourses of rights of labor and honor that exploded on the decks of American-flagged vessels, and were then reexamined and reinterpreted by American consuls abroad and the federal courts at home. Seamen and officers, through their actions on American vessels, forced legal and national figures to craft defi nitions of citizenship

4

introduction

and national identity. The way Congress, the federal courts, and US consuls abroad handled these issues marks an important early expression of federal authority. Although no explicit defi nition of national citizenship existed until ratification of the Fourteenth Amendment to the US Constitution in 1868, seafarers learned to seek protection, whether from impressment into the British navy or from the excesses of brutal officers, from their nation. Similarly, officers moved to rely on the law as the wellspring of their authority, increasingly turning to the federal law, rather than their own intrinsic power, as justification for their actions. Thus, oceangoing Americans of all ranks brought issues of American identity and citizenship to the federal government (and particularly to the judiciary) throughout the years before the Civil War. What happened at sea mattered to all involved, but how the courts interpreted the confl icts brought before them had far broader implications. Therefore, this book is as interested in what occurred in court as in what transpired on deck. Many of the critical issues confronted by the early federal judiciary originated in cases involving seafarers. Because these criminal cases were part of the federal courts’ expansive “maritime” jurisdiction, they represent the closest point of intersection between the federal judiciary and the larger developing traditions of Anglo-American jurisprudence.7 To an extent, of course, American seamen and American vessels were merely participants in a larger international maritime culture that shared aspects and practices across the seafaring world. To ignore the international character, not only of the makeup of the crews but of maritime culture writ large, invites charges of American exceptionalism. Indeed, some of what this book depicts would hold true for British- or French- or Spanishflagged merchant ships.8 Still, American vessels existed within the legal and cultural landscape of the United States, and the specific national history shaped the contours of culture and confl ict on US-flagged ships. Most ambitiously, The Republic Afloat is about the process of nationalself defi nition, as shaped and articulated by seafarers and the courts and consuls who heard their claims. Specifically, it explores a series of crimes (including assault, assault with a dangerous weapon, murder, maiming, mayhem, mutiny, revolt, endeavor to make a revolt, confi ning the master, and cruel and unusual punishment) that found venue in the federal courts between 1790 and 1861. Major sources examined include the records of the Federal Circuit and District Courts for New York (the young nation’s largest and most important port), other federal court records, and the pa-

The Lorena , 1849

5

pers from the Boston legal practice of Richard Henry Dana Jr. Additionally, a sampling of consular records has been included to explore incidents brought to these representatives of the United States by seafarers abroad.9 This book adds to the growing understanding of life, work, and, in some cases, death at sea on American merchant vessels before the Civil War. In doing so, it seeks to expand on a young but vibrant literature on maritime America that strives to understand the peculiarities of the nautical world and to repair a historiographical disconnect between workingmen on land and on the sea.10 By examining court cases, this study offers a new understanding of the way we interpret how mariners perceived their lives and worlds. Compared to many types of antebellum workers, seafarers left a rich body of sources behind, but scholars have rarely attended seafarers in court in a comprehensive way. The pleadings, affidavits, and depositions of seamen and officers appearing in federal criminal cases afford valuable opportunities to hear regular “tars” speak to us across time. Many seafarers, such as Richard Henry Dana Jr., kept diaries of their times at sea, and others left a less literary record in the crafts and artifacts that have survived, but scholars need to know more about the day-to-day struggles of most seamen and officers. In contrast to other sources, the courts provide detailed documentation of their workings, often from multiple and competing views. For this reason alone, seamen’s experiences in court are valuable sources.11 The attention paid by the federal courts to maritime matters marked an important assertion of the power of the federal government as a whole, and the judiciary in particular. Although grand constitutional cases like Marbury v. Madison may have established the power and independence of the federal judiciary, it was cases in the lower federal courts, much like the case stemming from the Lorena, that served to legitimate the power of the courts and, by extension, the nation subtly but inexorably, case after case, year after year. The grant of maritime jurisdiction found in the Constitution offered the federal courts a means of expanding their power over the labor and commerce of the growing Republic.12 The courts acted as an epilogue to shipboard drama, reworking and reinterpreting initial confl icts through the legal process. All court proceedings are (at least) twice-told tales, as participants reiterate their competing accounts to defend their own actions before the court.13 The depositions, reports, and testimony tell us a great deal about what happened on the ships. Indeed, the court’s mandate was to discover the truth of what had occurred aboard these vessels. However, the court records tell as much (if not more) about the court itself. Trials are a unique

6

introduction

and distinctive lens through which to view the past. The legal system’s attempts to make sense of and arbitrate the events on ships illustrate another level of reflection on the issues these crimes highlighted. Moreover, these cases represented an early and rich hands-on practice for the federal judiciary. Judges such as Samuel Rossiter Betts in New York, Peleg Sprague in Massachusetts, and Supreme Court Justice Joseph Story used federal maritime and admiralty jurisdiction to articulate and augment the power of the federal courts, and by extension the federal government. The altercations brought before US consuls overseas provide different opportunities and challenges. Often untrained political appointees with little background either in law or in maritime issues, consuls were forced to confront complex questions as representatives of the nation, and as the refuge of last resort for distressed American seafarers abroad. Although they sought whenever possible to refer major questions to courts back home, examining the consular records gives a window into laymen’s approaches to questions of law and citizenship in the absence of outside authority. By focusing primarily on violent criminal offenses, the book seeks to explore important fissures in maritime society. Moments of confl ict offer opportunities to understand the contours of society by highlighting its limits and breaking points. Examining how, when, and why violence was and was not used by men at sea helps us understand how seamen conceived of themselves as individuals, as well as how they defi ned, asserted, and defended their place in the world. Similarly, exploring the acceptability and meaning of the use of force by ships’ officers sheds light on the ways that officers, seamen, and the law understood and constructed life and work on the water. This book tracks a discourse that progressed from the ships through the courts and consuls and into wider debate—and then vice versa, from the larger culture, through the courts, and back to men at sea. The decisions of the court were reported, reworked, and disseminated back to seamen via guidebooks for mariners that explained their rights and limitations. Armed with this new information, seamen and officers reinterpreted it and redeployed it in future confl icts on the decks. h The Republic Afloat is divided into three thematic sections—“Law,” “Honor,” and “Citizen”—which represent a complex and overlapping chronology of the changing ways officers, seamen, and the law understood and

The Lorena , 1849

7

articulated their positions. “Law” examines the changing legal structures that shaped life, labor, and disputes at sea, and the ways in which the development of a federal maritime law aided the expansion and solidification of the new nation’s power over its citizenry. “Honor” centers mainly in the 1830s and 1840s, and explores how extralegal codes of personal, manly honor and craft identity worked at times against, and at other times in concert with, legal changes as the seafarers and officers struggled to maintain control of their own conventions and identities. Finally, “Citizen” focuses on two distinct eras: the period before the War of 1812 and the period from the 1840s to the Civil War. The early period reflects concerns about seafarers’ status around the impressment crisis. The later represents a culmination of the long dialogue among seafarers, courts, consuls, and other writers and critics that sought to bring nuance and coherence to status and rights at sea. By the 1850s, incidents at sea and the legal actions that followed them were inflected with a detailed understanding of the ins and outs of court procedure, and this understanding marked a sophisticated vision of seafarer, nation, the law, and the relationship among them. As happened on the Lorena, shipboard cases often sparked from disputes about the details of work at sea, but expanded from there in scope and significance. The very structure and form of the incident was shaped by the legal traditions of the young Republic. Both the men and officers on the Lorena understood and deployed legal arguments on deck and later in court. Well before the circuit court became the fi nal arbiter, Washington’s assertion of the power of the ship’s articles was at root an appeal to the power of the law. The law provided a forum for men and officers to interpret the chaotic events on board, and the courts sought to comprehend those events and then forge a coherent legal practice out of their aftermath. Similarly, savvy lawyers and seamen sought to invoke lofty claims of personal honor and citizenship in their own defense in early proceedings. Seamen and officers understood themselves as “men” in a manly world throughout, even if their defi nitions of honor were constantly adapting to social changes on land and at sea. When Isaac Benton argued that he was “a man as well as” Second Mate Flood, on the Lorena, he echoed the claims of thousands of seafarers who insisted that they deserved, at minimum, recognition of their identity as individual “men,” in ways that respected their personal honor and the dignity of their craft. Nevertheless, the categories are designed to capture a broad narrative of participants developing an ever-increasing rhetorical and ideological sophistication through the ongoing discourse among seafarers, officers, lawyers, judges, juries, scholars,

8

introduction

guidebook writers, diarists, authors of fiction, cultural critics, and, at its greatest level of abstraction, the nation as a whole. The officers and crew of the Lorena clashed over several issues large and small on that April day in 1849. Most simply, they argued over the details of life and work on the ship. Additionally, Captain Conway and his officers demanded the obedience and respect owed them by law, custom, and their position as gentlemen. For their part, the crewmen demanded that their dignity as men and as Americans be recognized by officers who were their superiors in rank only. The violence on the Lorena, however, resonated far beyond the deck of that ship. Seamen, officers, jurists, consuls, reformers, guidebook writers, and authors all turned to incidents like this as they struggled to defi ne the American character and experience. The Lorena represents one piece of a discourse striving to articulate, for the waters, for the law, and for the nation, the meanings and defi nitions of law, work, honor, and citizenship in the young American Republic.

pa r t 1

Law

A

lthough often depicted as a lawless space, or “radically free,”1 the commercial movement of the Atlantic world was structured around conceiving of ships as bounded by law, even as the seas were open to all.2 The central construct that made transoceanic commerce possible was the notion that authority could somehow go to sea, bounded by maritime law that stood as an ancient and distinct body of law. Although maritime and admiralty law are often treated as unique, with separate origins and courts and idiosyncratic procedures, the important role that oceangoing trade played in the American Republic meant that maritime law was intricately and importantly tied the national project from the beginning. Even before the Revolution, the American colonies were shaped by, and in no small measure a product of, the maritime regulations of the emerging Anglo-Atlantic world. 3 Colonial Americans worked within (and around) a legal framework that imagined the Americas as part of a decidedly maritime empire, and colonial maritime law impacted both colonists and colonies in significant ways.4 The rupture of the Revolution, however, prompted Americans to rethink and reframe maritime law in powerful ways. In short, whatever the Jeffersonian claims about the nation expanding across (terrene) space rather than aging across time,5 it was through the creation and promulgation of maritime law that the United States defi ned itself and its citizens, and began to wield meaningful power at the federal level. As workers, the experiences of seamen tracked closely with those who toiled ashore, and the sea was not immune to the pressures and debates about the economic status and cultural worth of labor and laborers that reverberated throughout the United States between the Revolution and the Civil War. The experience of maritime workers differed in four impor-

10

part one

tant ways, however. First, at sea, seamen had decidedly more leverage than workers ashore, even if making use of it involved dangerous theater. Second, because the law upheld health and wage protections for seamen more assiduously than it did for workers ashore, seamen, it could be argued, enjoyed materially better protections than other workers. Yet, because the justification for the protections centered on seamen’s status as wards, and on their inability to care for themselves, these protections infantilized seamen theoretically, even as they protected them physically and materially. Additionally, the lingering legality of corporal punishment at sea, and the sweeping power of the officers over the men—far beyond what any terrene employer enjoyed over any other group of free laborers—meant seamen were subject to treatments otherwise reserved for slaves and children. Finally, and most important, seafarers’ labor was governed by a different and rapidly developing set of legal rules, different in origin and separate in modern jurisdiction and statutory basis from that which governed labor ashore. Since ancient times, seafaring had been governed by distinct rules, but, when the Constitution granted the new federal government jurisdiction over the seas, it meant that, unlike the vast majority of laborers in the nation, seamen’s workplace would be regulated, and crimes adjudicated, by federal rather than state law. Thus, seafaring and seafarers were, far more than their contemporaries, a focus of national interest and law. Scholars have made much of the radicalism and transnational character of maritime labor and laborers,6 but, whatever the histories and ideologies of seafarers themselves, the law powerfully framed their experiences in an explicitly national way. On the individual level, seafarers were protected by and had their rights and behavior circumscribed within legal structures, and, significantly, this connection occurred on the national level. Seafarers and war veterans were among the fi rst Americans to be able to make a claim for aid to the nation in cases of poor health or indigence.7 By the fi rst decades of the nineteenth century, the ship’s articles, the contract between man and vessel, came printed with text from relevant congressional acts, a unique situation in the antebellum era, in which for many Americans the federal government was far more abstraction than actor in their lives. At sea, because of federal jurisdiction, individual American workers and citizens interacted with federal law in the day-to-day realities of their work. More rarely, when situations went awry on ships, seafarers sought redress and faced punishment from the national government, in the form of circuit and district federal courts at home and through the intercession of US consuls abroad. Seamen, whether they ever appeared in federal court

Law

11

or not, interacted with the nation in ways that had profound implications for both the United States and its individual seafaring citizens. h “Law” examines the changing legal structures that shaped life, labor, and disputes at sea, and the ways in which maritime law aided the expansion and solidification of the power of the new nation over its citizens. Early American thinkers, legislators, and jurists all saw the importance of federal control over the waters, and seafarers lived with the implications of that federal control on the waters. Chapter 1, “Learning the Ropes,” explores the ways that American law framed work and life on and off of US-flagged ships in the early Republic. The sea was fi rst and foremost a work environment. The work of seafarers was not only bounded by the physical realities of the ship, water, and wind but was also organized within a legal structure that framed how work operated at sea. Chapter 2, “The Education of Samuel Betts,” follows the intellectual development of a trio of federal jurists—Samuel Rossiter Betts, Peleg Sprague, and Supreme Court Associate Justice Joseph Story—as they forged the new nation’s maritime law. It chronicles the developments within that law, examining the ways in which the US Congress and jurists formed a maritime law to regulate and bring order to maritime trade critically important to the developing nation’s economy. By extension, these jurists also sought to use the waters to forge a powerful judiciary and, more broadly, a federal government that could deploy its authority over seafarers in order to aid the structural and economic development of the nation. Yet this is not simply a top-down story of judges and legislators providing the legal framework for American seafarers. It is equally the story of how the actions of seamen and officers informed, inspired, reinterpreted, and resisted the legal parameters meted out from above. Congressional acts and judicial rulings tried to frame how a ship should be governed, but both officers and seamen used legal and extralegal means in their negotiations over the specifics of life and labor at sea. Officers and men sought creative ways to assert, where useful, and subvert, where necessary, the legal structures that framed their workplace. The threat of violence, whether legal or extralegal, formed an essential dynamic of shipboard labor on American vessels before the Civil War. By the later antebellum years, both officers and seafarers had developed complex legal arguments for their actions, and

12

part one

understood the importance of framing their behavior on the decks of the ships for the potential “second act” of a courtroom in the future. Chapter 3, “Discipline but Not Punish,” examines the way officers coped with the rapidly changing legal framework that simultaneously reasserted and undermined their authority. It explores how those who commanded the most regulated industry of the antebellum period dealt with situations that, if mishandled, could mean mutiny or murder on the deck or, later, legal trouble down the road.8 Chapter 4, “All Is Violence,” looks from the vantage point of the men before the mast, who had to balance legal requirements against older (and more dangerous) types of resistance against the authority that masters and officers continued to claim was limitless and unchecked. Seamen engaged, resisted, and ultimately helped shape the legal structures that framed their working lives. An important dialogue, from ships to courts to Congress and back in the form of legislation, meant that Americans on the water were at the forefront of the development of the United States.

ch apter one

Learning the Ropes: The Legal Structure of Labor at Sea

The business of a thorough-bred sailor is a special calling, as much a regular trade as a carpenter’s or a lock-smith’s. Indeed, it requires considerably more adroitness, and far more versatility of talent. —Herman Melville, Redburn1

T

he United States took shape on the water. It was on this maritime frontier that the young nation struggled to defi ne itself economically, socially, and internationally. In the years following the 1789 ratification of the Constitution, the United States fi rst made a name for itself within the world economic order through the development of its merchant marine.2 Against the Barbary corsairs and over the issue of impressments of American seamen into the British navy, the country found early cause to assert its sovereignty and the rights of American citizens in the world. Additionally, for many Americans, the sea became not only the way the United States introduced itself to the world but also the way it forged and defi ned its character to itself. America formed much of its identity through its maritime industries. The young nation’s commerce, literature, and sense of self drew heavily upon the sea. Thomas Jefferson noted that nation boasted twenty thousand seafarers by 1791, and estimates put the number of seamen on American-flagged ships at over one hundred thousand during the “golden age of sail,” from the 1830s through the beginning of the Civil War. 3 Additionally, scholars have long acknowledged the importance of shipping and shipbuilding to the political and economic development of the new nation.4 In 1855, the peak year for US shipbuilding, the nation built 2,027 vessels of five gross tons or larger. Before the outbreak of the Civil War in 1861, US ships carried more than one half billion dollars worth of cargo a 13

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year. Although specific numbers cannot be stated for the value of the total US-flagged fleet or the enormous number of Americans who served as seafarers, fishermen, river pilots, longshoremen, or shipwrights or otherwise made their livelihood from the water, it can be argued that only agriculture employed more people than maritime endeavors, and, until the capitalization of railroads exploded in the late antebellum period, only slavery rivaled seafaring and shipbuilding in the extensive use of capital. Beyond economics, Americans were culturally a maritime people long before they formed an independent nation, and the importance of shipping had helped make Philadelphia one of the largest cities in the Englishspeaking world before the Revolution. Even when talk of independence was limited to radicals and drunkards, the importance of maritime industries to the nation was evident. By the time revolution appeared imminent, maritime skill and prospects seemed essential for both winning and sustaining independence for the nascent nation. In 1776, pamphleteer Thomas Paine praised the value of marine industries to an independent America.5 From its fi rst actions after reorganization under the Constitution in 1789, the United States Congress saw the regulation and protection of American vessels and seafarers as central to the national interest. By the 1850s, reformers like Thomas V. Sullivan saw peril to the national character and the nation’s defense in the waning number of Americans among the men who sailed for the US merchant marine. Throughout the antebellum period, many observers regarded maritime industries as critical sources of wealth, security, and independence, as well as an important proving ground for the national character. If seafaring as an industry remained important to the nation as a whole, the day-to-day realities of life at sea were far more prosaic. As countless eyewitness accounts attest, greenhorns’ first days at sea felt as though they had been immersed in an alien, bizarre, and frightening world, fi lled with specialized terminology, tasks, and rituals dramatically different from what they had been accustomed to in their landlubberly lives. Novice seafarers in the early Republic struggled to make sense of their new surroundings and the roles they were asked to play in the social order of the ship. Despite their confusion, rookie seamen needed to learn their new craft quickly. On the fi rst voyage of what would prove an unusually successful career at sea, Charles Tyng recalled being punished for failing to follow the mate’s orders because, in his inexperience, he did not know the nautical terms the mate used. Angered, the mate “roared out like a bull, ‘I tell a boy once to do a thing, beware of the second time,’” and then flung the young man to the deck.6 Treatment such as Tyng received proved a

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strong incentive for greenhorns to be quick studies of the ship’s nomenclature and duties. Much has been written describing the workings of ships in the antebellum era, and both scholars and antiquarian buffs lovingly record the smallest details of knots, names, and other nautical minutiae. For the purposes of this book, however, it is unnecessary to recount the subtleties of shipboard toil, especially because other authors have already done so well.7 Instead, the focus will be on providing an understanding of the ship as a dynamic labor environment, governed by both traditional conventions and legal regulations that are themselves dynamic and fluid. Though numerous factors affected the ways in which crews and officers organized and comported themselves at sea, fi rst and foremost, the ship was a workplace. Indeed, the society that formed both before the mast and in the officers’ quarters took its larger contours from the reality of the ship as a labor environment. It is not surprising, therefore, that so many incidents that ended in federal courts began as disputes at sea about how, when, and under what conditions work would be done. At a theoretical level, the admiralty and maritime laws of the United States governed, in broad terms, the pay, conditions, punishment, and work performed by seafarers on American ships. At the level of the individual vessel, however, an amalgamation of tradition, regulatory law, and the idiosyncratic personalities of officers and crew determined how life and work would transpire. Though it rarely mattered in legal terms, the maritime world was complex, and contained a bevy of specialized trades, small and large, with their own idiosyncratic characteristics. The division of labor differed depending on the vessel and the kind of journey undertaken. Among the carrying trades, the specifics of the vessel’s cargo, purpose, and schedule meant differences, whether subtle or grand, in the way work proceeded at sea. Packet ships plied a regular, scheduled route between two ports and sought speed in exchange for greater freight rates. “Tramp” ships followed opportunities as they came up, and often represented the bottom of the industry, in terms of crew experience, pay, and the quality of vessels. Coasting vessels, river craft, and those that plied the lakes remained tied more closely to their home ports, which impacted the social interactions on board. Specific trades, like that of the fur trade along the Pacific Coast, the fisheries, the Far Eastern spice trade, and, in the late antebellum period, the grand clipper ships all had their own peculiar practices. In the organization and payment of labor, the most dramatic distinctions existed between the carrying trades and the fisheries. The fisher-

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ies, with whaling by far the most important, bore little resemblance to other seafaring trades. Indeed, every regular tar’s nightmare was to fi nd himself accidentally shipped on a whaler. Whaling was dangerous, dirty work (even by maritime standards) that required lengthy and, as whale schools became fished out, ever-longer voyages. Whalemen were (and most commercial fishermen still are) paid by shares of the catch, with their shares determined by rank and experience. They shared, proportionally with their captain, usually at least a partial owner, and any other owners the risks and rewards of the journey. In contrast, by the middle of the eighteenth century, merchant ships paid a set monthly wage to seamen, who bore none of the risk of the journey, even including bankruptcy of the ship’s fi rm.8 In addition to the differences in payment, the way labor was organized on whalers and merchant vessels differed. Hunting whales required a far larger crew than was necessary for mere sailing. Thus, with a surplus of labor except when actively hunting, members of a whaler’s crew did not need the level of sailing skill required elsewhere. Merchant ships carried as small a crew as possible to keep labor costs low. Transatlantic packets tended to have crews of about twenty men, with two to four officers, including the captain, while whaleships had crews many times that of an Atlantic packet and often twice or thrice the number of officers. Additionally, these voyages were crewed by largely separate groups of seafarers. Captains of whalers viewed most merchant seamen as too averse to the dangers of the small-boat work needed during the actual hunt. Although a number of men, particularly New Englanders, did serve in both kinds of vessels, the two groups tended to manifest nothing but disdain for each other. From a legal standpoint, subtle distinctions also existed between fishing and merchant vessels. Merchant vessels needed to be “registered,” while ships engaged in fishing or whaling had to be “enrolled.”9 Although this distinction usually represented little more than a question of nomenclature and taxation, on occasion, it proved legally relevant, as when, after the ban on flogging in 1850, whale captains claimed that as they were not “registered” American vessels, the law did not apply.10 Nevertheless, whether in merchant service or in the fisheries, seamen performed dangerous, difficult, and often brutal and demeaning work. According to calculations by Lloyd’s of London, approximately 8.75 percent of the men in merchant service in the 1850s would perish in an average year. Once he had gone to sea, a man who stayed in that occupation could

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expect, on average, to live fewer than twelve years.11 Diaries kept by seamen suggest that a voyage without a death was a rarity.12 Like workers on land in the same era, seafarers struggled to defend their position within a workplace wracked by dramatic changes, one particularly vulnerable to the vagaries of economic and world events. In the face of these changes and destabilizations, seamen, like other workers, defended the traditional and legal rights of their profession. Unlike terrene workers, however, seamen’s labor environment operated within a distinct legal tradition, and with a direct relationship to the federal government, that meant that their struggle took significantly different forms. In the subtle structures of day-to-day labor, and in the broad strictures imposed by the law, seafarers of all ranks experienced a field undergoing dramatic, dynamic changes between the Revolution and the Civil War. Contrary to the oft-presented picture of a “static” or “traditional” workplace, American vessels underwent profound changes in both the cultural conventions and the legal regulations of the working environment between 1789 and 1861. The practice of labor at sea, the economics of seafaring, and, perhaps most important, changes in legislation and judicial interpretation that sought to govern and order American vessels at sea evolved substantially from the constitutional grant of “maritime” jurisdiction to the federal government until the fl ight of American vessels to foreign “flags of convenience” at the outbreak of the Civil War.13 Workers, dry or wet, faced a fluid labor environment in the fi rst half of the nineteenth century, and like their terrene brethren, seamen fought to check what they perceived as developments that diminished their status and pay. At fi rst glance, it would seem that advances in technology offered owners and captains an opportunity to reorganize seafaring labor, but such was not the case. The desire for speed in the transatlantic packets and the clippers of the Far East spice trade prompted shipbuilders to develop faster, leaner vessels. New vessels heightened the pace, but not the essential structure or rhythm, of shipboard labor. Conversely, as the whale fishery pursued its prey farther and farther from its bases in Massachusetts and Connecticut, the journeys grew longer, but the basic organization and technology of the industry remained largely unchanged.14 The introduction of steam power had the most potential to reorganize maritime labor, as illustrated by the addition of onboard positions like fi reman and engineer. For international transport, most American carriers saw steamships as little more than a novelty before the Civil War. The ships that employed steam power did so as a highly unpredictable adjunct

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to sails, and most American owners and builders eschewed the dangerous and inefficient new technology. It would be up to Nova Scotia native Samuel Cunard and his fi rm, the North American Royal Mail Steam Packet Company, to pioneer Atlantic steam service in 1840, but as his ships flew the Union Jack, they were beyond the purview of American courts.15 Although all major navigable inland waterways have come to be under federal jurisdiction, they were not explicitly included in the Constitution, and the state advocates contested federal control over these waterways well into the nineteenth century.16 Americans did take to steam more readily on inland waterways, however, and Congress singled out steamships for regulation in 1838, marking an early assertion of federal authority to examine and regulate a private endeavor for the general good.17 Despite this important federal attempt to curb the dangers of steamship travel, inland waterways often remained within the jurisdiction of local and state courts, and the broad reach of the federal government over maritime matters was debated throughout the antebellum era.18 Still, despite steam, even as late as 1921, the US merchant marine still boasted almost 1.5 million annual gross tons of cargo propelled by sail, and out of incidents aboard sailing vessels came the most important legal issues.19 On any voyage, a seaman began his journey by signing the ship’s articles, which bound him to that ship for either a set journey or a period of time and dictated the wage he was to be paid. Once properly registered on the articles, the new seaman would head below to take up his berth in the forecastle—a dark, often wet, triangular place below the deck at the bow of the vessel. The forecastle served as the living quarters, mess hall, and cultural center for the regular seamen on the ship, and became the central site of bonding and camaraderie among seafarers.20 It also served—as will be discussed later—as a key site of confl ict between crew members and officers. Labor at sea mixed elements of modern industrial labor with elements of older patterns. Though seafaring had some measure of “clock discipline” dictated by the watch bells, wind and weather dictated the real pace of work. However, even in the doldrums, seamen had much to do. Keeping a wooden ship seaworthy in the face of salt water and ocean weather meant constant repairing, repainting, waterproofi ng, and scrubbing. Officers expected that any man on duty should be working until the bell called the next watch. A typical watch included helping to adjust the sails (a Sisyphean task of constant tinkering if the ship hoped to make good

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time), swabbing decks, repairing damaged rope and sails, and cleaning or repairing anything else that the officers noticed as being less than “shipshape.” Officers believed fi rmly in the old saw about idle hands being the devil’s workplace, and sought to keep men busy, even if that meant resorting to make-work during slack wind, to ensure the men did not have time to collude and grumble. Additionally, because the ego of both captain and crew became enmeshed with their ship, special attention needed to be paid in the days before arriving in port so the ship would cut a respectable figure sailing into the harbor.21 Both contemporary accounts and modern scholarship often treat maritime life and labor as entirely separate from what took place ashore. Seafarers are described as nearly a distinct species,22 and their workplace is treated as exotic, unique, unchanging, and largely disconnected from the developments in “regular” industries. Even the laws that governed the sea since the Middle Ages have stood (and remain) distinct in structure, terminology, history, and practice from other branches of legal practice. Admiralty law, and the broader field of “maritime” law, represented distinct specialties long before English ships began probing the American coast. Still, the sea was not nearly as disconnected from the terrene world as it has seemed, and recently scholars have sought to reconnect maritime life and labor with events ashore.23 Much has been written about labor during the early development of market capitalism in America, yet too little of that literature confronts the maritime setting. As Canadian historian Eric W. Sager notes, “The Sailor was part of the transition to industrial capitalism as capital transformed work and production on land and at sea.”24 Like their counterparts on land, seamen defended not only their legal rights but also specific traditional rights of labor during a period of capital consolidation and rapid technological change.25 According to Jeffrey Bolster, “Late eighteenth and early nineteenth-century seafaring represented a transitional position in the evolution of labor management from traditional and paternalistic forms of bound labor to newer contractual forms of wage labor.”26 On balance, what Bolster says is true; however, labor at sea is complicated, and perhaps not so easily analogous to experiences on land. One of the reasons historians have yet to integrate maritime labor into the larger story may be that it is difficult at fi rst glance to draw links between land and sea. Both contemporary observers and later scholars often treat seamen as though they shared little in common with workers on land. In 1853, Thomas V. Sullivan, a reformer lamenting the scarcity of American-

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born seamen, complained that “the idea seems to be—that sailors are a species of amphibi, with whom you cannot deal on common principles, and that their employments only make them worse and worse.”27 Sullivan’s complaint that maritime workers were seen as far more distinct a group than they really were is still a useful check on historians today. Yet some of the differences between work ashore and work at sea make seamen particularly useful as a vehicle for examining antebellum labor broadly. The struggles over seafaring labor were heightened, pressurized versions of confl icts ashore. Seafaring before the Civil War was a violent and dangerous way to earn a living. Harsh weather, strenuous work, and close quarters tested the limits of even the most even-keeled men at sea. When these hard conditions were coupled with the often brutal, humiliating nature of discipline and a shipboard culture that defi ned a man’s worth in terms of manly honor, it is no surprise that violence became a central feature of life at sea. Most violence at sea occurred with little note; it was merely part and parcel of life on the water. However, the violent acts of both men and officers at sea frequently overstepped the bounds—both legal and traditional—of what would be tolerated. Add to these stressors the fact that a ship out of port was, with rare exceptions, a sealed environment, and the ship becomes a useful test case for the debates over the practice and meanings of labor in the early Republic. Structurally, seafaring work differed considerably from developments on land. Yet it is important to reconnect the maritime setting to the larger story of labor. Work at sea has been compared to many other labor settings as well as to prisons, insane asylums, and military life.28 It is often described as a “premodern” workplace, a medieval anachronism lasting into the industrial age. Yet it is also described as the point of germination of the modern industrial labor order.29 Seamen are most frequently compared with three types of laborers: slaves, proletarian wage laborers, and skilled artisans. Likening seamen to slaves has been a common theme since long before the nineteenth century. Seamen themselves were singularly fond of such comparisons in lamenting their own conditions. Reform-minded writer Richard Henry Dana Jr. noted the similarity when he tersely explained, “Jack is a slave aboard the ship.”30 Another reformer, William Sullivan, went further, commenting that “no one thinks of seamen, who sometimes at sea, and almost always on shore, are more ignorant, miserable, degraded, and friendless than any heathen in any land; or than any slave in the United States.”31 Indeed, seamen did have much in common with enslaved laborers. Neither could quit their jobs (though seamen were

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released at the end of the voyage), and both were often subject to brutal corporal punishment administered by “masters” who had sweeping legal power over them. Some Marxian scholars see the ship as one of the fi rst sites of development of modern industrial labor (and hence look to seamen as one of the earliest loci of resistance to the emerging modern industrial order). 32 The organization and payment of labor at sea did indeed presage the nineteenth-century factory by a hundred years. 33 Seamen not involved in the fisheries received a set wage for labor, much like a factory worker. In some ways, the ship was the ultimate “company town,” with the ship extending credit against wages before the journey began, charging interest on advanced monies while at ports of call, and selling the men supplies at inflated prices while at sea. 34 Since seamen were, strictly speaking, waged labor divorced from the means of production, they perhaps cannot be considered true artisans. Missing from the vision of seamen as pure wage laborers, however, is the extent to which, like laborers on land, seamen worked within a framework of law and tradition that limited the encroachments of market relations. A seaman did not see himself as merely a laborer; being a seaman meant more than earning a wage for sailing a vessel. Seafarers—both officers and regular “tars”—saw themselves as skilled laborers, much like artisans ashore. No one could deny that seafaring was a skilled profession, and compensation was linked to experience. In short, seamen hardly represented a modern industrial workforce. The work of the men before the mast remained skill-intensive, both collectively and individually performed without precise clock discipline. 35 In important ways, the maritime workday resembled farming and artisanal craft production more than most forms of waged labor. According to Thomas V. Sullivan, writing in 1853, work at sea was in stark positive contrast to factory labor. “The ocean is adapted to high intellectual, social, and moral development. First, the employments of the sea demand skill, ingenuity, and intellectual ability, in a far greater degree than the purely mechanical employments on shore.”36 Though Sullivan writes to what he believes will be a skeptical audience, his vehemence in asserting the dignity of maritime labor suggests a stark difference between these workers and a true proletariat. Work at sea, then, shared elements of several labor systems from the land, though matched none of them perfectly. Seamen were not merely “working men who got wet,”37 although they often drifted into and out of the occupation, and shared more with their counterparts on land than has

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often been imagined. It is perhaps less important to fi nd an appropriate analogue than to explore the specifics of work in the maritime setting. Maritime labor looked both forward and backward for its structure. On the one hand, it owed much to older systems of labor based on station or deference. 38 In many ways, a seaman held the same legal status as a minor apprentice. Seamen were “wards”39 of the ship when on board, and of the federal government when ashore, and the ship’s captain, their “master,” held broad powers, but also was responsible for providing health care and meeting other basic needs.40 Aspects of semen’s position seem retrograde even for the nineteenth century. By the 1830s, printing houses churned out accounts of elite young men, like Dana and Melville, who went to sea for adventure but ended up horrified by the brutality of life at sea and the abuse of officers’ unchecked power. On the other hand, maritime labor in some ways greatly presaged the involvement of government—particularly the federal government—in the relationship between labor and management. Basic minimum standards of pay, health care, rations, and other specific and nonwaivable requirements were, by federal statute, mandated on ships. Such requirements did not exist in other work environments until the twentieth century. No one disputed the hazardous nature of seamen’s life. But their unprecedented mobility, physically if not always socially, gave tars an aura of adventure. Unsurprisingly, they became at once objects of envy and of pity. Young boys adored sea tales, ranging from pietistic stories of the sea making men of boys to more prurient fare describing disasters at sea and the murderous confessions of pirates on their way to the gallows. Like any young boy reared in Boston, Benjamin Franklin admitted “a strong inclination for the sea,” in his Autobiography.41 Even boys who grew up in the interior, however, understood that the sea was “a prime testing ground for male hardihood.”42 Fredrick Pease Harlow, who spent his years at sea after the Civil War, explained that no account of the horrors of sea life could have dissuaded him from seeking adventure on the ocean. Even the death of his older brother, who wrote home before the injury that took his life, “Do not let the boys follow the sea. At best it’s nothing but a dog’s life,” could not dissuade Harlow.43 At the same time, an image of the ignorant, abused, childlike seaman in need of aid and redemption became a popular trope for reformers, who proposed projects ranging from temperance houses onshore to “floating libraries” of religious tracts available to seamen.44 The truth probably rested somewhere in between. According to Samuel Eliot Morison, at least in Massachusetts, “the vast majority of seamen had sufficient command of

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the three Rs to post a log, draft a protest, draw up a manifest, and, with a little instruction on shore and shipboard life, fi nd a position at sea.”45 Anecdotal numbers from Gravesend, England, in 1819 suggest that 87 percent of seamen touching at that port could read. While that number seems high, historian Harry Skallerup opines that seafarers were probably in line with national averages on literacy in the pre–Civil War era.46 The records of New York’s federal courts confi rm that a majority of seamen attained at least basic literacy, as most men signed depositions with their name rather than a mark. However, basic education did not shield seamen from the depravations of life at sea or from the excesses of their officers. For their part, officers saw themselves as (and demanded the deference due to) gentlemen rather than merely acting as a factory foremen. While this deference made sense in the hierarchical world of the late colonial era, the continued erosions of the politics of deference, in the egalitarian enthusiasm of the American Revolution, and then in the leveling rhetoric of fi rst Jefferson and then Jackson, made the position of officers precarious despite the very real need for a strong command. Though its meanings shifted, officers continued to demand the respect due gentry, something that caused a mixture of hostility and whimsy from the many well-bred young men who sailed before the mast for adventure and saw the officers as shabby gentlemen indeed. As Melville notes through his fictional alter ego Redburn, “I was not very long in fi nding out, that at sea all officers are Misters, and would take it for an insult if any seaman presumed to omit calling them so. And it is also one of their rights and privileges to be called sir when addressed.”47 The culture aboard seagoing vessels before the Civil War arose from a complex mixture of influences. The men brought divergent backgrounds, education, and experiences with them on board, and the society of the ship was reimagined and renegotiated by the men and officers who went to sea on each journey. Paradoxically, shipboard culture was simultaneously a creatively diverse and a rigidly conformative world. Indeed, one of the major debates in the historiography of seafaring divides those who characterize it as a restrictive social world, marked by strict adherence to traditional roles, and those who see in the seafarer one of history’s great tricksters and transgressors, a crosser of literal and cultural boundaries at all turns, and among the fi rst true citizens of the world. As is often the case, both sides are right, although many of these arguments miss the point. Daniel Vickers has despaired that the character of Jack Tar has been asked to carry so much freight and serve so many historiographic agendas that maritime history in general may be too cacophonous to be a useful

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subject of study.48 While Vickers is right to decry the excesses of those who would use real tars as pawns to further their own scholarly or political agendas, many historians are simply reflecting elements of the complex society at sea, which simultaneously rejected some terrine norms and clung to others.49 Seafarers had opportunity both to transgress and to reify national, racial, and cultural roles. Ships brought together men from all over the world and forced them into a tight society in short order. Seamen were expected to dress, act, and speak like seamen, and the cultural consistencies of shipboard life meant that the men and officers had a language with which to negotiate the specifics of labor and life on a given ship. By the same token, each ship, once it left port, was a world unto itself, and, while these traditional roles and practices might have given those on board a language to understand one another, it also gave them the ability to negotiate the specifics of life, discipline, and work on that unique and specific voyage. Seamen reflected the experience of workers on land during this period in important ways. By defending their legal rights and traditional practices in the face of technological and structural change, seamen, like their drier counterparts, attempted to hold the line against the breakdown of artisanal labor traditions. Indeed, evidence suggests that seamen continued to fight the encroachment of new workplace regulations longer and more successfully than laborers on land.50 Though there are certainly significant differences between the structure of artisanal labor on land and seamen’s experience, important similarities remain. Any officer worthy of respect would have shipped out at least once as a common seaman, just as any master craftsman would have once been an apprentice or journeyman. According to William Sullivan, “No man can properly walk the quarter deck, who has not been drilled before the mast.”51 Of course, young men from merchant or ship-owning families knew their time as a deck hand would only be long enough to give them the requisite skill and experience to move up in the family business. Yet while class origins and family background preordained who was (and who was not) likely to rise out of the forecastle to an officer’s position, the overall structure of class on board American ships was far more fluid than in the British merchant marine.52 In particular, during the early nineteenth century, when the industry expanded faster than skilled men could be found to fi ll officers’ berths, young captains from a variety of backgrounds became commonplace.53 With the rise of the packet shipping lines, particularly in New York, came the growth in the size and scope of shipping concerns and an in-

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creasing rationalization of shipping as contract labor. Nevertheless, this process was far from complete before the Civil War. Until steam radically altered work on board ships well after the Civil War, captains and owners could not break traditional patterns of work or reduce skilled seamen to interchangeable unskilled laborers.54 Although no lasting labor organization for seamen developed until the latter half of the nineteenth century, attempts to readjust labor relations on more than a ship-by-ship basis did occur. General strikes for higher customary wages broke out in New York in 1802 and in Boston in 1837.55 Despite these occasional gestures of industrial organization, the ship remained the most important site for maritime labor protest during the antebellum period, and the only meaningful locus for collective action.56 American ports saw surprisingly little labor protest in the early days of the Republic, considering that often violent resistance to the press-gangs of the British navy was a fi xture before the Revolution throughout the Anglo-Atlantic.57 Even after 1812, only the occasional local strike or riot occurred, and seamen failed to bring about anything like a formal labor structure until the 1870s. The structure of seamen’s society on land precluded coherent labor activism during this period. Nineteenth-century seamen lived in a world of limited economic mobility. Despite the guarantees and protections afforded them under federal law and the ship’s articles, mariners often did not have the freedom to come to terms with captains concerning their employment without pressure or interference. “Crimps”—owners of seamen’s boardinghouses—controlled hiring and extended board, shelter, and liquor on credit to seamen. Once a seaman was indebted, a captain or shipping company bought the debt, and both that debt and the crimp’s fi nder’s fee would be charged against future wages. As a result, seamen rarely received much if any of their pay in ready cash. Because crimps often controlled the labor market, seamen who tried to escape the cyclical debt found themselves unable to secure a berth at all.58 Men were frequently forced to sign on for a voyage to escape prosecution from their creditors, since a seaman could not be sued for a debt of more than one dollar until the end of his voyage.59 Thus, “between 1810 and 1872 conditions were very bad indeed. Seamen were deep in debt to the boarding house owners, to the shipping masters, and to the land sharks who hung around the waterfront.”60 In addition to economic and legal reasons constraining land protest, the lack of a stable seamen’s community made collective action impossible. According to Craig J. Forsyth, “Historically, it had been difficult for

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seamen to organize along the lines of economic self-interest, because as a group seamen are a uniquely transient population.”61 This transience, both physical and occupational, made the ship the only community coherent enough to produce concerted protest. As a result, the most important form of labor activism for seamen before the 1870s involved spontaneous acts by individuals or small groups on individual ships. Some scholars have come to view the sea as a site of constructive anarchy—where the laws and conventions that stifle social creativity break down and become pliable. On the water, they assert, new kinds of social order are possible. As Marcus Rediker and Peter Linebaugh argue, the seamen were part of a broad-based, grassroots resistance to the inroads made by law, commerce, and the nation-state in the creation of the “Atlantic World.”62 In particular, scholars have often focused on pirates, who, they argue, formed communities outside of and in opposition to the gender, economic, moral, and legal norms that were coalescing around them.63 Indeed, it is tempting to use the seaman as a stand-in for “radical,” an important part of the “inarticulate” cadre of unenfranchised people opposed to the coming new world order throughout the age of revolution.64 The most heinous crime at sea was piracy, which was identified as “a crime against all nations,” and thus alone among maritime crimes could be tried in any jurisdiction, regardless of the nationality of ship and crew. Significantly, piracy is at once a violent crime and a crime against property. Pirates’ position as outside the law drew much of the hostility from the increasingly integrated network of nations and corporations in the process of building the “Atlantic world” from the sixteenth century forward. Conversely, it is precisely this image of pirates as outside the growing world order that accounts for their recent scholarly vogue. However, contrary to utopian pirate fantasies and seaman-revolutionary visions popular in academe, and contrary to the boasts of many far more conservative merchant captains who warned their crews that they were a law unto themselves, the law had, from ancient times, sought to rationalize and bring order to life, work, and commerce on the seas. Although admiralty and maritime law remained complex, with competing jurisdictions and little practical oversight, the law nevertheless structured life and work at sea just as much as the traditions and technology of shipping did. Additionally, whatever the desires of the revolutionary few, life and labor at sea functioned precisely because both seamen and officers were invested in the legal and cultural structure that prevailed at sea. For all the images of the lawless oceans, from the colonial era through the early formational years of the American Republic, the law was a guiding and or-

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dering force at sea. In fact, maritime issues made up the bulk of the work for federal courts before the Civil War; it could almost be argued that the system of circuit and district courts created by the Judiciary Act of 1789 was designed to cater to Americans on the water. Indeed, as early American jurists and consuls abroad were quick to discover, it would be they who had to serve not only as the primary arbiters of debates between seamen and their officers but also as the site of construction for defi nitions of citizenship and the parameters of the national identity within the contested space of the ship.

Ch apter Two

The Education of Samuel Betts: Developing a National Maritime Law

There is . . . a peculiar wisdom in giving to the national government a jurisdiction of this sort, which cannot be wielded, except for the general good; and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home. — Joseph Story, Commentaries on the Constitution of the United States1 I am indeed the lord of the world, but the law is the lord of the sea. —Antoninus, Digest of Justinian 2

D

uring the winter of 1827, Samuel Rossiter Betts moved his family from their home in Newburgh, New York, to take up residence on Saint Mark’s Place in Manhattan. President John Quincy Adams had appointed Betts to the post of federal district judge for the Southern District of New York, a post that put this upstate jurist, artillery officer, and congressman in charge of the growing body of maritime cases stemming from New York harbor’s flourishing sea trade. Despite his lack of experience, within a decade, Betts developed into a noted authority on maritime matters and became, along with two Massachusetts-based contemporaries, Federal District Judge Peleg Sprague and Associate Supreme Court Justice Joseph Story, part of the triumvirate of architects of American maritime practice. The maritime neophyte quickly sought to develop expertise in this expanding legal arena and, in the span of a few years, came to be “one of the most learned in that branch of law.”3 Betts seemed an unlikely person to become an important expert in American maritime law. Born to an old Connecticut family in 1786, Betts 28

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grew up on a farm in rural Richmond, Massachusetts, 150 miles from the docks of Boston, and just a shade closer to what would become his home, New York City. By the time of his appointment in 1826, he had put together a varied and impressive résumé. He graduated from Williams College, itself only a decade and a half old, in 1806, before reading law and moving to Monticello, New York, to open his practice. With the outbreak of hostilities in 1812, he volunteered for service and the governor of New York commissioned him as a major. After the war, he served one term in Congress, from 1816 to 1818, representing Orange and Sullivan Counties in New York.4 During his short stint in Washington, he became a political confidant of, and a participant in the early maneuverings of, fellow New York attorney Martin Van Buren.5 At the end of his term, Betts returned to New York State to become the district attorney for Orange County. In 1823, he was elevated to the position of circuit judge for the Supreme Court of New York. Three years later, at the end of 1826, John Quincy Adams appointed him US district judge for the Southern District of New York. The court Betts took over had also grown in caseload and importance during the tenure of William Van Ness, who oversaw the court from the outset of the War of 1812 until his death in 1826.6 The federal courts heard few maritime cases in their earliest years, as jurisdictional struggles continued between state and federal courts over maritime issues.7 However, as the number of American vessels expanded after the War of 1812, the courts, and in particular those for the Southern District of New York, faced a ballooning docket of civil and criminal cases arising from disciplinary disputes on the decks of merchant ships.8 Incidents at sea prompted increasing attention from judges and justices sitting for the nation’s main port cities and led to a rapidly expanding body of case law on questions of maritime discipline and the rights and responsibilities of ships’ officers. Betts took over the New York bench in the midst of a massive expansion in American shipping in general and in the importance of New York as a port in particular.9 The Constitution grants federal jurisdiction “to all cases of admiralty and maritime jurisdiction,”10 but precisely what that meant was still debated by jurors when Betts arrived. Judge Betts’s fi rst task was to bring himself up to speed on the aspects of law peculiar to his new position. He spent his fi rst years on the bench absorbed in two tasks. First, he began to educate himself in the mysterious origins and confusing and overlapping jurisdictions of admiralty and maritime law; second, he began ordering and regulating the practice of admiralty in his own court, eventually promulgating a set of procedures for the practice of admiralty

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Figure 2. Judge Samuel Rossiter Betts (1786–1868) presided over the US District Court for the Southern District of New York for nearly forty-one years, before retiring in 1867. As a federal judge for the nation’s most important port, he became a leading fi gure in maritime law, and a strong proponent of an active judicial engagement over the waters.

that became the envy of and model for federal courts in other major port cities.11 Betts’s education in matters maritime initiated him into one of the oldest and most bewildering branches of law in the Western tradition. Sea commerce—and, thus, by extension, maritime law—is ancient. Early empires saw the need to create legal structures that could reach out across the water to order and facilitate trade. Although some enthusiastic scholars claim a link all the way back to “Rhodesian law” circa 900 BCE, a more direct line links modern practice to tribunals set up in Mediterranean trading centers during the late medieval period.12 Farther north, medieval laws promulgated by the Hanseatic League, and the Laws of Wisbuy, as well as the Code D’Oléron, allegedly brought to England by Richard I in the twelfth century, served as the most direct ancestors of modern mari-

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time practice, coalescing into the English Black Book of Admiralty by the early 1400s.13 Though the details of these codes had little day-to-day relevance for early US seafarers or jurists, the fact that maritime law claimed different origins from English common law is important. Thus, maritime practice in the United States was, even in its prehistory, distinct from the main wellspring of Anglo-American legal tradition. Maritime issues were initially handled in English common law courts; distinct admiralty courts developed from the appointment of the fi rst naval “admirals,” who were granted authority over both naval and civil matters at sea. By the mid-1300s, the lord high admiral oversaw a court of admiralty, which vied with other elements in the English legal system for power across the ensuing centuries.14 While the specific parameters of the Admiralty’s jurisdiction remained an open issue, the scope and volume of its business boomed during England’s development into a maritime power in the sixteenth and seventeenth centuries.15 Growing transatlantic trade made clear the need for a distinct set of procedures, rules, and courts, particularly to deal with the rapidly growing complexity of trade in and with the American colonies. Admiralty was (and is) not synonymous with maritime, and this distinction lies at the core of most of the thorny confusions in the law of the sea for both the United States and elsewhere. The broader maritime is an adjective that describes anything connected to the world of navigable waters. People, places, ships, and commerce can be of a “maritime” nature (or have a maritime “flavor”), legally speaking, without physically being on the water.16 The older, narrower term admiralty describes that body of law within the scope of the English admiralty courts.17 English, and later British, admiralty officials struggled for a wider, more holistically “maritime” scope, but jealousies and power struggles between the Admiralty and other aspects of the English legal system worked against the development of an expansive reach. Although cases involving marine contracts and the business and responsibilities of shipping were clearly “in admiralty,” criminal matters and civil cases of a maritime character but involving actions ashore proved more contentious.18 Nevertheless, the fact that crimes at sea took place outside the specific authority of any local court meant that the Admiralty often stepped in to fi ll the jurisdictional vacuum. In the English and imperial Admiralty, courts took charge of common law crimes like murder, assault, and theft that occurred at sea as well as matters like bottomry19 and maritime contracts and torts, which had legal origins distinct from common law. Thus, even at its most circumscribed, the Admiralty represented the reach of

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the national or imperial authority into a space where local jurisdiction remained absent. However narrowly defi ned, the sea offered the legal space for an expansive articulation of national power over local authority—something that would become all the more important in the American setting in the hands of Betts and his contemporaries. As colonial polities and imperial commerce grew in scope and complexity during the seventeenth century, regulating the maritime activity to, from, and within the Americas became critical to developing an orderly empire. The confusion of colonial practice, and the distance of British admiralty courts back home, meant new structures were needed to rationalize Anglo-American shipping and shipboard life. The Navigation Acts became the most important means of defi ning the law and practice of imperial trade from 1651 to 1849. The increased regulation of trade and the growth of colonial shipping necessitated the expansion of the legal structures available in the colonies to settle maritime disputes. Because, historically, each entity within the English empire handled its maritime legal affairs in idiosyncratic ways, with practices that differed from England to Scotland to Ireland, little pressure existed to make the colonial structures conform to those in England, and many colonies dealt with admiralty matters through whatever local structures had been developed, overlapping admiralty and common law matters in a confused way.20 Beginning in 1697, imperial desire for order in a confused and often legally feral colonial world led to the creation of a series of vice-admiralty courts and officials with a mandate and scope of authority “as wide . . . as the most zealous supporters of English Admiralty ever claimed,” according to one nineteenth-century legal scholar and Betts booster.21 Often, royally appointed colonial governors also received commissions as vice admirals and clamed authority over maritime issues and disputes.22 Vice-admiralty courts, especially when they were overseen by moonlighting governors, represented a dramatic assertion of imperial authority over colonial matters, and, unlike their English counterparts, these courts interpreted their authority broadly, “to every thing done in, upon, or by the sea, or public stream, or fresh waters, ports, rivers, creeks, and places overflown whatsoever, within the ebbing and flowing of the sea, or high water mark, from all fi rst bridges flowing towards the sea.”23 This expansive view brought the authority of these imperial courts deeper into land-based society than their counterparts back in England. Given the relatively light mantle of empire felt by most British North Americans until the second half of the eighteenth century, these courts became the point of intersection with “empire” for many coastal Americans, just as, in a later period,

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the US courts presided over by Betts and his contemporaries would become points of intersection between seafaring Americans and the nation. Generally, Parliament’s authority reached within American societies in limited and incomplete ways, but direct imperial legal authority over maritime issues marked one of the most palpable experiences of empire.24 As the British Empire sought to order itself more tightly in the wake of the expensive colonial wars of the eighteenth century, the vice-admiralty courts became important symbols of despotic imperial authority to colonists growing anxious over the increasing impositions of that authority.25 So resistant were Americans to the juryless vice-admiralty courts that many saw them as representing, in the words of John Adams, “a repeal of the Magna Carta, as far as America is concerned,”26 further arguing that subjection to this court “degraded” Americans “below the Rank of an Englishman.”27 Though hated, the vice admiralty had little direct impact on most colonial American ships and seamen. Richard B. Morris notes that “the colonists were actually more familiar with the maritime practices of English local courts than with the rules enforced by the High Court of Admiralty”28 and colonists promulgated their own maritime statutes in lieu of those of the mother country, sometimes to fi ll in a gap and sometimes to circumvent imperial authority. Major maritime colonies simply regulated their own maritime affairs. The Newfoundland fisheries began holding local admiralty proceedings in 1615, and as early as 1673, Massachusetts operated its own “Admiralty Court,” and had, by 1668, developed its own set of regulations for seafaring, which the colony continued to refi ne throughout the colonial period.29 Because imperial trade was a lifeline to the British American colonies, admiralty matters, and the structures to enforce their regulation (both local and imperial), grew to be important, if contentious, to colonial life and commerce. Specifics varied over time and location, but the revolutionary generation inherited the model of a powerful, expansive maritime authority. During the Revolution, the Continental Congress relied on special state courts to deal with prize and capture cases, 30 but expected that the Congress itself would serve as the site of appeal. States objected, however, and wanted to protect their power. 31 Under the Articles of Confederation, no national judicial system existed, which meant that admiralty matters were handled at the state level. In contrast with earlier admiralty practice, wage cases and other civil litigations devolved to the states to treat as they saw fit. 32 Even in decidedly national matters, the Confederation Congress balked at taking a strong hand. The Articles of Confederation reserved for Con-

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gress the task of “appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining fi nally appeals in all cases of captures,” but Congress opted to use the state courts to hear such matters rather than create a federal system. 33 The result was legal confusion. State courts, maintaining structures from the colonial period, simply promulgated their own rules and practices as they saw fit, borrowing from British and continental practices at their own whim. 34 “It was an unhappy experience,” argue legal scholars Frank L. Marist and Thomas C. Galligan Jr. “Some state courts employed procedures foreign to admiralty. Some states prohibited appeals and refused to comply with decrees of the federal appellate tribunal which reversed state court decisions.”35 Other state jurists before the Constitution resisted the slavish application of British practice on revolutionary principles, such that “any British rule not recognized by the Continental Civilians could be rejected as one nation’s ill-considered innovations, not truly reflective of the laws of nations.”36 Although the application of admiralty laws at the state level proved impractical, it did leave American jurists with a fi rm dedication to “a cosmopolitan law of admiralty,” which could and should borrow freely from international sources. 37 Although it borrowed heavily from Great Britain’s maritime codes in formulating its own, the new nation did not (and perhaps could not) have adopted it but in a patchwork way. The cacophony of Confederation practice prompted federalists to call for maritime matters to be put within the purview of national hands. 38 Interestingly, despite considerable angst at the Constitutional Convention about whether it was appropriate to establish a lower federal judiciary at all, the decision to cede admiralty questions to the federal government was not nearly so contentious. 39 Alexander Hamilton noted in The Federalist 80 that the wisdom of maritime issues being handled at the national level should be obvious to even “the most bigoted idolizers of State authority.”40 The Constitution affirmed federal jurisdiction over maritime matters, but confusion still abounded in the early federal period. As David R. Owen and Michael C. Tolley note, “Because ‘admiralty and maritime law’ is nowhere defi ned in the Constitution nor in any Act of Congress, the federal judges have been required to determine its meaning. All they had to go on was what came before,” the confusing colonial and Confederation patchwork.41 According to legal historian Steven L. Snell, “The founders of the new republic were at heart practical men, who revered experience as much as abstract theory in shaping the structure of the new nation. Maritime

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commerce and adjudication of maritime disputes touched the daily lives of the Framers of the Constitution and the members of the fi rst Congress, and these experiences influenced their thought at least as profoundly as did Montesquieu’s theories on the separation of powers.”42 With the Constitution’s ratification and the passing of the Judiciary Act in 1789, maritime matters became issues for an as yet unformed federal court system.43 One of the justifications put forward for a new Constitution was that it would bring legal and jurisdictional coherence to interstate and international commerce, most of which went by sea.44 Moreover, because of the expansive but haphazard manner in which the British had operated their colonial vice-admiralty courts, by the dawn of the constitutional era, the newly created federal court system faced a confusing patchwork of conflicting and nonauthoritative precedent.45 The Constitution states that the federal judiciary is to oversee “all Cases of admiralty and maritime Jurisdiction,” opting to include the more expansive “maritime” to assure that the clause could not be read down to the more limited “admiralty” as practiced in England.46 However, despite this strong mandate of federal authority, the Judiciary Act of 1789 muddied the jurisdictional waters, granting to the newly created federal district courts jurisdiction over “all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas,” up to a certain level of severity (at which point they became the purview of the circuit courts).47 Congress inserted a provision into the district court’s authority “saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”48 The “saving clause” effectively afforded state courts the right to handle minor maritime torts, and became a major point of debate among early jurists as to the extent or limitation of the reach of federal and state power. Early judges saw this clause as establishing “concurrent jurisdiction” over such matters, although later jurists have interpreted it as intended only to permit the federal courts to use common law, not to invite the state courts to the jurisdictional party.49 Betts’s predecessors on the early federal bench began the arduous process of forging a new, distinctly American admiralty practice out of the confusing aftermath of the colonial and confederation experience. But within this confusion was a tremendous opportunity to establish, assert, and expand the power of the federal judiciary. Judges saw in maritime matters a chance to create a new, powerful, and rational system, specially crafted from British, continental, ancient, and entirely new elements as they saw fit for the new Republic.50 Because the colonial precedent in the

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Americas had been far broader than the purview of admiralty back in the British Isles, and because the Constitution and Judiciary Act gave US courts authority over “maritime” as well as “admiralty” issues, “early American cases traced a steady line of independence from the English limitations upon admiralty jurisdiction.”51 This authority grab marks one of the central legal developments of the early federal judiciary. Judge Eduardo C. Robreno argues that the creation of the lower federal judiciary, which in places like New York and Pennsylvania became “dominated” by maritime cases, was important in “the shaping of law not merely as a means for the adjudication of discrete disputes between private parties, but of the development of law as an instrument of governance.”52 Indeed, the “ragged and often nebulous” quality of maritime jurisdiction and practice afforded an opportunity for the federal courts to strengthen their authority (and supremacy over state courts) out of this confusion and fulfi ll the Madisonian vision that “the judiciary would give force and meaning to the supremacy of national laws over the evils of parochialism.”53 The United States’ judiciary forged its identity in no small measure through the assertion and application of its maritime mandate. Admiralty cases brought forward two key issues for the early Supreme Court: questions of jurisdiction and questions of which legal traditions would serve as authoritative.54 Before Betts, US jurists had grown used to overseeing maritime cases as they saw fit, creating an admixture of precedents and practices little more consistent or coherent than in the preconstitutional era. No regular reporter existed for federal decisions until 1846, which meant that no coherent aggregation of cases existed, except on rare occasions when judges published compendiums of their own decisions.55 Although attempts to compile federal cases actually lagged behind the creation of local and state reporters because of the limits to federal jurisdiction, admiralty treatises ranked among the fi rst efforts to record and report major federal decisions.56 One of the fi rst attempts at any compilation of federal decisions came in 1807 when Judge Richard W. Peters Sr. published his admiralty decisions from the US District Court for Pennsylvania, together with background on the origin of admiralty law and practice going back to the 1200s.57 That Peters organized his decisions thematically around admiralty cases not only attests to the importance of maritime matters for the early federal bench but also marks an early attempt by a US jurist to forge a coherent federal practice both through his rulings and opinions and by promulgating a coherent treatise that would serve to shape federal control over maritime matters.58 By the time Betts came to the federal bench in 1827, the federal judi-

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ciary had begun to secure its control over the waters, and, as an early area of expansion for the federal courts, maritime issues had, by sheer volume, marked a point of expanding power for the federal government. During his tenure, however, new legislation by Congress and the expanding volume of cases offered American jurists—and particularly the trio of Betts, Judge Peleg Sprague, and the most famous American jurist of his era, Supreme Court Associate Justice Joseph Story—an opportunity to use federal maritime authority to expand both the reach and the authority of the US courts.59 All three were staunch supporters of federal authority. Betts matched well the vision of a strong central authority of the president who appointed him; although he accomplished little of what he hoped, John Quincy Adams promoted the strongest conception of the national government until Lincoln.60 Sprague ascended to the bench for the District of Massachusetts after having served as a representative and senator from Maine, and was politically a staunch Whig. Sprague is best known for his decision in The Osprey, which set the rule that a steam vessel needs to give way to a sailing vessel.61 Even this relatively simple “rules of the (riparian) road” case asserted the power of the federal government to articulate the basic rules of seafaring. More generally, that Sprague’s decisions were both so well informed and so influential is particularly amazing, given that, due to poor eyesight, he could read only with great difficulty, and delivered all of his opinions orally.62 Born in the important port town of Marblehead, Massachusetts, and grandson of the clerk of Massachusetts’ colonial viceadmiralty court, Joseph Story was arguably the most important American jurist of his age. Both from his position as an associate justice on the US Supreme court and as a foundational figure in the development of legal education, Story worked actively to defi ne, assert, and enhance the power of the nation throughout his career.63 Both Betts and Sprague published their own treatises on admiralty law, and Betts had still another dedicated to him.64 Story edited, for an American audience, an edition of one of the most important British treatises on maritime matters.65 More broadly, Story’s Commentaries on the Constitution of the United States remains a central text on the authority and practice of the federal legal system. So adamant was Story in his desire to use the maritime jurisdiction to enhance the power of the federal courts (and, more broadly, the federal government as a whole) to regulate and encourage American commerce that his early years on the bench have been seen as a search for “material for the larger juristic and political campaigns he had begun to wage.”66 In particular, his 1815 decision in DeLovio v. Boit 67 used a dispute about whether or not an insurance contract covering a ship

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Figure 3. Maine native Peleg Sprague (1793–1880) served as a congressman and senator before being appointed a federal district judge in 1841. Sprague served as a judge for the US District Court for the District of Massachusetts until 1865. Two volumes of his decisions in maritime cases, published in 1861, influenced maritime jurisprudence for generations. Ironically, Judge Sprague’s decisions survive because his poor vision forced him to deliver his decisions orally and were taken down by his clerks, while many decisions of other antebellum jurists are lost because no consistent system of reporting decisions existed at the time.

constituted a “maritime” dispute for jurisdictional purposes as a means to proffer “a very elaborate opinion on the whole of admiralty jurisdiction.”68 Although the Supreme Court avoided reviewing Story’s circuit court decision and the extent of federal jurisdiction remained debatable until much later, DeLovio marked a dramatic early assertion that Story and his followers would be aggressive in using admiralty issues to enhance federal judicial power. Although the principles espoused in DeLovio would not become wholly accepted until 1871, the war for judicial authority was under way.69 In addition to cases with a maritime “flavor” like DeLovio, the inland waterways also remained contested under the “saving clause” in the Judi-

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ciary Act of 1789. Maritime jurisdiction had already been seen as a useful fulcrum to enhance the power of the federal judiciary, but jurists like Judge Betts and Justice Story argued forcefully (and eventually successfully) for a defi nition that included the vast majority of inland navigable waters, although this point remained in doubt for much of the rise of steam power on rivers and lakes.70 Even as late as 1850, legal scholars including Erastus C. Benedict (himself a Betts protégé) felt compelled to be adamant in the defense of federal control over rivers and lakes—invoking not only legal but biblical precedent in claiming that federal maritime jurisdiction should include all navigable waters.71 So expansive was Story in his vision of federal jurisdiction over maritime issues that one wag famously

Figure 4. Joseph Story (1779–1845) was appointed associate justice of the United States Supreme Court in 1811. On the court, from his perch as professor of law at Harvard, and through his 1833 Commentaries on the Constitution of the United States, Justice Story was arguably the most influential jurist of the nineteenth century. His aggressive defense of an expansive role for the federal government—and in particular the judiciary—rested in part on his understanding of maritime and admiralty jurisdiction, owing partly to his experiences growing up in the port city of Salem, Massachusetts.

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observed, “If a bucket of water were brought into his court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it.”72 Story’s broad defi nition of federal jurisdiction matched a broad view of the power of the federal government more generally. This anti-Jacksonian (and, eventually, Whig) approach saw the judiciary as an opportunity to enhance the power of the federal government as a way of rationalizing and augmenting American commerce.73 In modern terminology, all three of these jurists would be classified as “activist” judges, bent on enhancing the power of the judiciary and willing to draw liberally for justification. Story “linked the expansion of admiralty jurisdiction to a larger campaign to expand the sovereignty and power of the federal government, and especially the federal courts.”74 To do so, he “appealed to history and contemporary politics as authoritative legal sources.”75 One particularly blunt critic of Betts saw him in a “sinister light” and referred to him as “a political Judge,” often “swayed in his judicial action by political consideration.”76 Not all observers objected so strongly, but it was clear that these jurists crafted creative legal justifications to augment the reach of the federal courts. In doing so, they turned the pastiche of incomplete and overlapping precedents that had bewildered their predecessors into an asset as they sought to craft a functionalist and strong national maritime law. This judicial power quest did not go unchallenged. Particularly in their early years on the bench, Betts and his judicial cohort met resistance as questions about the reach of the federal courts came to the forefront. Debates over the reach of “maritime flavor” on inland waterways became an important front in political and philosophical debates over the strength of federal versus state law. According to Lawrence M. Friedman, “Those who . . . took a narrow view of admiralty power . . . wanted to keep federal jurisdiction within narrow limits, and expand the scope and reach of state law.”77 Rising legal stars like Betts and Story, anxious to see the federal government control and rationalize commerce at the national level, saw the expansion of federal control over the waters as essential. Others, like Justice William Johnson, resisted this trend, seeing these legal advancements as an unprecedented and unwarranted encroaching of national power. In 1827, Johnson, a Jefferson appointee suspicious of federal power, warned, “I think it high time to check this silent and stealing progress of the admiralty in acquiring jurisdiction to which it has no pretentions. Unfounded doctrines ought at once to be met and put down.”78 Yet Johnson’s opponents were energetic and hardly “silent.” In addition to the maritime treatises from Betts, Sprague, Story, and Benedict, which all

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asserted the value and legitimacy of an expansive federal jurisdiction, a growing body of case law from these judges was in the process of securing federal control over the waters, national and international, internal and external, fresh and salt.79 On the legislative side, Congress furthered these jurists’ aim to secure federal control over the waters through a series of important national maritime laws that provided the framework out of which the substantive maritime bench law was forged. From the earliest days of the constitutional Republic, Congress sought to order and regulate maritime industries that most members saw as crucial to the economic health of the new nation. These “activist” jurists were able to use new legislation as a starting point to enhance the power of the federal courts over the waters, but they did not universally see the increasing codification of maritime issues as a good thing. Codification robbed judges of power and flexibility to change as needed along with the rapidly changing maritime and commercial environment.80 New legislation limited the latitude of jurists to rule from the bench, even if in the long run it underscored that the federal courts would be the venue for disputes at sea to be worked out. In the fi nal analysis, however, jurists leveraged individual pieces of legislation into stronger authority for the bench over the waters. Congress, the men who sailed, and the courts remained in constant, constructive dialogue over the ordering of seafaring life and labor, but three main legislative moments shaped the direction of that development. In two 1790 acts, Congress required the registration of ships, set the basic terms of governance on American vessels, and defi ned what constituted a crime at sea.81 Although the laws governing both shipping and federal crimes were added to or amended regularly, two additional pieces of legislation significantly impacted labor and discipline at sea, the fi rst in 1835 and the second in 1850. Each of these three legislative moments marked a major pivot within a larger, ongoing development. The fi rst moment defi ned American seafaring and asserted basic federal jurisdiction over the waters. The second, by articulating specific crimes at sea, offered the courts greater entrée into the daily operations of American-flagged vessels. The third moment, by proscribing the most dramatic method of corporal discipline at sea, effectively made the federal courts the ultimate source and arbiter of authority on ships. The courts, in turn, fleshed out each of these legislative moments with an aggressive wave of decisions that used the legislation to insert the federal government—via the courts—ever further into matters of labor and discipline at sea. In essence, each of these three legislative moments

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became a rung that Betts and his cohort climbed toward their goal of an active, overarching federal systemization and rationalization of American waterborne commerce. To understand this development, it is necessary to look at each of these three moments in turn. When it met for the fi rst time in 1789, Congress saw the regulation of American ships and commerce as an important priority. By 1790, two acts outlined the basic regulatory structure of US ships. The fi rst act, passed in April of 1790, did not focus explicitly on matters at sea but defi ned criminal acts that fell within federal jurisdiction, many of which were maritime in nature. In the second act, passed in July of that year, Congress created the basic regulatory framework for American vessels. The act mandated that every vessel be registered or licensed, and required that a contract, the ship’s articles, be signed by all parties of a voyage.82 The two 1790 acts gave basic defi nition to labor at sea and articulated the legal parameters of federal jurisdiction over the waters, but did little to interfere directly with the traditional patterns of labor and discipline at sea. Under the early regulations, the nation ordered, regulated, and oversaw American vessels, and offered recourse to the legal system when a major breakdown occurred on a vessel. The two 1790 acts, one delineating crimes at sea, and the other forming the basic structures of federal regulation, effectively created the relationship between the government and ships and seafarers. These acts became the foundation upon which all later developments were built. Just as these acts framed the parameters of federal regulation at sea, one of the stipulations of the second act, the requirement that each vessel have a signed contract, the ship’s articles, set the basic legal parameters of each individual journey. From the standpoint of seafarers, federal law went to sea symbolically through the ship’s articles, and became the primary way most seamen interacted with the national law. The articles listed the crew and officers, and guaranteed to the seaman that, barring some criminal breach of the articles on his part, the ship would pay that wage.83 Established as a requirement on every United States vessel over fi fty tons by Congress in 1790,84 the articles owed their form and function to earlier British regulations.85 Later, the articles often came printed with several passages from the federal code dealing with the rights and responsibilities of all parties at sea, and delineated specific acts like mutiny as criminal. The articles served as contractual cornerstones between crew and officers, and were regularly invoked by both sides in court to indicate that the contract had been violated and they were within their rights to step

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outside of prescribed roles. The articles represented a legal contract dictating the basic parameters of the labor arrangement between the ship and crew. According to William Sullivan, “The whole engagement between captain and seamen rests on the shipping paper, as a solemn contract. Yet, as this paper is never in the seaman’s possession, they may be ignorant of its meaning, and of the consequences of having signed it. Ignorant or not, there is the contract and they are bound to it.”86 Captains began voyages by reading the articles to the crew, to remind them of their responsibilities and to legitimize the captain’s legal authority.87 But the reading of the articles brought limitation as well as support to the officers’ authority, for by symbolically drawing their strength from a civil law external to the ship, they made themselves beholden to that same law. Masters and shipowners understood the ways in which the articles stayed their hands as well as reinforced their authorities, for they sought, through the courts, to diminish the necessity of a man’s signing the articles. In the early years of the Republic, the federal courts regularly ruled that the absence of a man’s name voided any responsibility he had to the ship, but by 1844 the courts concluded that a man shipping from a foreign port needn’t sign the articles.88 However, a captain could be fi ned twenty dollars for every improperly registered seaman.89 In numerous cases, ranging from disputes over wages to overt violence, seamen tried to use defects in the articles as justification of their actions or as evidence that they were free to quit the ship at their pleasure. These attempts met with varying success, though by the 1840s the courts regularly ruled that missing or faulty articles did not constitute sufficient defense in and of itself.90 The articles demonstrate how maritime law and the courts’ interpretation represented an attempt to continue and extend an older model of the labor relationship, rooted in the master/apprentice or even the lord/vassal tradition of mutual responsibilities, while simultaneously representing a break with the past by placing a written contract (the ship’s articles), required by federal statute, at the center of the labor arrangement and inserting federal power between labor and management. That the text of the articles was, in part, dictated by the central government distinguished maritime labor from the broader growth of contract law in the early nineteenth century.91 Although a written contract stood between worker and employer at sea long before it did in many other settings, the courts sought to protect seamen from provisions that put them at a disadvantage. Shipowners and masters tried to add clauses to the articles further limiting the seamen’s

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rights with respect to health care or when and how leave would be granted. Although the courts regularly ruled that such passages violated some protected rights and were therefore void, the frequency of their appearance suggests that attempts to check the protections offered and increase the responsibilities imposed by the articles upon the men were an ongoing issue.92 “It is the duty of the court to watch over and protect the rights of seamen,” argued the New York Circuit Court in 1835, “and although they should be held strictly to the great and leading objects of their contracts, yet, when minor and less important stipulations are drawn into question, it ought to apply to them very liberal and equitable considerations.”93 In other words, a seaman had to be protected from any unfair provision a captain or owner might add to the articles, whether or not he agreed to it. Thus, to protect his rights, a seaman had to be treated as something less than a regular man, who could be held to whatever contractual obligations he had entered into freely. Neither the ships nor the men could enter into a binding contract on merely any terms. By inserting the government as arbiter between parties of a contract, the ship’s articles moved against the main current of American legal development during the antebellum period. Although seafarers were parties to a written contract before most terrene workers, the force of that contract was mitigated by the oversight of the federal court system to ensure it conformed to traditional and legal norms. At the same time as the courts inserted themselves further as vetters of the articles, state courts increasingly accepted the terms of a contract as inviolate, even if discordant from traditional norms, provided the parties entered into it knowingly.94 Just as the state courts adopted a laissez-faire approach to the growing body of contract law, federal jurists like Betts insisted on a fi rmer involvement in the specifics of seafaring labor, claiming that the government could reshape the details of a contract on behalf of seafarers who could not be trusted as competent to negotiate in their own interest. Whatever the sources of this federal paternalism toward seafarers, this involvement represented a telling acquisition of authority on behalf of the government, bucking the larger trend.95 Reserving the right to revise the articles after the fact was merely one step in a larger imposition of federal control over maritime issues. The need for jurists like Betts to intervene on behalf of seafarers who had agreed to misleading or draconian terms in unfair articles by 1835 illustrated the need for an overhaul, and by the time Betts had been on the bench for eight

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years, Congress came to believe that existing regulations were insufficient to manage the United States’ rapidly growing maritime sector. In particular, the Crimes Act of 1790 seemed woefully inadequate in the face of modern needs and complexities. For three and a half decades, the courts wanted to mediate contentious labor disputes, punish violent outbursts by seamen, and give men protection from the excesses of insane or criminally cruel officers with legislation that lacked precise defi nitions for the kinds of trouble the courts were seeing. Little distinction existed between drastic crimes, such as mutiny (a capital offense), and lesser but still criminal actions, including grumbling, threats, and work stoppages. Some aspects of the original act had been modified over the years, most famously in the Sedition Act of 1798 (which had nothing to do with maritime crimes).96 More important, a spate of revisions designed to combat piracy and the illegal slave trade passed in the late 1810s and early 1820s, but these bills ignored the lesser but more common crimes beneath piracy, fi libustering, slave trading, and mutiny.97 Just as few gradations existed for crimes by seamen, the existing regulations put in place few explicit checks on officers’ authority, leaving jurists little legislative ground to distinguish between harsh but legal masters and the criminally abusive. The maritime situation matched developments ashore in moving from common law to codified defi nitions of crimes. A series of state laws passed in the 1820s and 1830s more clearly defi ned criminal acts and created new gradations of severity among them as “part of a wider movement to reduce the number of capital crimes, reform the penal code, and, if possible, get rid of the death penalty altogether,” but it was at sea that the federal government sought to rationalize the defi nition and punishment of crime.98 To remove the confusions, Congress passed An Act in Amendment of the Acts for the Punishment of Offenses against the United States in 1835. The act provided an omnibus reform and redefi nition of crimes at sea, although some of the changes were fi rst outlined in an earlier, similar Crimes Act of 1825.99 The 1835 law further defi ned what constituted criminal behavior for both seamen and officers, and spurred the growth of cases in federal law.100 It created the category of “confi ning the master,” and more precisely defi ned “revolt” and “endeavor to make a revolt,” which became the most common charges brought against unruly seamen, often replacing the older and more severe “mutiny,” which remained in theory, if not usually in practice, a capital crime. The act also afforded substantial new protections for seamen and defi ned several new crimes that changed

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the way officers disciplined seamen. The act made explicit that officers could not commit “assault,” “assault with a dangerous weapon,” “murder,” or “cruel and unusual punishment” against seamen without risk of prosecution. The clarity brought by reform of criminal codes ashore prompted a decline in the percentage of cases going all the way to trial, and codification reduced the power of judges to “create” law from the bench.101 By contrast, in the hands of federal judges, the 1835 Crimes Act not only precipitated an expansion in the number of cases coming to trial but also afforded judges like Betts a new tool to expand rather than restrict the power of the bench. The 1835 act offered the courts an unprecedented opportunity to insert their authority into the day-to-day governance of the ship, and thus created the opportunity for the federal government to regulate one of the most important arenas of commerce and labor in the early Republic. Many ship’s officers and merchants decried the law. Niles’ Weekly Register warned that the implications were “of great importance to the mercantile interest,” and the results, should the law stand without amendment, would be “very hard upon the commerce of the union.”102 Indeed, rather than reducing the number of cases on the federal docket by defi ning carefully the rights and responsibilities of seafarers of all ranks, the 1835 act instead spurred the growth in the number of cases, as it both created new crimes to bring to the courts and shifted power to the courts from the officers. The explosion of criminal cases against both regular tars and officers in the wake of the 1835 law illustrates the continuing expansion of American maritime trade as well as the growing legal savvy of both officers and seafarers about their rights and legal limitations. It also suggests, however, that the federal legislation became the source of— and the courts the arbiters of—all authority at sea. Interested as jurists were in expanding federal authority, in part with the goal of rationalizing and fostering the continued growth of American commerce, this opportunity to bring order to the conduct of seafarers and to the conducting of the nation’s legal affairs proved a boon to those interested in augmenting federal power. The volume of cases that followed the 1835 law offered opportunities to develop a powerful, rich “bench law” as they fleshed out in practice the new defi nitions the act provided. If the 1835 act was the product of a Congress trying to regulate and bring efficiency to a growing and dynamic aspect of the American economy, the 1850 flogging ban was the result of reformist pressure to make the maritime workplace palatable to changing Victorian sensibilities on land. In addition to the limitations placed on officers by the 1835 act,

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growing public scrutiny of the conditions of sea life led to increasing pressure for officers to move away from corporal punishment into other disciplinary methods.103 In a provision attached to a naval appropriations bill by John T. Hale, a radical reformer and antislavery senator from New Hampshire, Congress outlawed flogging, the traditional mainstay of ship’s discipline, and again forced changes in how officers handled the men in their charge.104 On the surface, the 1850 act seems the most dramatic of the three, as it outlawed the most iconic and evocative punishment at sea: flogging. The act was inspired both by seamen’s rejection of harsh methods of discipline and by changing sentiments ashore, which classed seafarers with other pitiable groups like orphans, slaves, students, apprentices, prisoners, and the insane in an empathetic movement to mitigate the harsh treatment of such “unfortunates.” Indeed, merchant seamen were merely an afterthought; the banning of flogging in both the navy and merchant service was buried within a naval appropriations bill.105 By outlawing the lash with the 1850 act, Congress continued the transition of power from the quarterdeck to the courtroom. Unlike the 1835 legislation, however, it did not create new rights or expand existing ones for seafarers. Instead, it simply removed specific means of punishment from the arsenal of officers.106 The ban on flogging took more than it gave. It further proscribed the actions of officers, thereby continuing the incursion of the courts into the workings of the ship. The 1850 act, however, created no new crimes, nor did it articulate any precise punishment for officers who failed to heed the new regulations. Instead, it substituted the judgment and authority of the courts for that of officers, continuing the shift of power from the masters to the federal government. In effect, the 1850 act merely reinforced that all parties at sea were governed foremost by the nation. Congress asserted the authority of the nation, which was then refi ned and reasserted by the courts. Officers drew their power not from their own mettle or honor, but from the power of the national government. At the same time, regular tars came to see the nation as arbiter, champion, and protector of their rights. Seafarers of all ranks came to regard the nation, not the states, tradition, or themselves, just as Judges Betts and Sprague and Justice Story desired, as the organizing power of American seafaring. Much remains to be written about American maritime life and labor during a period of dramatic expansion and change before the Civil War; so, too, much work needs to be done in the history of maritime law. Legal scholars note the significance of admiralty and maritime jurisdiction in

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expanding the reach and power of the federal judiciary in the early Republic. They pay less attention, though, to the importance of the scores of cases that made up the bulk of the dockets in early federal courts.107 Although perhaps less directly constitutionally significant, these criminal and civil cases arising from incidents at sea were significant in shaping the role of the courts and the contours of defi nition for both the nation and individuals.108 Even scholars like Robertson, Robreno, and Snell who see maritime law as central to the early national project often underemphasize the importance of violent crime at sea. Nevertheless, shipboard crime is far more important than scholars have previously realized. Contending with it forced the courts toward defi nitions of national citizenship, and served as an opportunity to expand the power of the federal government. Robreno comes the closest to acknowledging the significance, noting that both admiralty cases and criminal cases are important illustrations of the early federal judiciary’s attempt to bring coherence to the young nation, yet he fails to focus on criminal cases of a maritime nature, even though they are numerous and explicitly within the oversight of the federal courts. Later scholars seem to ignore what judges like Betts knew to be true. The federal government played an active role in regulating the terms, rules, and conditions of labor on ships. Modern scholars would do well to examine the importance of such laws on the later direction of protective labor legislation in the United States. Scholars have recently noted the nineteenth-century origins of social welfare in Civil War pensions and early women’s charitable organizations. Among these early organizations was the Seamen’s Aid Society, which sought—through the federal government—redress and amelioration of the plight of sailors.109 Maritime law had been central to the question of national identity long before Betts took up his position in New York City. In the colonial period, the vice admiralty had served both as an assertion of a coherent imperial rule and as a symbol of the need for a new nation. Maritime matters were at the heart of the national project at its inception. The struggle for legal control over the waters was an important place where the theories of Enlightenment philosophy and natural rights would be forged into a functioning legal system to order and defi ne those rights. Beginning with little code and a contradictory mélange of colonial and English precedents, American jurists confronted the difficult task of bringing coherence to the law governing disputes on the water at the beginning of the federal period.110 With New York’s Southern District as the most important maritime court, the federal judicial system slowly de-

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veloped an increasingly nuanced set of rules about how American ships were to be governed.111 Betts and his allies on the federal bench forged an active, creative, coherent system of adjudication out of the confusing precedents they inherited. What is more, they brought order and national governance to American commerce and enhanced the power of the federal judiciary. In combination with several important acts of Congress, this bench law forged a rough and shifting consensus regarding how American ships would be governed, laid out the basic parameters of employment, and oversaw how criminal and civil abuses and excesses would be defi ned and handled. Despite the active federalism of these three jurists, they sought to present the expansion of federal control over the waters as, in the words of Steven L. Snell, a “seamless . . . amalgamation of disparate sources reconciled and synthesized as a coherent whole.”112 Even as they used maritime issues to enhance the power of the nation, and in particular the judiciary, they insisted that their maneuverings on the bench were not revolutionary, but rather were in keeping with the traditions of stare decisis and were not, interpretively or functionally, “new.” Whatever their claims, however, something important went on in bench law and the use of statutes that these jurists promoted in the fi rst half of the nineteenth century. The development of a coherent substantive maritime law of the United States marked an important—perhaps the most important—piece in the process of cohering as a modern nation-state before the Civil War fi rmly answered the question of the balance between a strong national and a loose federated government. The judicial and legislative movement toward federal control over the waters, the commerce that moved across it, and the citizens who toiled upon it are central to understanding the antebellum development of the nation. Joseph Story served on the Supreme Court from his appointment in 1811 to his sudden death in 1845, and remains one of the United States’ most influential jurists, due both to the writings and decisions he left behind and to the instrumental role he played in legal education as dean of Harvard University’s law school. In his absence, Sprague and Betts continued on, both serving on the federal bench until the end of the Civil War. In 1865, Peleg Sprague returned to private practice after nineteen years on the federal bench. Samuel Betts presided over the Southern District of New York for another two years before fi nally retiring after a still-unmatched forty-seven years as a federal judge. Together, these three jurists took the nation from the cacophony and confusion of early American admiralty practice to a coherent, national practice, helping build toward the asser-

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tion of federal over state power ratified at the end of their careers by the blood of the Civil War. Their decisions and treatises shaped the congressional regulation of the sea into a strong assertion of national authority. These “activist judges” used not only legislation but also precedents from many nations and traditions as they forged a powerful and expansive federal maritime practice. As the power of the courts and the legislature waxed, that of the men on the quarterdeck waned. Despite the autonomy that officers claimed to govern their ships in their own way, they were subject to an ever-increasing set of rules, regulations, and interpretations that sought to defi ne how, when, and to what end they might correct the seamen under their authority. Yet this development was not a wholly top-down process of invasive and aggressive jurists dictating the parameters of shipboard life. Rather, a multisided negotiation among the courts, officers, and seamen developed, each defending their own advantage and sense of their rights, duties, and privileges, even as the federal government increasingly became the forum for those disputes.

Chapter Three

Discipline but Not Punish: The Law and Labor Control at Sea, 1790–1861

At sea, his authority is necessarily summary, and often absolute, but in proportion to his power is his legal responsibility. —Joseph Blunt, The Shipmaster’s Assistant and Commercial Digest 1 For liability purposes, it is the sea that will kill you. —Pirate Captain, The Simpsons 2

W

hatever literary images of power-mad captains and brutal “bucko mates” might suggest, officers on American merchant vessels had an authority problem in the early Republic. In addition to often “saucy” and sometimes mutinous men, officers faced growing legislative and judicial limits on their authority from the creation of the federal judiciary to the beginning of the Civil War. Additionally, as white male equality became the vogue of the Jacksonian era, officers found themselves forced to reframe the justification of their authority to suit the democratic times. Rather than asserting their own personal “mastery” as powerful, manly gentlemen, they instead came to rely more on the law for the legitimization of their authority. Still, even as officers turned to the law to assert their authority, they felt the law often undermined as much as it supported their position. As they found themselves increasingly proscribed by a growing body of regulation and convention, officers responded both by arguing against outside legal encroachment upon their authority and by adapting their methods of labor control to conform not only to the letter of the law but also to the spirit of their sense of themselves as the wellspring of all authority at sea. At the same time, the judicial system sought to bring order and coherence to the application of the law at sea. The resulting dialogue among 51

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seafarers, their officers, and the courts shaped the rights of all on board and marked an early incursion by the federal government into labor law. Most authors concerned with discipline and labor control at sea have quite reasonably focused primarily on what occurred on the ships themselves. In particular, flogging and other forms of corporal punishment were topics of interest among nineteenth-century reformers and remain important to twenty-fi rst-century historians. 3 But what happened on the decks of American vessels before the Civil War was shaped by an expanding legal discourse that served to both legitimate and proscribe the ability of officers to “correct” the men before the mast. Officers, the courts, consuls, and “outside” observers ranging from guidebook writers to anti– corporal punishment reformers worked to defi ne the legal status of discipline at sea. In addition to articulating the legality or criminality of a given form of punishment, these writers, jurors, and the officers and seamen on American ships struggled with complex and competing conceptions of the very nature and source of shipboard officers’ authority. Although the captain of a merchant vessel believed (and regularly reminded his crew) that he ruled the decks by the strength of his will and, when necessary, the searing sting of the lash, the law both reinforced and limited that authority. Physical force always undergirded discipline and social order at sea, even if actually resorting to that force was always a risky proposition. An officer’s right to govern rested directly upon his power to enforce his command physically. Officers used force, whether explicit or threatened, to motivate and intimidate the crew into submitting to their authority. Just as officers understood that the threat of violent mutiny lay just beneath any confl ict with the crew, seamen understood that all officers, even those of the most gentle temperaments, backed up their authority with the right to resort to physical force when the situation demanded. However, from the beginning of the constitutional era (and, indeed, even before), legal restraints governed how and when ships’ officers could punish. Officers’ use of force in labor control at sea was further complicated because each rank had specific rights and responsibilities in both law and customary practice. The legality and acceptability of force differed depending on an officer’s rank. While the captain bore ultimate legal responsibility for all punishment on board his vessel, the lesser officers frequently handled the actual application of punishment. The lash in the hands of the ship’s master meant something different from what it meant in the hands of a second mate, and a casual angry blow from the mate might have re-

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percussions, whether among the men or in court, different from a similar strike from the captain. Violence was central to forming and maintaining the structure of life at sea. Regular seamen policed their own forecastle society with physical force and, in exceptional but dramatic cases, resorted to violence (or the threat of it) to stay the hand of excessive or brutal officers. Like the men’s, officers’ actions ranged from subtle to brutal and from legal to illegal. Unlike the men, however, officers enjoyed, in both the letter and the application of the law, substantial leeway in how and when they might resort to force. Presiding over the District Court for South Carolina from 1780 to 1801, Judge Thomas Bee borrowed from English jurist Sir James Marriott to explain the proper role of violence at sea. Marriott had written: The preservation of ships and lives depends often upon some act of severe, but necessary, discipline. These scenes of violence present no very amicable picture of human nature; but such violence is frequently justifiable, sometimes absolutely necessary. . . . In charge of the lives and properties of other men, contending with the most ferocious, upon an ungovernable element, a commander is placed every moment in danger of the loss of character and life. A ship is a little government, compressed into a narrow compass, in which there can be no hope of security for any man on board without a rapid and strong exertion of absolute power placed in one man.4

In Marriott’s view, violence represented a disagreeable but wholly necessary part of the governance of labor at sea. Bee and other American jurists concurred, noting that, both legally and practically, the organization and control of maritime labor differed in important ways from similar situations ashore. Maritime labor was legally distinct because it possessed a different ancestry from the “laws of master and servant” on land.5 Marriott also noted that the relationship between officers of a ship and its crew differed from land labor for practical as well as legal reasons. First, he argued that the danger inherent in seafaring required a heightened authority to be vested in the master and his officers to ensure safety. Second, he commented upon the character of seamen, noting that force may indeed be the only way to bring order to the “ungovernable element” that sailed before the mast. As late as 1800, officers found in the courts a strong advocate for an expansive view of their authority. Bee and other early federal jurists believed

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that the character of seamen and the harsh realities of seafaring meant officers needed a free hand to command. However, beginning after 1800 and increasingly after passage of the 1835 law, both jurists and Congress backed away from this earlier, more expansive view, much to the chagrin of officers. As Daniel Vickers notes, the ship’s master represented the “hub of the maritime law.”6 In the 1860s just as in the colonial era, the fi rst operating premise at sea remained that the captain’s word was law. Yet throughout the antebellum period, both Congress and the federal courts impinged upon the authority of ships’ officers with each new regulation and the rulings that followed to interpret it. Seeking to bring a new federal coherence to labor relations at sea, the courts circumscribed the officers’ authority within a tightening circle of legal limitations, even as they sought to clarify and reassert the officers’ power. While seamen frequently proved willing to step outside the bounds of law to defend even their legal rights through desertion, slowdowns, or by threatening or participating in revolt, officers sought to preserve their authority without running afoul of an ever more complex and restricting set of rules. Officers challenged and tested the courts’ interpretations, changing the way they approached discipline and control in order to stay within the new rules presented by Congress and interpreted by the federal courts. The constructive dialogue between the practice of discipline at sea and the law that interpreted that practice determines how, when, and why officers used force against seamen. Though force, whether implied or explicit, remained the bedrock of shipboard authority in the years before the Civil War, officers grew more mindful of the law and adjusted their approach, developing an increasingly nuanced, careful, and subtle approach to securing the necessary control over seamen. Officers moved from direct forms of punishment, like the lash, to more indirect (though hardly more pleasant) forms of punishment, including harsh, dangerous, and taxing work assignments and deprivation of food or rest. Additionally, officers opted to rely on fi nancial punishments (such as withholding the wages of upstart seamen) when possible, to avoid the legal hazards associated with physical discipline. Between 1790 and 1861, officers found increasing resistance to their use of corporal punishment and other means of physical force in their attempts to govern the crew. From the earliest federal statutes on the subject, Congress showed a desire to limit and regulate the behavior of officers on American vessels for the protection of seamen. In two 1790 acts, Congress fi rst laid out the basics of ship governance and registration, and

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articulated some core protections to seamen and described criminal penalties for both hands and officers who went beyond their legal authority.7 Even Judge Bee himself warned, in a decision from 1790, that “the act of congress for the regulation of merchant seamen must be strictly followed, it being penal.”8 The legislature clarified the rules for ships in 1803, further curtailing officers’ authority.9 In 1835, a substantial revision of these statutes was necessary to bring greater order to a shipping industry that was rapidly expanding as well as to the growing list of cases from ships heard in federal courts. Though this new law held additional restrictions for both seamen and their officers, it was the officers who found their range of action most reduced.10 The 1835 act meant that officers could (and did) face legal repercussions if they punished in haste or to excess. But what would constitute “excess”? Both officers and the courts sought to parse the new defi nitions in the years that followed. Six years later, attorney and guidebook author George Curtis urged officers to exercise care in the application of physical chastisement, even while he asserted the right of officers to resort to it. In A Treatise on the Rights and Duties of Merchant Seamen, Curtis explained, “In our law it is well settled that moderate corporal punishment may be infl icted.”11 Curtis also warned his reader that while “no particular mode or instrument of punishment is prescribed by maritime law,” and that considerable “latitude of discretion is here also confided to the master,” care needed to be taken if officers wanted not to run afoul of the law.12 Finally, in 1850, after a sustained campaign by reformers, a new federal act criminalized flogging, the traditional linchpin of a captain’s power at sea for both commercial and military vessels.13 Though use of the lash had been on the wane for years before 1850, its official ban marked an important change in the organization of authority at sea. Still, masters did not give up their right to flog lightly. Even after the 1850 law, floggings continued on ships governed by stubborn or ignorant masters. Whalers, in particular, claimed that the ships in the fisheries should be exempted because they were not “vessels of commerce,” the terminology used in the 1850 act. Additionally, whalers insisted that flogging remained necessary because whalemen, paid in shares, could not be controlled with threats of lost wages on unsuccessful journeys.14 Actually, the whale fishery long sought latitude to punish more aggressively than its commercial compatriots. Whaleship masters and owners had previously claimed (unsuccessfully) that, because they were “licensed” rather than “registered,” the 1835 law did not apply to them either.15 Although flogging was outlawed, the courts were quick to note that

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the proscription barred only flogging and left other forms of corporal punishment intact. Supreme Court Justice Benjamin Curtis noted that “the [1850] law does not abolish all corporal punishment. It is plainly restricted to one particular mode of infl icting corporal punishment.”16 In fact, no act wholly barred a ship’s officers from using corporal punishment until 1915.17 Moreover, from the beginning, the 1850 act had limited teeth. Though it outlawed the lash, it created no new criminal acts. A criminal charge against an officer who used the banned punishment had to be formed under the 1835 law for “cruel and unusual punishment” and/or “assault with a deadly weapon.”18 However, with the most iconic, traditional, and loathsome punishment forbidden, and no clear defi nition as to what else might be considered legal corporal punishment and what could be construed as an assault, officers found themselves uncertain about precisely how they could and could not punish the men in their charge. The creation of new legal protections meant that seamen on merchant vessels enjoyed broader rights at sea, and an expanding, relatively efficient federal legal system where they might seek redress for shipboard outrages once they returned to shore. Nevertheless, the balance of authority continued to rest squarely with the officers. Judges remained mindful that too much ex post facto interference from the courts could undercut the authority of captains and prove dangerous or even deadly at sea. Jurists were careful to insist that, for safety considerations alone, officers needed broad leeway to deal with miscreants before the mast. Though their authority remained substantial, with each act the regulatory thicket surrounding officers expanded. As a result, a considerable literature developed to help both officers and seamen make sense of the tangle of rights and responsibilities at sea. In touting his Merchant’s and Shipmaster’s Guide, Frederic Sawyer noted that shipmasters, “more than any other class [of employer], have been made the subjects of special enactments. To very many of their acts and omissions, which, in themselves considered, are light and unimportant, very grave penalties have been affi xed.”19 Moreover, as seamen became more versed in the law, and as a growing number of attorneys like Boston’s sea-diarist-turned-attorney Richard Henry Dana Jr. saw profit in representing seamen’s claims, officers found their ability to enforce control increasingly circumscribed by the threat of legal action once the ship returned home. Officers complained bitterly about the proliferation of unscrupulous “sea-lawyers,” nuisances who would try to profit from the new legal structures.20 Clipper-captainturned-historian Arthur H. Clark expressed the frustration officers had

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with the dockside lawyers who “did their utmost to degrade an honorable profession by calling themselves lawyers,” noting that, especially in San Francisco and New York, these sea lawyers would prey on naïve tars by promising them riches if they would swear (whether falsely or not) against their officers.21 Despite legislative setbacks, the mounting resistance of seamen to corporal punishment, increasing willingness of seamen to bring charges or a claim for damages against their officers once ashore, and a growing class of attorneys eager to take such cases, officers maintained broad powers at sea throughout the antebellum period. Officers stressed the need to have violent or even deadly force at their command as a way of keeping order among desperate and dangerous men. In his guide Sea Life, William Sullivan took on the role of “bad captain” to explain the mind-set of the worst sort of master: “Some captains talk of treating sailors as though they are human beings and as though they were capable of being won by kindness and gentleness. I know better; the worse they are treated, the better they obey.”22 Though Sullivan described the attitude of a fictional captain, he lamented that such ideas were all too common on the quarterdeck. Officers insisted that the only thing the undesirables before the mast would understand was the lash. Just how much violent punishment officers doled out at sea, however, remains debatable. Most accounts, often modeled after Dana’s narrative of his own youthful journey to the California coast, contain at least one story of the captain resorting to the lash, whether from brutality or necessity, and almost all describe menace (or worse) coming from the lesser officers. Melville makes the savagery of the lash central in several of his nautical tales, including Billy Budd, Benito Cereno, and White Jacket.23 Nevertheless, the men increasingly worked to block floggings, commenting frequently in court testimony that, at least in the merchant service, floggings were rare, and that masters who punished in this way were to be avoided. In a deposition taken by Dana, one mate admitted that flogging “is regarded” as a sign of “bad usage, and a bad ship.”24 The lash’s primary value was not in its actual use (though many captains wore out their rope ends on the backs of the men) but rather as a fearsome last resort that remained always in the back of men’s minds. Even captains who balked at brutality for ethical reasons, or feared the effect a flogging would have on morale, relied to some measure on the security that the idea of the lash provided. However, the lash by no means represented the only form of physical punishment available to officers. With flogging on the wane on merchant

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ships even before 1850, captains and other officers resorted to a variety of punishments to fi ll the void. A crewman who drew the ire of his officers still risked a number of strenuous punishments, including being placed in irons; confi ned belowdecks in cramped and dirty conditions; or “bound up,” or tied to the rigging, often suspended painfully. Seaman Brister Lewis described receiving such punishment on board the J. U. Brookman in 1859: “I was then suspended by my wrists with my toes just touching the deck. I was kept there about half an hour.” Lewis was then transferred to the hold, where, resting on a “cargo of oats,” he remained four days, manacled in a space that “would not permit me to sit up straight. I had to lie down most of the time.”25 Lewis’s captain, Charles Brookman, was found not guilty for his punishment of Lewis, who had bitten him in a scuffle before being bound up. Increasingly constrained by the 1835 law, masters turned to harder-to-document punishments that could be construed in court, if necessary, as nothing more than the mundane regular work of the ship. Officers also punished seamen by withholding food or water. Although under statutorily defi ned limits such punishment was illegal, on many ships officers gave the men a choice much like that succinctly put to a seaman on board the L&W Armstrong in 1849. When one of the crew indicated that “he had a good mind to knock off duty & not do another hand’s stroke aboard her. Capt told him as soon as he knocked off duty he would have to knock off eating.”26 Finally, officers frequently turned “normal” shipboard tasks into punishments, extending the time men were to be on duty or forcing them to perform arduous and dangerous tasks that nevertheless could be construed as within the normal work of the ship. Shipmasters insisted not only that they needed a free hand to punish, but also that legal interference endangered their ability to control even the more routine aspects of life and work on their ships. In a revolt case from 1842, the defense attorney, seeking to prove that the excessive punishment infl icted had made his clients’ resistance necessary, asked Captain Charles Stoddard if it seemed an appropriate punishment for sleeping while on watch to be ordered aloft to drain water caught in the mainsail without assistance. Although a necessary task, draining the sail was difficult and dangerous, particularly for one man. Stoddard answered, summing up the attitude of many a master, when he explained that “it depends very much on the offence. . . . Different captains have different ways of punishment.”27 Even as he asserted the captain’s authority to punish as he saw fit, Stoddard also reflected the rising trend of using or extending regular onerous duties as a part of the regular working of the ship. After 1835, masters sought legal cover by turning

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to punishments that could not, in and of themselves, meet the legal definition of “cruel and unusual.” After all, if, as the courts tended to assert, the punishment had to be both cruel and unusual in order to be criminal, harsh but decidedly regular labors seemed an ideal way to punish without running afoul of the law. If anything, the desire to rely on “regular” duties aggressively applied increased after the passage of the 1850 act. In 1858, Captain Ferdinand Crocker of the Esther Francis used work as punishment for seamen he saw as unmotivated. According to the criminal complaint against him, Crocker “did maliciously force, oblige, and compel [seaman William Brown] to work continuously for an unreasonable time, to wit, the space of four consecutive hours,” even though Brown had complained of illness and that later Crocker had “neglected to supply him with proper nourishment and medicine.”28 Increasingly bound by the constraints of the 1835 and 1850 laws, masters turned to harder-to-document punishments that could be construed in court, if necessary, as nothing more than the mundane regular work of the ship. The law presented confusing and often contradictory rules to both officers and seamen. Seamen had to follow officers’ orders without question, but could be found liable if they participated under orders in some illegal activities.29 Additionally, seamen could be charged with revolt or mutiny for disobeying even bizarre, dangerous, or counterproductive orders, leading to the saying in the forecastle “Obey orders, though you break owners,”30 as well as to the occasional harrowing tale of a crew held hostage to a drunken or insane captain, not unlike Melville’s famous Ahab. 31 The officers (and masters in particular) were liable under the law if they endangered the property of the ship and its cargo by being lax disciplinarians, but risked both civil and criminal prosecution if they went too far in disciplining the crew. Captains bore fi nal responsibility for the outcome of a voyage, and their actions and inactions could be scrutinized for wrongdoing by the courts. 32 Precisely because the line between acceptable and unacceptable punishment was both blurry and shifting, many argued that officers should have the benefit of the doubt in close cases. Judge Bee explained that the officers needed leeway in both the scope and method of infl icting punishment. “Moderate correction on board a ship is justifiable,” insisted Bee, including the use of the fist, “but deadly weapons, such as a cutlass should only be used when a mutiny exists, or is threatened.”33 According to guidebook writer I. R. Butts, excessive punishment made a captain liable for both civil and criminal penalties, “but where punishment is merited, it

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must be clearly excessive to entitle the seaman to damages. It cannot be expected that masters can mete out with nice discrimination the exact amount of punishment which each case requires.”34 Nevertheless, as Vickers notes, even when they sought to bolster the master’s position relative to the men, jurists “felt obliged to spill a great deal of ink justifying” what had become a “rather antiquated degree of personal authority.”35 Both judges and juries granted officers considerable latitude in prosecutions for abuse of seamen. Based on a survey of verdicts in federal courts in New York from 1835 to 1861, officers were much less likely to be convicted for crimes against the men than the men were for crimes against their officers. In the Circuit Court for New York, which heard the most severe cases, in thirty-one cases brought against officers in which the court recorded an outcome, the officer faced conviction only 16 percent of the time. 36 In the lower district court, of twenty-seven cases with known officer defendants, the court records only three convictions. In contrast, seamen faced conviction at least 53 percent of the time in district court. 37 Though some attorneys defending officers from charges of abuse tried to claim that “the officers of the ship are clothed, not merely with a civil, but with a military power, over the seamen on board,”38 the courts supported a more narrow defi nition of officers’ power. Of course, distinctions between corrective and judicial punishment are impossible to make in any clear way, and most officers paid little attention to such distinctions. Only when brought to court would an officer have to justify the punishment as corrective. In an 1849 case, Captain Nathan S. Simmons of the whaleship St. Peter was charged with abusing members of his crew because of a three-day interval between their alleged mutiny and his meting out of punishment with the lash. Though he was within his rights to use the lash, argued the US attorney, Captain Simmons had applied an illegal punishment by waiting so long to do so. 39 Force was all the more complicated when used by officers precisely because the line between legal and illegal often blurred in the heat of the moment. Particularly in ordering men to perform punitive duties, or in the application of humiliating but not directly corporal punishments (such as shaving the head or stripping a man of warm clothes), officers found ways to let the weather or the ship perform the corporal punishment to insulate themselves from liability. The end of the lash did not mean the end of brutal treatment of seamen, since many of these indirect punishments could be even more painful and dangerous than a flogging. In an 1854 civil proceeding in which Dana appeared for the defense, Captain Levi Hotchkiss of the ship Harvard was accused of excessive punishment against a

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sixteen-year-old cabin boy, Stephen Whatley. Whatley, who took his fi rst (and, in all likelihood, last) voyage on the Harvard, described his treatment at the hands of Hotchkiss: During the whole of said voyage the said Master wantonly, & maliciously did all that he could to annoy your Lib[ellant] and make him uncomfortable & wretched on board, that he kept him at the wheel much longer than the regular and accustomed time—that he kept him aloft much more than the necessities of the ship required, to wit, for hours and hours together when there was no necessity of his being aloft, and that so keeping him at the wheel and aloft unreasonably & especially when coming on the coast the Lib. was frozen in hands and feet, and suffered greatly in his health, so that he is now disabled for duty, and he fears permanently injured in his health.40

Fearing either criminal or civil prosecution, officers like Hotchkiss sought to avoid legal problems by using tasks and duties that, though onerous, were indisputably a part of regular life at sea as a way to let work and weather do their punishing for them. Though, as in the case of poor Whatley, an officer could be held responsible for permanent injury or unjust cruelty from excessive duties and deprivations, these forms of punishment found increasing vogue as seamen became more litigious about punishment. Even when officers were brought to trial, the ambiguity of such punishments made conviction difficult. Conviction became all the harder when the courts ruled that the punishment had to both cruel and unusual to justify the indictment.41 The punishment must be not only brutal but performed in a manner not commonly found at sea. Thus, use of the lash could be excessive and illegal as an “assault,” but could never be considered an “unusual” punishment at sea. The number of officers charged with “cruel and unusual punishment,” which normally meant deprivation and/or overwork as opposed to “assault,” suggests this trend.42 Presiding over a session of the circuit court in the District of Rhode Island in 1853, Justice Curtis noted that the 1835 statute protecting seamen from “cruel and unusual punishment” “more frequently perhaps than any other criminal law, comes under the notice of the courts of the United States.”43 In one such case, Paul Oliver, master of the Tybex, was found guilty of cruel and unusual punishment after forcing seaman John Gaspar to strip down and go aloft in the rigging as punishment.44 Though Oliver furthered Gaspar’s punishment with an oldfashioned beating (which led to a conviction for assault), “passive” pun-

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ishments like Gaspar’s frigid trip aloft became more popular as the legal restraints on more straightforward corporal punishment became more complex. Whereas naval officers were invested with judicial authority as was affirmed in the 1843 Somers case, the federal courts ruled that officers on merchant ships had parental but not judicial authority over the men, though even this parental metaphor had limits. Judges were ambivalent about ascribing parental authority in the 1820s, but by the 1840s, comparing merchant commanders to fathers, master craftsmen, or schoolmasters was, with caveats, common. As one case from 1846 put it, “A seaman stands in relation to the master of a vessel as a child to the parent, or an apprentice to the master, so far as regards obedient and respectful deportment, and is punishable corporally for a deportment of language not obedient or respectful.”45 Officers had legal authority to “correct” the men, but not to exact justice or “punish” them for misdeeds.46 As early as 1802, British jurist Charles Abbott argued that, at least for British ships, the ship’s master had “no judicial authority to punish.”47 A court case from 1825 noted that corporal punishment had to be executed “in a moderate and reasonable manner,” but said little as to what constituted “reasonable.”48 Joseph Blunt’s 1857 guide for shipmasters tried to parse these distinctions, explaining that “when the punishment is for past offences, the reference to them must be clear and distinct. This punishment, however, is not judicial, but parental in its character. It is not to vindicate the claims of justice, but to produce reformation in the offender, and to maintain discipline in the ship.”49 Thus, punishment had to be nearly immediate and must relate directly to the correction of a wrong and the reestablishment of discipline, proper respect, and subjugation. However, as reformers began to pressure captains to adopt more humane methods, captains were urged not to strike while tempers flared but wait for cooler passions of a later time. Paradoxically, an officer courted danger either way. If he meted out punishment immediately, it might be claimed he acted from the excesses of his passion; yet, if he delayed punishment, it could be ruled illegal because it failed to be corrective in nature. Officers found themselves ever more proscribed in their options to correct an unruly man or crew as the courts became more and more involved in questions of shipboard discipline. “As the law now stands, a parent may correct moderately his child, and the master his apprentice; and the case of the shipmaster has been placed upon the same principle,” reflected Dana

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in his memoir; however, “if the punishment is excessive, or the cause not sufficient to justify it, he is answerable.”50 Precisely where the line stood between “moderate correction” and “excessive punishment” was a matter constantly before the courts for clarification and revision, and thus remained a thorny issue for officers while at sea. Though the officers might use force—even deadly force—to quell a rebellion or threat to themselves, passengers, or the ship, as soon as the threat had passed, any such force would be criminal. Supreme Court Justice Benjamin Curtis noted that the law made a “distinction between punishment and the use of force to compel obedience to a lawful order. . . . In all such cases, the master, or other officer in command has the right to compel obedience by the use of necessary force. He also has the right, and it is his duty to interpose to quell all affrays between the officers and men, and especially all forcible resistance to his lawful commands.”51 No hard limits existed on the use of force by an officer who acted in defense of ship, self, or fellow officers. However, the officer “should use that degree of force in doing so, which the occasion renders apparently necessary.”52 Of course, it was often quite difficult for officers (and, later, for juries) to determine just when an action drifted from quelling insurrection to unjust punishment. The complex and multifaceted authorities and responsibilities that rested in the ship’s commander can be seen in the original meanings of the two largely interchangeable terms for a ship’s leader. A captain drew his authority (at least linguistically) from the traditions of gentry and military leadership. The term captain imbued the titleholder with a right to command based upon either inherent or acquired skills as a leader of men. A ship’s master, however, drew on traditions of labor. A “ship’s master,” or “master mariner,” earned his position through his skill as a seafarer, much the way any master craftsman would earn his title through his acquired artisanal skill. Significantly, master also came, by the nineteenth century, to connote strongly the holder of slaves, which may suggest why seafarers so decidedly seemed to prefer the term captain in all but the most obsequious moments of their testimony.53 To build on the divided origins of the meanings and historical justifications for the master/captain’s command, legal authorities cast about for other equivalent positions of authority to guide the understanding of maritime power. Three metaphors appeared most often in attempts to defi ne the master’s authority in legal circles. The fi rst saw the captain as enjoying the same authority as a master over an apprentice or servant,

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and likened the relationship to other labor environments before the rise of contract labor in the 1830s.54 The second saw the captain as similar to a schoolmaster, who had the authority to discipline and correct, but also had substantial responsibility to educate and protect his charges. The fi nal and most important analogy compared the captain’s authority to the role of a father. All three theories have origins dating well before the Constitution.55 Judges had to not only choose among historical metaphors for officers’ authority but also consider the changing defi nitions of these roles in their own era. Supreme Court Justice Joseph Story noted that “the authority to compel obedience, and to infl ict punishment, is, indeed of a summary nature, but, in no just sense, of a military character. It is far more civil; and far more resembles the authority of a parent over his children, or rather, that of a master over his servant or apprentice, than that of a commander over his soldiers.”56 Such “defi ning down” of the captain’s authority marked the more subtle but important limitations on his power. A naval commander did serve as both judge and jury over his men, as proved by the famous 1843 case of the USS Somers, in which Commander Alexander Mackenzie was exonerated after trying and executing three mutineers on board his ship, including on Midshipman Philip Spencer, who was the son of the secretary of war.57 By contrast, the merchant captain had to stay wary of the legal implication of his actions once he returned to shore. In another decision, US District Court Judge Peleg Sprague of Massachusetts tried to describe when a captain might and might not use deadly force. In his charge to the jury, he explained: The master not only has the right, which every man has, of self-defense against impending danger, but it is also his right and his duty to defend his authority. He must maintain the supreme lawful authority over the crew who rise against it. The law requires that he shall use only such force as is necessary to accomplish the end. Such is the requirement of the law, in the abstract. But when a master is charged, as a criminal, for violating the law, the law does not convict him unless he has knowingly violated his duty. The question is, whether there was an apparent necessity for the use of the weapon; whether the master might reasonably [have] so thought, acting in good faith, as well as can be reasonably expected in the circumstances he is placed. The law requires that he shall possess such discretion and control as can be reasonably required of the average of men, fit to act as ship-masters, and that he shall exercise these qualities in good faith.58

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Both legal and moral pundits bolstered the image of the ship’s master as a benevolent but fi rm-handed patriarch for his crew. William Sullivan warned the captain to remind himself that “it is true that I am clothed with a high authority by the law, but that same law supposes, will be a friend and father to the family which it has entrusted to my care.”59 Captains may have been given sweeping power over the men before the mast, but seamen were free men, as both the law and seamen themselves were quick to remind any officer who might have forgotten. Like other American workers before the Civil War, seamen balked at the description of themselves as “servants,” and they rejected the description of their employers as “masters.” Though the generic term for labor law became the “law of master and servant” before the beginning of the American Revolution in both Britain and the American colonies, American workers’ refusal to be described or treated as “servants” was a point of pride at home and ridicule abroad.60 The captain could be held liable for any misdeeds by his officers while he was on board, according to the law.61 One guidebook for shipmasters recounts an incident: “When a master and mate were jointly sued in the admiralty by a seaman for an assault and battery, and it appeared that the mate assisted in some of the acts complained of; held, that the mate might be justified in assisting; in obedience to the master’s orders, though the conduct of the master might have been, on the whole, illegal, and unjustifiable; and that the libel, in such case, might be dismissed in respect to the mate, and he be made a witness for the master.”62 Though the master bore fi nal legal responsibility for the mate’s actions in this hypothetical case and in several actual cases, even in cases in which the mate acted with the master’s permission, the mate often found himself named in either a civil or a criminal prosecution.63 If, as Sawyer suggested, the captain was the most regulated employer of the antebellum era, the mate faced far less attention from both the law and the pundits who tried to interpret it in guides. Presiding over a civil case in 1831, in which a seaman claimed injury at the hand of the mate, Judge Ashur Ware of Maine acknowledged confusion and the ambiguity of the mate’s legal position: I am now inquiring for the legal rights of the subordinate officers in the presence of the captain, and I am free to say that I do not know the law which in such cases invests the inferior officer with such powers. The ancient sea-laws are curiously directory in fi xing the limitations of this authority in the captain, and the authority itself is, in some of them, rather suggested than directly given.64

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Guidebook writers were not much more helpful. In his guidebook, Sawyer presented fi fty-eight pages on the rights and responsibilities of masters, thirty concerning those of seamen, but only four pages of advice for the mate.65 William Sullivan suggested that much of the bad behavior of mates stemmed from the limited legal attention to ships’ officers other than the captain. So little legislation existed that focused on the peculiar role of the mate that he lamented, “Perhaps there is no remedy, but by the acts of congress.”66 Richard Henry Dana concurred in his notes from one case, explaining that “the duties and liberties of mates [are] little given much regard.”67 Mates were at once a part of the crew and separate from it. The courts ruled that the mates were “crew members” and could therefore be charged with mutiny and other offences brought against seamen, and that they were subject to the same punishments as regular tars at the hands of their captain; yet mates had additional rights and responsibilities beyond those of the ordinary crew.68 William Sullivan tried to parse the particular position of the mate, explaining, “It is a mistake to think that the mates are the captain’s officers; they are the owner’s officers, as the captain is himself, but placed under the captain’s orders for the owner’s benefit.”69 They did, however, serve at the pleasure of the captain, who could “break down” the mate to regular seaman, with sufficient cause.70 Legally, mates did not have the right to punish the men forcibly on their own except under exceptional circumstances. Only the captain could order corporal discipline, though the mates could protect themselves or others in the face of imminent physical threat. Additionally, when the captain was off the ship for any reason, the highest-ranking officer, almost always the fi rst mate, was temporarily vested with the powers of a captain. However, most cases brought against mates for abuse of seamen argued that they had overreached their authority by striking a man without the consent of the captain. In United States v. Hunt, Justice Story noted, “If the circumstances are not urgent and imperative, it is the duty of the mate and other officers to consult the master as to the infl iction of punishment; for he, being in command of the ship, is alone ordinarily intrusted [sic] with the regulation of the ship’s discipline.”71 However, since captains often affected a lordly distance from the more disagreeable aspects of ship life, in reality, the mates meted out most punishments. Though the law prohibited lesser officers from punishing the men because such authority was vested only in the captain, the captain’s fi nal responsibility meant that the mates did not have as much to fear for their excesses as did the

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captain. While captains faced both civil and criminal penalties for abusive punishments, mates (theoretically) feared only the potential loss of rank and wages for overstepping the bounds of their authority. As the ranks of attorneys like Dana and Alanson Nash (his closest Manhattan counterpart) focused on prosecuting brutal or cheapskate officers and owners on behalf of seamen grew, officers found themselves in a bind between a need to maintain order and increasing legal limits on their ability to do so. One guide lamented that “without authority in the master to enforce obedience by correction, the whole adventure may be abandoned to the mercy of the wind and waves.”72 As a result, officers made decidedly different assertions about their intent and the extent of their authority from the quarterdeck than those they made before the bar. In court, an officer would carefully assert that any violence was merely the result of “acting in his lawful capacity,” as was the case with Captain John Farland of the Leonidas when he sought to restrain a belligerent seaman.73 At sea, however, the officers expressed a far more expansive assessment of their powers. Faced with a disgruntled crew, Captain William Lewis Lyon of the Fairfield inquired, hyperbolically, “Do you know that I am authorized to shoot all hands one by one?”74 Though Captain Lyon overstated his authority from a legal perspective, his view was that of many a master. Officers faced a growing array of forces circumscribing their authority in the wake of the 1835 law. In addition to the broader delineation of seamen’s rights and officers’ limits in both the text and later judicial interpretation of the law, growing public pressure in the wake of exposés of shipboard cruelty like Dana’s 1840 Two Years before the Mast meant that a concerted reform effort worked to educate seamen about their rights in order to curb officer excesses. Finally, occasional shortages of able-bodied seamen in many busy ports meant seafarers had more leverage in their dealings with officers. Captains and mates feared the erosion of their power. Officers chafed at the inroads made on their authority, arguing that the latitude needed to deal with the dangerous characters who sailed before the mast was now denied them. In some cases, officers complained that they were being charged for merely doing their duty, while seamen seemed to get away with violent and mutinous behavior. Captains explained that, because of shortages of able and skilled American seamen, they were forced to bring aboard an ever more violent and dangerous element to serve before the mast. At the same time, the outside influence undercut their ability to maintain proper discipline. John Proctor, master of the Congress in 1835,

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found himself convicted of assault and cruel and unusual punishment for an incident with a deckhand named Nicholas Demeter. Before he was sentenced, Proctor sent an affidavit to the court, insisting: The Jury have imputed to him malice, hatred or revenge in the affray with said Demeter, he feels it to be a duty to himself to declare under oath that he was not actuated by any such motive or motives. But solely with the desire and intention to enforce proper subordination of the ship—and that upon each of the occasions that was attempted—except the last when Demeter was tied up—this Deponent was assaulted by, & received several blows from Said Demeter.75

How could the ship be governed, argued captains like Proctor, if the officers could not resort to force to curb a belligerent hand like Demeter? In another case, a captain frustrated by the threats of both mutinous violence and legal assaults by his crew complained to them “that if they supposed a master of a ship would be hanged ashore for shooting pirates, he, for one, would as soon be hanged at San Francisco for that as murdered at sea by a bunch of rascally mutineers.”76 The law identified the captain as the “master” of the vessel, and this mastery was expected to extend over everything on board. Captains often presented themselves as absolute rulers on the waves, and the law did indeed grant them sweeping powers. Sawyer explained how important the captain’s control was to the safety and security of the voyage: “The necessities of the sea service have given to the ship master, when at sea, great authority over the officers and crew under his command. A prompt and cheerful obedience of orders, on the part of seamen, is of the utmost importance.”77 Even the most ardent reformers insisted that the captain needed tremendous powers to secure the safety of all on board. Sullivan, who wrote his guide at the behest (and expense) of the Reverend Edward Taylor of Boston’s Mariner’s Church, insisted that the captain needed broad powers in order for the ship to function properly.78 Dana, in his Seaman’s Friend, which was designed to serve both as a guide for seamen and as an advertisement for his Boston legal practice, insisted that “the shipmaster is a person in whom, by both the general maritime law of all commercial nations and by the special statutes of the United States, great powers are confided, and upon whom heavy responsibilities rest.”79 Captains endeavored to remain detached from day-to-day matters of enforcement unless something so significant occurred that it demanded a personal response. Though, in a technical sense, the master bore legal

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responsibility for all punishment at sea, it was somewhat unusual to see the captain himself perform the actual punishment, except when the infraction involved a direct affront to or attack upon him.80 Even when the captain did order a man bound or flogged, it usually fell to his officers to execute the order while the captain stood by, and the severity or laxity of the beating was determined by the efforts of the mate. Officers frequently resorted to a game of “good officer / bad officer,” in which the captain could enjoy a position as an aloof voice of reason, and either the fi rst or second mate had to instill the fear thought necessary to keep the ship functioning with efficiency. In fact, a mate who acted wholly within the law was likely to displease his captain by being thought too lenient with the crew. A number of captains complained that their mates were too stingy with lash and fist.81 On the brig Governor Thorpe out of Boston, Captain James Porter asked his fi rst mate, Mr. Randall, who had been having difficulty with one of the crew, “Why don’t you lick him? [If] I had been mate, I should have licked him long ago.”82 Of course, had Randall done so before Captain Porter’s encouragement, he would have risked overstepping his authority. Nevertheless, captains expected that their mates could handle discipline on their watch without interference from the captain, and a number of captains complained that trouble on the ship began with the laxity of the mates’ discipline. When the mate did mete out the discipline, it had to be of the same corrective character as if from the captain. In the notes for his summation from an 1851 case, Dana explains that a mate can punish only if he is ordered to do so, or in the face of an immediate threat or attack. Speaking to the jury about an altercation between a seaman and the mate, a Mr. Tooke, he noted: Beating is undisputed. Fact[s] for you are (1) if justifiable (2) if malice. If for punishment, [it] is not justifiable. He had no orders to beat. If the seamen struck the blow to the officer . . . and the mate struck him back, he is justifiable in doing so. Allow latitude to him in returning blows—the return may be greater than the o[ther] blow. Malice is not indignation or anger for an act of another, but must be evil intention.83

If the captain had a difficult task making sure punishment remained legal, the limited status of the mates required an even more difficult process of justification. Nevertheless, when discipline became harder to maintain, captains relied increasingly upon the strong-arm tactics of the mates. As the number

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of American ships began to swell in the 1820s and 1830s, seamen started to have unprecedented leverage over the terms of their employment. Scarcity of qualified seamen at many eastern ports meant that they began to enjoy a choice of berths and a stronger hand in their own situation. Coupled with this was increased protection for seamen before the law, through both the expansion of the consular system abroad and new laws that expanded protection of seamen while sharply curtailing the officers’ right to punish. In the face of eroding authority, many officers bolstered their position through brutality. Moreover, as the New York packets suffered from declining profit margins due to increasing competition and the shift of the highest class of cargo to steamships by 1850, the pressure to get more work and faster crossings out of smaller crews meant that mates had to drive the men harder. As a result, captains began hiring so-called bucko mates who qualified for their positions with pugilistic rather than nautical résumés.84 Precisely because so much of the punishment fell to the hands of fi rst mates, they often had to have the most vigorous and nuanced defenses of their actions. Despite the fact that the law clearly named the captain as responsible party on his ship, numerous indictments name a lesser officer for a criminal charge relating to punishment of seamen, counting both the district and circuit courts.85 It is no surprise, then, that mates often came into court with wellcrafted defenses. When First Mate John Hargraves found himself charged with cruel and unusual punishment after beating a drunken seaman, John Brown, with a “hawser”86 in 1833, he insisted that “it was not less his duty than his privilege to enforce his legal orders—and that when assaulted by superior force, he might by common right arm himself.”87 Hargraves’s explanation of his actions makes three separate claims in one sentence. First, he insists that his “duty” governed his actions, and that the fi nal responsibility for his actions rests at their origin, with the captain. Second, Hargraves argues that he had a “common right” to self-defense when faced with two drunk and presumably dangerous seamen. Finally, he insists that he acted upon the “privilege” of his own authority to enforce the orders of the captain as he saw fit, within the law. Though the jury acquitted Hargraves, he did suffer fi nancially from his brawl with Brown. While remanded awaiting trial, Hargraves lost his berth and was left destitute by the cost of his defense.88 Indeed, although before-the-mast seafarers rarely saw their sadistic captains and mates go to prison for their excesses, the cost—both fi nancial and in terms of reputation—of a public trial did afford seafarers a way to see justice done. Addi-

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tionally, the swelling docket of civil cases brought against officers proved that the men became increasingly studied in and protective of their legal rights, and were willing to seek redress through the federal courts. The officers on antebellum American merchant vessels faced a maze of ever-increasing and ever-changing regulation as to how, when, and why they might punish the misdeeds of the tars before the mast. Pressure from men at sea and reformers on land led both Congress and the federal courts to tighten restrictions on officers as they sought to protect and make coherent the rights of seamen. Although it could hardly be argued that seamen found a steady friend in the legal system, even minor interferences in shipboard discipline meant that authority rested increasingly in the hands of land-based entities, at the expense of officers at sea. Even when the courts upheld officers’ authority, the mere fact that an external body was called upon to legitimate their position weakened it. The creation of a series of new crimes and the more precise defi ning of others through the Crimes Act of 1835 meant that officers operated in a world of increased legal regulation and had to fit their formerly expansive power to the new requirements. When, by 1850, the law removed the lash from their hands, officers had already grown accustomed to carrying out their more extreme means of “disciplining” those under their authority in ways that retained the often violent characteristics they insisted were needed for so unruly and immoral a workforce while still maintaining fealty to the letter of an increasingly powerful law. Despite the best efforts of the federal judiciary—the legality of force in labor control continued to be an open and contested legal issue into the twentieth century. The discourse that began on the decks was revisited in the courtrooms; reinterpreted in the work of Dana, Sullivan, and other guidebook writers; and then redeployed onto the decks of American ships, where it developed into an active, vibrant, and often violent debate about the position of seafarers as men and as citizens, and marked an early attempt to delineate the rights and responsibilities of both labor (seafarers) and management (officers) at the federal level. Ships’ officers expressed dismay, resisted, and fi nally adapted creatively to the changing legislative world in which they found themselves in the early Republic. Most generally, knowing that the national government, in the form of expanding, powerful federal courts, could revisit their shipboard decisions forced officers to engage in a fluid legal dialogue with the nation over the basic issues of shipboard governance. Although they retained the power to “discipline” the men under their command, the judicial authority to punish crimes at sea sat now in the hands of judges and

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consuls ashore, who could revisit and reinterpret the incidents that took place at sea. Of course, officers were not alone in understanding and reacting to the legal changes that governed maritime labor. Seafarers, too, saw both peril and promise in the shifting legal environment, as they used both novel and traditional, legal and extralegal, means to resist or recast the authority of officers and assert a measure of control over the conditions of their own employment.

Ch apter Four

“All Is Violence”: Mutiny and Revolt as Labor Negotiation

Here is a case in which we forecastle men think a little interference of the law much wanted. —Charles Dickens, “We Mariners of England”1 I applied to the Captain for remedies. He told me to go to Hell and jump overboard. —Deposition of John Gilbert, United States v. Michael Duggan 2

T

he crux of many a shipboard dispute can be seen in a terse exchange of words on the deck of one Massachusetts whaler in 1854. In the midst of the dangerous and dirty work of “trying out” a whale on the deck, crew member Ebenezer F. Ryder took an accidental blow to the face. In the estimation of his captain, William B. Carl, Ryder dawdled while washing the blood from his face, and he took Ryder’s malingering as an affront to his authority. According to Ryder’s complaint, the captain demanded, “Why don’t you & the other men do more work?” Ryder retorted that “there were not men enough in the ship to do the work,” whereupon Captain Carl allegedly struck the man several times in his wounded face and menaced him with a knife. 3 Although the magnitude of Ryder’s bad day on the job might be unusual, the larger pattern of an ongoing debate about the practice and pace of work would be familiar to any antebellum seafarer. Before the Civil War, seamen on American vessels found themselves in a precarious and dangerous workplace. In addition to the perils inherent in seafaring itself—harsh weather, hard labor, and hazardous waters— seamen also faced dangers from their officers and from one another. Although statutes put greater and greater limits on officers’ power by the later years of

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the antebellum period, the officers continued to hold a monopoly on legal violence at sea throughout. Because of the sweeping powers granted to captains, the men had limited legal recourse against brutal, incompetent, or insane officers, even into the 1850s. Nevertheless, seamen defended their rights by both subtle and, on rarer occasions, more explicit means. The legal parameters governing shipboard labor changed significantly in the period between 1789 and 1850, but generally speaking, labor at sea did not. Some aspects of shipboard dissent remained constant across and beyond the period of this study. Harsh treatment, dangerous conditions, low pay, poor food, and brutal officers drew responses from the men before the mast in 1790 just as they did in 1850 and beyond. Yet, while the underlying causes may have not changed, the understanding seafarers brought to their plight and the tools of resistance available to them did change. Seafaring labor did not take place in regulatory or ideological isolation, and seamen pressured officers with new arguments about their rights and asserted new protections from federal authorities even as they resisted long-standing injustices by traditional methods. Shipboard altercations, particularly those in which the crew endeavored to stay the officers’ hands, offer a unique perspective on the negotiation of the labor environment. At their core, shipboard insurrections marked an attempt to renegotiate terms and conditions within the working environment. When other forms of negotiation broke down, seamen engaged in both collective and individual disobedience, ranging from malingering, work slowdowns, and work stoppages to violent insurrection, including revolt, mutiny, assault, and murder. Though most cases were settled between the men and the officers on board, the situations that could not be dealt with through traditional means and found their ways into the courts illuminate the points of greatest tension regarding labor on ships. Marxist scholars as well as those of more Whiggish proclivities continue to regard seafaring as a stubbornly traditional, unchanging workplace.4 Seafaring certainly maintained traditional elements from the colonial era through the last years of commercial sail at the dawn of the twentieth century, though these scholars overstate the case. Even if the work changed little, the wider world beyond the particulars of shipboard labor did, and seafarers reflected these changes in the means, rhetoric, and understanding of their acts of resistance. As legislation and judicial interpretation defi ned seamen’s rights in sharper terms from the 1830s to the 1850s, seamen on US-flagged vessels continued to defend what they saw as their customary privileges, as well as these new and expanding statutory rights.

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h Seamen did attempt to check new encroachments against traditional practices, as in their strenuous objection to the coming of “temperance ships” in the 1830s, or in their resistance to adjustments in conventional rations or shipboard duties, whatever the legal requirements. However, they also moved to enhance their position by relying on the growing body of federal law designed to protect them, and by use of the ready access to federal courts and American consuls in foreign ports before whom they could lay their claims. Like their terrene counterparts, seamen resisted the inroads of the market revolution, the collapse of conventional or common law protections for workers, and the commensurate devaluation (in both cultural and fi nancial terms) of labor. Seamen, however, had two important but ironically opposed advantages over landsmen. First, at journey’s beginning and end, seamen found an ally (albeit an ambivalent one) that other American workers did not have in the federal law. The growing federal regulation of the maritime workplace reasserted and proactively created new and expanding rights and obligations for both seamen and officers. By contrast, seamen also could use the unavailability of recourse to outside authority once the ship set sail. A typical merchant ship engaged in deepwater trade carried two to four officers, including the captain, and between ten and twenty seamen before the mast, depending on the size of the vessel and its rigging. Once at sea, temporarily beyond the reach of either local or federal officials, the imbalance of numbers meant the tables were turned, and, despite the risks, seamen often attempted to check the power of officers and influence how their workplace would operate. Seamen used two central arguments to defend their rights: appeals to “custom” and appeals to “law.” Although both appeals remained part of seafarers’ arsenal from the colonial era through well after the Civil War, the relative strength of the two approaches changed over time. The men asserted the power of custom before the law responded with enhanced and clarified protections in the 1830s. After 1835, when federal judges like Samuel Betts in New York and Peleg Sprague and Joseph Story in Massachusetts crafted an increasingly nuanced and aggressive federal authority over maritime issues, the men shifted their appeals, couching them in legal terms. By the 1840s, however, with seamen’s legal rights assured, and the harsh “drivers” of the 1820s and 1830s increasingly reticent to be as “fierce in their use of power”5 as they had been before, the men pressed their advantage. In the 1840s and 1850s, however, the men returned to

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forecastle law not only to defend older conventional privileges but also to assert new rights beyond those enshrined in law. By the 1850s, the law moved forward, codifying rules that the men had already established on the decks in the years preceding. Particularly in the case of flogging, seamen were, on occasion, able to adjust the conditions of their workplace, presaging in what became “normal” practice on ships later legal protections received from Congress. From the fi rst days of the Republic, Congress understood the importance of efficient and prosperous maritime commerce and established the details of how labor was to operate, be paid, and be disciplined at sea. As discussed in chapter 2, Congress passed significant legislation regulating the duties and rights of seamen throughout the antebellum era in an effort to bring order to maritime life and labor, and seamen adapted quickly to the new legislation.6 The proliferation of guidebooks targeted at both seamen and officers suggests the importance of the law in the minds of those who sailed. Still, the law was not a wholehearted friend of the seaman. Although tars appealed to federal statutes and officials for protection, the law was at best an unpredictable ally throughout the antebellum period. Jurists went out of their way to warn juries to suspect and discount the testimony of before-the-mast sailors, and they reiterated that, whatever the limitations placed upon them by law, officers needed to enjoy broad latitude in the execution of their command.7 Jurists seemed concerned that juries in port towns would prove too forgiving to maritime laborers. In this concern, federal jurists echoed the fears of imperial officials in the colonial era, who advocated admiralty decisions be placed in the hands of judges to avoid jury nullification.8 Even if the law often remained unfavorable to them, seamen actively defended both their legal and customary rights. The ship’s articles represented an important delineation of rights and duties for both crew and officers, and they codified the basic parameters of pay, discipline, and provisions for the specific ship. In several cases, one side or the other referred in testimony to the articles, as both officers and tars invoked specific provisions. More broadly, however, seamen came to see the articles, regardless of the specifics of their text, as a totem, a symbolic representation of their rights. Aboard the Lorena in 1849, Francis Washington argued that his signature on the articles entitled him to a measure of respect and demanded that Captain Conway address him by name rather than as “you there.”9 Washington believed that his name on the articles imbued him with a right to respect, something far broader, vaguer, yet more impor-

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tant than the language of that contract described. As such, he invoked an understanding of the articles as a ship’s version of a bill of rights, there to enshrine grand, essential premises of the rights and privileges of his craft. Even in the midst of a flogging, seamen sometimes had the presence of mind to call out their defense in explicit legal terms. William Merchant, a seaman on board the Elizabeth Dennison in 1844, asserted his innocence in legal terms, insisting, “that he hadn’t done anything to violate the laws.”10 Henry Moad, on board the Tremont in 1832, found himself part of a strike seeking to halt what the crew believed was a brutal and dangerous punishment of an ill man. Moad explained himself in legal terms: “To this mode of effecting and employing a humane design, this Deponent with Valence and Smith asserted, and conscientiously believed it to be a peaceable and justifiable means of effecting without force a lawful purpose.”11 Although the court disagreed with Moad’s interpretation, insisting that the situation did not justify his disobedience, his sophisticated articulation of his legal position is striking. Moad framed his actions in the language of laws and rights, insisting not on fairness or conventional practice but that he sought a lawful purpose. His invocation of law suggests seafarers’ growing sense that their rights were to be understood and defi ned through legal logic in the arena of federal courts. Of course, it may be an indication of the good work of Moad’s attorney, who coached his client well before the deposition. Even so, that a seafarer could so carefully and artfully couch his actions in legal terms is significant. Whether Moad came to his defense already a skilled legal amateur, or whether his deposition was a new and frightening experience, it was certainly an instructive moment for him. Assuming Moad returned to the sea, he did so with fi rsthand experience with the workings of the court, and with the kind of arguments that might fi nd favor there, if not on the deck of a ship. Throughout the antebellum era, seamen most frequently objected to mistreatment simply by leaving the ship as soon as it reached port, and desertion, though a criminal act, occurred on almost every journey. On occasion, a particularly unpopular captain might fi nd himself having to replace almost an entire crew when he arrived in a port where other employment was plentiful. Captains heading for California, for example, often prevented the men from going ashore to avoid mass defections. Fiji also became notorious for desertion.12 In other cases, captains encouraged disruptive or even highly paid men to desert in order to save on wages in ports where replacements were cheap and plentiful.13 As the size of the US merchant fleet boomed in the teens and thirties, captains and owners

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encouraged desertion to exchange pricey American seamen for less expensive foreign-born labor. Foreign seamen could be hired cheaply in the ports of Europe, Hawaii, and elsewhere, and seamen who deserted—even at the suggestion of their officers—forfeited all pay earned. Indeed, unjust officers often encouraged desertion through brutality so that the voyage could save the wages forfeited by the runaways. These encouraged desertions increased in many ports throughout the 1830s and 1840s. In 1846, Captain Lewis G. Hollis of the Gentos made things perfectly clear to two crewmen whom he did not want to make the return voyage to Boston, explaining, “If you don’t run away twelve hours after the ship reaches Calcutta I will cripple you so you will be obliged to go to the hospital.”14 The propensity of captains to encourage desertion as a way to save on wages became epidemic in the Pacific whale fishery. US Navy explorer Charles Wilkes, himself a fan of harsh corporal discipline on board, complained that “many Americans are found on the different islands, who have been turned ashore from whale-ships, or left because they have broken their liberty a single time, near the end of the voyage. Such treatment leaves too much ground to believe that they are purposely left, in order to increase the profits of the ship-master or owner.”15 Whether seamen were encouraged off or they slipped away on their own volition, their desertions represented the most individual form of labor resistance to the authority of officers. Most often, men simply stole off while on shore leave, but occasionally they bargained their way out of what turned out to be an undesirable berth. The sea diarist and attorney Richard Henry Dana Jr., who was hired to spend significantly more than his famous two years before the mast, saved himself from that fate by bribing someone else to take his place on board the Pilgrim so that he might return home to Boston on another ship.16 Captains frequently accepted these replacement seamen, but were under no legal obligation to do so. Yet, by the 1850s, the practice was so commonplace that some men believed that simply sending someone back to the ship in their stead was sufficient to relive them of their duty to an undesirable berth. In 1853, Captain Solomon S. Riggs of the schooner J. B. Lindsay fi rst tangled with some of his crew in Trinidad, after “two black men came alongside and said these men had sent them to work in their places.”17 Riggs’s dilemma stemmed from his crew members’ attempt to play the different wages available in different ports to their advantage, just as some officers had come to use coerced desertion to relieve themselves of troublemakers on board and to improve the ship’s bottom line with low wages. Both sides saw desertion (illegally coerced or illegally

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voluntary) as a means of working the vagaries of an international labor market to their advantage. In some cases, the men demanded rather than bargained to be allowed out of an undesirable berth. When cook Richard Good told Captain Lemuel Harvey he wanted off the ship, he threatened violence if he was not released from his position. According to Harvey, “He told me that if I made a Harbour, he would leave the vessel. I told him it was not likely that I should make a Harbour while in the straits. He abruptly answered that I might be in a Harbour before I knew it.”18 Harvey did attempt to send Good off the ship at Gibraltar but was unable to do so because of a strict quarantine, and their confl ict continued to simmer. Still, simple desertion represented the most common way that crew members rejected officers’ authority. When they felt their rights besieged (or where they saw the availability of better options) seamen simply extricated themselves from the situation. Desertion proves a challenge for historians, however, because such incidents are largely invisible in surviving court records. When such defections do appear in the records, it is usually in individual logbooks or articles that identify new men signing on midvoyage. It rarely seemed worth the time and expense to involve the courts and consuls to chase down someone who jumped ship, unless desertions proved too severe for the vessel to proceed. Captains understood that the ship’s fi nances benefitted when American seamen deserted and forfeited their wages. When they did want to hunt down a runaway in a foreign port, they usually availed themselves of the local authorities to return the recalcitrant mariner, and, provided he returned to duty, no charges were likely to be brought once back in the United States. In American ports where berths could be had quickly and easily, captains usually resigned themselves to the futility of enforcing their claim; in ports where seamen were plentiful, captains could rely on labor pressure to keep men aboard, or easily replace anyone who fled. So seamen who were unhappy with the working arrangement of their ship could simply jump ship, provided shore leave in an amenable port of call was available. Other men, however, employed different ways to impress upon their officers the need for changes in the workplace. The courts identified a number of charges that could be categorized as some form of insurrection or insubordination by the men, including revolt, endeavor to make a revolt, failure to obey an officer’s command, confi ning the master, and the worst, mutiny. Prosecutors frequently brought several of these charges against the men for actions stemming from the same altercation.

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Even a cursory examination of such cases shows that, more often than not, the events that led to such charges began as attempts by the men to challenge or limit the authority of their officers, and to bring about some specific change in how that ship would operate. These crimes of shipboard insurrection represented a form of impromptu labor protest. Seamen had a means, albeit a dangerous one, to articulate the boundaries of acceptable punishment and to enforce customary rations, duties, and treatment. Once away from the dock, the men had great leverage due to their sheer numbers, if they dared use it. Making use of that leverage, however, was a difficult and dangerous endeavor. The law protected officers from the tyranny of numbers by making even the slightest disobedience a serious criminal offence. Dana noted with sympathy the precarious position of seamen: “But beside the numbers, what is there for a sailor to do? If they resist, it is mutiny; and if they succeed, and take the vessel, it is piracy; if they ever yield again, their punishment must come; and if they do not yield, they are pirates for life.”19 It seemed, as Dana suggests, that the men faced a choice between only blind obedience whatever their plight on the one hand, and dire punishment, whether at the hand of a captain in the short term or the law in the long, on the other hand. Nevertheless, collective disobedience served as an important means of protecting seamen’s rights on each voyage. Negotiation over the details of the ship’s working arrangements was more complicated, however, than mere disagreement over the specific rights and responsibilities of seamen and officers. Mariners fought over a complex web of legal and customary rights in a language and manner bound by custom and conventions of shipboard negotiation. Officers tried to set a stern tone, to make clear from the outset of the voyage that troublemakers would be dealt with severely. At the beginning of the journey, the captain addressed the men, reading from the articles and stressing his legal authority and the necessity of obedience and compliance on the part of his crew. In contrast, from the moment they signed on, the men tested how much flexibility they could work into the bonds of discipline on board, adopting an affect of disinterest, and attempting to prolong the earliest tasks to try to set a survivable working pace for the trip. On board Melville’s fictitious journey as “Redburn,” the crew “affected a sort of lordly indifference as to whose watch they were going to be in; and did not think it worth while to look any way anxious about the matter.”20 The crew gave the officers no information that could be used to play different watches off one another. Their feigned neutrality about which officer they served showed the officers (and one another) that the

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crew was a single bargaining unit, and this indifference served as an opening bid in a subtle and often nonverbal struggle to negotiate any advantage the men could wrest from the officers. Diarist George Davis corroborates Melville’s fictional account in his own tale of setting out in from New York in the 1830s.21 The “indifference” to which officer a man would serve under marked part of a long-practiced ritual of sizing up between officers and the men. It was the men’s opening salvo in a subtle war of largely silent negotiation about the working of the ship. In many ways, this ritualized display of indifference served as response and counterpart to the captain’s traditional address to the men at the commencement of the voyage. Like all such ritualized negotiations, the form may have followed rigid convention, but the specific outcome was determined anew on each journey and in the working through of the relationship between each captain and crew. Moreover, simply because these aspects of the beginning of the voyage started a traditional and expected period of testing out and sizing up each other does not mean that the terms of the debate were always the same. In the broadest sense, the set pieces may have remained the same (the captain’s address, the men’s demonstrative ambivalence to the authority of the officers and connection to the ship), just as the broad topic (how hard or lax discipline would fall on the men) was unchanged. The specifics of the disagreements that followed, however, show the development in the men’s sense of their rights. Men and officers may have jockeyed for position over the “feel” of the journey throughout the period, but what both sides expected changed dramatically. This negotiation began—and could go dramatically wrong—from the moment the articles were signed. The crew of the Washington Irving, sailing in 1839, got little farther than the ill-fated Lorena. According to the ship’s master, Paul Latham, three of his crew “refused to do their duty . . . accompanied with violent and mutinous gestures. That the conduct was such as to make it unsafe and imprudent to proceed to sea with them on board, and this deponent was obliged to bring said ship to anchor.”22 Here, Latham’s crew simply refused to sail, effectively vetoing the arrangements of that particular voyage. Faced with the “mutinous gestures” of the crew, Latham acknowledged that, in this instance at least, he had failed in the fi rst negotiations with the crew and needed to start over with different men before he could set sail. In 1836, the men of the Columbus took matters into their own hands, flagging down the coastal schooner Abraham Simonson off Staten Island and persuading its master to take them and their luggage to shore in order

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to escape a berth they saw as unfit. According to the master of the Abraham Simonson, “On the way up they mentioned they had left the Brig Columbus . . . said they were not going to sea with her—they said their articles were broke” because the conditions on the Columbus were not to their liking.23 Hampton Stewart, master of the Columbus, was forced to anchor and go ashore to “procure men from Staten Island to furl the sails and secure the vessel” until he could replenish his crew with new recruits.24 The crew couched their explanation in decidedly legalistic terms, insisting that their contract, the articles, was “broke.” Although they may have gone beyond their explicit legal rights by simply refusing to sail, their assertion of legal justification—the absence of a valid contract—suggested a crew with a clear understanding of their rights and a willingness to assert them. Seamen balked at the working arrangements on board ships for a number of reasons throughout the antebellum era, but the most common dealt with the ship’s rations and provisions, the seaworthiness of the ship, the fitness of the forecastle, and the perceived unfitness of the officers as excessively cruel, unusually strict, or incompetent. They quarreled with officers over every detail of life and work at sea: who was assigned to which watch, when men could and could not go ashore, the quantity and quality of rations, sick leave and medical treatment, the seaworthiness of the ship, and the use and availability of alcohol.25 In the records of the Southern District circuit and district federal courts for New York, the condition of the ship was almost always cited as a mitigating factor by the defense in cases in which regular seamen found themselves charged with revolt or another form of disobedience. In most cases, the defense offered evidence of mistreatment or inadequate provisions to explain their client’s actions. After the 1835 statute strengthened the legal hand of regular seafarers generally, the men used this new leverage to mitigate the specifics of their workplace. Rations and the condition of the ship ranked fi rst among complaints. The crews of the Halcyon in 1836 and the Macandy in 1837 were among many that complained of insufficient food.26 The men of the Henry Kneeland in 1837 balked at the ship’s living conditions, insisting that “they remonstrated with the captain in respectful terms against the condition of the forecastle and represented to him that they would very much prefer to return their advance money and not make the voyage.”27 Other cases saw seamen objecting to changes in the scheduled ports of call. In 1853, black seamen on one ship refused to work when the captain told them they would be stopping in the southern slave states en route to South America.28 Because of laws limiting the shore liberties of black

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seafarers in southern ports, beginning fi rst in South Carolina in 1822, a port of call in the South could be particularly onerous for black tars. The laws, designed to curtail the supposed possibility that black seamen would help instigate slave insurrection, became a source of considerable frustration for black seamen, white owners and officers, and northern reformers alike.29 In fact, debate over the status of black American seamen became a substantial issue for federal judges. In 1841, Judge Peleg Sprague of Massachusetts ruled unconstitutional the Louisiana statute, 30 which called for the compulsory jailing of all free Negro seafarers (and passengers) while in Louisiana. 31 An additional source of confl ict grew out of the harsh and very limited

Figure 5. Race operated at sea in ways related to, but distinct from, how it was understood ashore, and certainly the national identity of black seamen, whether free or enslaved, was complicated. In some cases, seamen of color could be singled out for abuse, and were less likely to feel solidarity with white shipmates. Strikingly, however, federal courts seldom identified seafarers of any rank with regard to race. Reformers seeking to curb corporal punishment drew links between all seamen and the condition of slaves—a comparison that seafarers vigorously disputed. Seamen came to defi ne limits on their treatment and conditions as due to their rights as citizens, rejecting their legal status as wards and the ways reformers described them as infantilized incompetents in need of protection.

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medical care on American ships. English whaleships were required to carry a ship’s surgeon. On most American vessels of all sorts, however, the captain did double duty as medic, with nothing more than a small supply of medicines and one of a few popular “how-to” guides to assist him. 32 Though surgeons were somewhat more common on the better class of merchant ships, particularly those that also regularly took passengers, medical care remained dubious and frightening for the majority of seagoing men through the antebellum period. The “cure” at the hands of the captain was often intended to be a grim motivator to return to duty rather than a true attempt to ameliorate the patient’s condition. The fact that medical care was paid for out of the men’s wages compounded the physical pain with fi nancial suffering. Since men could and did use illness as a means of avoiding work, disputes in which the crew shielded an ill shipmate from officers who believed him to be malingering were common. One such case was that of Asa Smith and his codefendants, charged for a revolt on board the Tremont, a Boston trader in the Canton trade in 1832. Initially things went well, and Smith “proceeded on the voyage in perfect harmony with his shipmates and the master and officers, they all appearing mutually pleased with one another.”33 The mood on board shifted, however, when Samuel Morrison, one of the crew, fell ill. According to Smith’s deposition, “When one of the hands, Samuel Morrison, who was sick and had been so for some days, did not do some job he was set about as quick as the Chief Mate wished, who asked him why he did not move quicker, to which he answered that he was unwell.”34 Initially, the mate responded with empathy, saying he was glad the man told him, and that he would check on him later that night. By the following evening, however, the mate became convinced that Morrison’s vague symptoms were those of a malingerer. He became enraged to fi nd Morrison sleeping on his watch and shoved him from behind, throwing him off the windlass. Furious at Morrison’s inattention, “The Chief Mate, who is a morose and evil disposed, turbulent man, and not a man of truth, swore that he was [asleep] and that next time he would not take his fist to him, but would mash him with something else, whereupon a violent quarrel in words ensued between them and the mate seized him by the throat to drag him aft.”35 Morrison was placed in irons and ordered down into the hold. He explained that it was illness and not inattention that had caused him to be derelict in his duties, but Captain Sturgis would have none of it. Again, according to Smith, “The Captain distinctly and imperiously refusing to

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hear, or let the man explain the mate’s conduct to him, or state the circumstances in his defense: the Captain replying audibly, and passionately, ‘No, you rascal, I will not hear a word from you.’”36 Morrison was then chained “to the aftermost stanchion in the lower hold . . . and there left him on a pile of offensive, unhealthy wood and stones in the most noisome and unhealthy part of the ship, from its being dark, confi ned and near the bottom of the Ship.”37 Smith, a fellow seamen, knowing of Morrison’s illness and fearing for his life, “respectfully submitted that he should be let out and permitted to come on deck, which was peremptorily refused in a violent tone by the officers.”38 At fi rst, Smith and his fellows appealed to the captain as their humane protector, but, fi nding him unreasonable, they took an increasingly belligerent tone. When Smith’s entreaties went unheeded, he returned with seven of his shipmates to make the point more forcefully. Fearing that Morrison would die in the fetid hold, the men surrounded the captain and demanded that Morrison be removed to the forecastle. Faced with such opposition, the captain relented but later brought charges of revolt against the men for their insubordination. For their part, the men did not contest that they had disobeyed, but insisted that they did so only to preserve the life of their shipmate, which they believed justified their actions. Forcible insurrection represented the last resort to which men like Smith could turn if all attempts at reason failed. Though the jury did not agree in their case, Smith and his friends were not entirely without legal justification, for the law did permit the crew to stay an officer’s hand if his actions were deranged or mortally dangerous. However, courts hesitated to accept justifications for uprisings against officers, no matter how measured, for fear that to do so would undermine the authority of officers on all ships. As a result, even the most egregious cases of officer incompetence and brutality did not mean the men could act without fear of prosecution. Not until 1857 did the US District Court for Massachusetts rule: If, from the improper conduct of the captain, the men had good reason to believe, and did believe, that they should be subjected to unlawful and cruel or oppressive treatment, they had a right to take reasonable measures to protect themselves from such treatment. Further, even if the crew believed that such a wrong was imminent upon one of their number, they had the legal right to take reasonable measures to protect him therefrom. 39

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Even then, however, the court was mute as to what those “reasonable measures” might be, and the men entered into a dangerous legal area if they took any kind of action against their officers. Trouble between officers and seamen was not limited to time spent physically on the ship. Shore leave represented a common fl ash point between officers and crew. Because men often got into trouble ashore— trouble that the ship often had to pay for—captains granted as little time ashore as the men would tolerate. Since officers determined the time and length of shore leave, they kept troublemakers close at hand so they would not cause problems ashore or, worse, return drunk and belligerent and bring trouble back to the ship. On board the Catherine, a group returning from a night of carousing in Santiago, Cuba, led to a pitched battle between officers and crewmen that ended with both sides being charged in court.40 For temperance captains and others who took seriously the admonition of reformers that officers should be moral leaders to their crews, shore leave gave crewmen (and some officers) opportunity to indulge in precisely the vices they sought to keep from their crews. One infamous event concerning shore leave occurred in Hawaii in November of 1852. After a constable killed Henry Burns, a drunken whaleman from the Emerald of New Bedford, Massachusetts, tensions rose between seamen and local authorities until they fi nally burst into a full-fledged riot. In desperation, the authorities on land unilaterally canceled all shore leave.41 Packet ships, which might lie docked at Le Havre or Liverpool for up to a month, could not practically keep men from going ashore, but the shipping lines contracted for accommodations in order to maintain some measure of control even when the men were not on board.42 Men defended their right to seek more peaceable redress, and, frequently, what lay behind disputes about shore leave was the fact that men were seeking to petition the consul. The courts were clear on the right of seamen to petition the American consul in foreign ports about mistreatment or poor conditions at sea. An 1840 act made explicit that the men were to have the “fullest liberty” in seeking redress from consuls.43 A man who could not get ashore, however, had small chance of having his complaints heard. In several cases, violence broke out when the men were thwarted by officers in appealing to a consul or other official. When Edward Grigg was stopped by the fi rst mate of the Hewes from seeing the consul at Trieste about his concerns for the ship’s seaworthiness, the situation erupted. According to the testimony of the mate:

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I was in my cabin getting my tea when Abe Grigg came aft and asked me to come on deck. I went on deck & then he said to me he was going on shore to have the ship condemned. I told him that he had better go below and go to sleep. Abe then he said he would go on shore—that he and a part of the crew were determined to condemn the ship—I told him that he could not go on ashore that night, but if he would wait till morning he could go then. . . . I then put my hand on his shoulder & pulled him back on the deck. I told him that he should not go ashore. Prisoner then replied “I’ll let you know what I can do.” Abe then drew out his knife and made a plunge at witnesses’ left side and struck upon witnesses’ watch (which watch the deponent produced with the mark of the knife on the case).44

Of course, in his testimony, the mate of the Hewes insisted that he objected only to the timing of the men’s request to go ashore, not to their clearly lawful request itself. The men, however, told a different story. Despite their legal right to petition the American consul, seamen frequently needed to threaten drastic action or slip off the ship unnoticed to get access to outside authorities. Several cases began when the men engaged the help of authorities to protect an officer’s pet whipping boy from systematic abuse or, as was the case after the 1835 death of cook Richard Good at the hands of Captain Lemuel Harvey, to try to make sure the officer responsible faced punishment.45 For his part, Captain Harvey insisted the men swore complaints falsely to be free to seek more attractive berths. According to Harvey, the men “went to the English Consul and made a very incorrect statement respecting the death of the Steward”46 in order to be free to take positions on an American frigate in hopes that rumors of war with France would mean lucrative prize taking. Whether the complaints were real or imagined, captains understood that an unwanted external authority interfering with the ship’s affairs could mean costly delays or fi nes or, worse, serve to undermine their authority and foment dangerous rebellion when back on the open ocean. Thus, a strong impetus to keep the men away from meddling outsiders meant that troublemakers and potential whistle-blowers found they were “needed” on board when the ship was in port. Such leverage, however, could prove most useful for seamen if they were able to keep their protests at a controlled and nonviolent level, so as to avoid legal consequences at journey’s end. Seamen frequently tried to keep protests from escalating out of control by presenting officers with

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fi rm but reasoned and limited demands, and by being careful to make clear their calm and careful approach, both to ease officers’ fears and to avoid dire legal ramifications once they got ashore. In his guidebook for men and officers, William Sullivan urged the men to put their petitions into writing. “If any among them can write, he should honestly and truly put on paper, the true facts as they happened at the time, and bring this record home. They will be sure to get justice.”47 The written word, argued Sullivan, meant less of a threat to the officers, and thus was a more likely way to effect a response amenable to all parties. In several cases, crews did just that. Faced with a captain they feared had gone mad and suspected of wanting to destroy the ship by “putting fi re to the magazine,” twenty-one members of the crew of one ship traveling from Bordeaux to Philadelphia in 1815 signed a note to the mate requesting that he take control of the vessel for the safety of all aboard.48 The written word provided a comforting coherence even when the men did go well beyond the bounds, as in the spectacularly bloody mutiny on board the New Bedford whaleship Globe in 1824. After the mutineers crushed Captain Thomas Worth’s head with an ax while he slept, the mutineers maintained the ship’s log, which became a key piece of evidence against them. Additionally, the lead mutineer’s brother, George Comstock, published an account of the mutiny in the late 1820s,49 and two other survivors published a popular tract based on their experiences.50 The ship’s log represented a central record of events aboard ship, and anyone with an eye to the future consequences of their actions would need the log to explain or justify their behavior. Controlling the log meant controlling the narrative in court later. Captain Lemuel Harvey used his ship’s log, kept by the mate, to try to prove that his crew was conspiring to misstate the facts surrounding the death of the steward, Richard Good.51 On board the Ontario, a Liverpool packet ship, in 1855, Captain William H. Wood had to turn to the passengers for help in shorting sail when the men refused duty. After an agreement was reached between Wood and his crew, he wrote the entire episode in a carefully worded account in the ship’s log and required all of the mutineers to sign the logbook to acknowledge the account’s accuracy before he permitted them to return to work. The logbook again proved critical in securing a conviction against members of the Ontario’s crew, who were given sentences of between one and three months. A doctored log was central in solving a particularly sanguine mutiny on board the Saladin in 1844. A “Captain Fielding,” who had been stripped of his command and forced to sail as a regular seaman on board the Sala-

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din, en route from Valparaiso, Chile, to Halifax, Nova Scotia, conspired with his son and the ship’s steward, a peg-legged Irishman named George Jones, to seize the Saladin from Captain “Sandy” McKenzie and to “get to the States, purchase a small vessel, and carry off the property to be squandered in a foreign land.”52 Fielding, an American, had lost his command and been put in prison in Peru for smuggling guano. After escaping prison, he wanted to return to British territory, and Captain McKenzie offered him free passage. From the beginning of the journey, however, McKenzie and Fielding quarreled, and Fielding began to plot against McKenzie. Promising them a share in the contents of the hold, Fielding convinced several others of the crew to join with Jones and the two Fieldings in violently seizing the ship from McKenzie, who was by all accounts a vicious man, a drunkard, and a dreadful captain. At fi rst, George Jones went to Captain McKenzie and tried to warn him of Fielding’s diabolical machinations, but the captain dismissed Jones, saying, “You damned Irishman, I want to hear nothing.”53 The men waited until night and then called the mate, F. Byerly, to the deck. He was set upon with axes and a “Carpenter’s mall” at the urging of Captain Fielding, who then supervised the throwing of Byerly’s body over the rail. Fielding called the watch, and the mutineers attacked the men as they came up from below. Captain McKenzie barricaded himself in his cabin and held the mutineers off with the aid of his faithful “Brown Dog” for a time, but Fielding fi nally broke in and dispatched them both with an ax.54 Once the bloodletting had ended and the ship was secured, the rest of the men were ordered out on deck and told either to pledge allegiance to the self-appointed Captain Fielding or perish. He then gave out grog to all hands, leading to nervous braggadocio: “They began to brag which was the best murder, laughing and jesting with each other.”55 Fielding proposed a second plot to John Galloway, a nineteen-year-old seaman who was the son of a Scottish bookseller. Fielding suggested that they should kill the rest of the crew, excepting Fielding’s son. Always one to hedge his bets, Fielding made a similar proposal to another crew member, named Anderson, but Anderson alerted the rest of the crew, who seized Fielding after discovering two pistols he had hidden in reserve. Fielding was thrown overboard the following morning. The men intended to scuttle the ship, save themselves in the longboat, and claim shipwreck, but too much drink led to the vessel foundering upon the rocks before they were able to sink it. As the British authorities investigated the stories the shipwreck survivors told, mentions in the log and clothes found on board identified as

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belonging to a Captain Fielding made it necessary to explain his absence. The men claimed he had died at Valparaiso and that they were returning his belongings to the care of a friend. This story seemed plausible, until an unidentified sleuth among the investigators turned up a sales draft dated February 7—the day before the Saladin left port. If Fielding had been exchanging goods the day before they left, he surely expected to continue aboard the ship, which cast suspicion on the story that he had died before leaving port. Confronted with this evidence, two of the mutineers, William Carr and John Galloway, confessed and were acquitted while the others were sentenced to death.56 Though the cases of the Globe and the Saladin show the extremes to which a crew dissatisfied with the master might go, more often than not, even when seamen turned to resisting their officers forcibly, they tried to do so in a limited and controlled way. Disobeying orders or stopping a punishment on board was a far cry from butchering officers and throwing the remains overboard. Often the crew tried to walk a line: applying enough pressure to the officers to effect change but not so much that the situation resulted in violence on either side. Of course, most cases in which this negotiation took place are lost to us, as the business of the ship simply adjusted and continued without resort to courts or consuls. However, even in cases that ended up before the courts, attempts at moderation can be seen. The crew of the Henry Kneeland tried to return the advance money they had been paid to avoid shipping out.57 The crew of the whaling ship Copia wrote the following letter to the fi rst mate: To the First Mate of the Ship “Copia” Sir: Shocked at the conduct of our Captain we the crew connected together as one man wish that this ship be taken into the nearest port so that we may have the Captain’s conduct investigated by the American Consul and if on investigation he the Consul thinks fit to allow John Worth to remain Captain of this ship we the undersigned are determined to leave the ship, but if on the other hand he should give the command to some proper person we will stand by her and do our best to get a voyage.58

The crew went on to indicate that they would perform no whaling until the captain relinquished control, but insisted they were willing to perform all other duties of the ship.59 Here the members of the crew cogently

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expressed their specific concern, in this case that Captain Worth was unfit for command, and delineated the consequences of their demands not being met. They drew a clear distinction between their rational and measured request that the captain be removed by a lawful authority (in this case, the consul) and a mutinous uprising that sought to usurp the legitimate commander by force. In other words, the crew of the Copia saw themselves (and hoped authorities would view them) as petitioners rather than as mutineers. If written demands like those of the Copia’s crew were uncommon (though hardly unprecedented), there is no reason to conclude that the organized, articulate manner in which they expressed their concerns was unusual. Nor was their rejection of the captain atypical. The crew of the Lorena also tried to remove an officer they found unfit to lead them, insisting, “If the Capt. would send the 2nd mate away they would go to sea.”60 Thus, crews felt they could and should have a hand in who could and could not direct—and discipline—them. Numerous cases grew out of a perceived “bait and switch” about who would be the officers on board. Men signed on to ships with captains with whom they were familiar or who had good reputations among the men, only to fi nd the shipowners had made a change just before sailing.61 Several crews used limited protests to try to force a change in their working environment without resorting to violence. The crew of the Halcyon made their terms quite clear to Captain Daniel Thompson: “The crew replied that if they did not get more flour that they would do no more work than to get the ship into port.”62 Though the situation remained tense, the crew did not resort to violence in a six-month standoff during which the men refused to whale. Similarly, seamen aboard the Huntress, a whaleship from Massachusetts, told the captain they would do other duty, but that they would “refuse to pursue the business of whaling, unless the master would comply with a certain request or demand.”63 Although seamen often employed a modulated tone, their stance was frequently not heard or understood by officers. Despite the decidedly rational tone of the crew’s letter, the officers on board the Copia experienced the situation as volatile. Chief Officer Lewis Spooner indicated in testimony that the officers “did not think their lives safe on board.”64 More often than not, officers saw the risks of appearing to acquiesce to their crew’s demands as outweighing the benefits of a quick end to things. Busch notes that, for whale men at least, work stoppages were a losing proposition, ending in punishment almost 80 percent of the time.65 Although certainly a high-stakes game for seamen, revolt could meet

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with success. Robert McNally, pilot of the Lorena, noted that Captain Conway at fi rst attempted to appease his crew: “Captain tried to pacify them and said they should be well treated & nobody should be called out of his name.”66 Captain Russell Port indicated his willingness to compromise and appealed to William Merchant for calm: “I told him to keep cool and quiet and I would see that he had his rights.”67 Though the crews flatly rejected Port’s and Conway’s plea for mediation, the very attempt meant that compromise represented a real option for both sides. Captains offered settlement to several crews in hopes of getting them back to work without having to bring the matter before a court. In all likelihood, then, most successful work stoppages never ended up in court. Captains did well to consider the moderate demands of a crew, for court was a costly option for all involved. No matter what the difficulty, a trip to court reflected poorly on officers, in particular on the master. If charged with an offense against a man, even if not convicted, the officer ran the risk of developing a reputation for brutality in a certain port that could make it difficult and expensive to hire future crews, particularly in ports like New York with shortages of seamen. An officer who brought a case against the men risked raising the ire of the owners for the expense and of raising questions (both in the offices of merchants and in the dockside haunts of seamen) that he might not be up to the task of leading without the external help of the courts. Officers did not, then, treat lightly the possibility of heading to court, and frequently opted toward conciliation, at least initially. Captain John D. Gallagher, by all accounts a reasonable man, did offer his men the extra liquor they requested68 and, according to First Mate Joel Ashbury, only brought the case to the court because he had to answer to the owners for the ship’s being so far behind schedule.69 A criminal charge did not necessarily spell doom for seamen. Many cases ended with acquittals, or at least an entry of nolle prosequi (meaning the prosecution was officially dropped without resolution). Most frequently, unable to keep up with the glut of cases on its docket, the New York District Court made no ruling at all, not even officially to terminate the prosecution, letting much of the caseload simply drift away without resolution. The British jurist Sir James Marriott described the society of the ship as a place where, without the fi rm command of the master, “all is violence.”70 This violence was far from chaotic, however. In the most dramatic instances, violence and the threat of violence represented a dangerous but important tool for seamen in their dealings with their officers.

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When pushed, seamen brought the fight to their officers, challenging superior authority with superior strength and numbers. Though their attempts often met with disaster in the form of prison or even death, the potential for violence cast a pall over officers and no doubt stayed many an officer’s hand for fear of reprisals. If officers like packet Captain Samuel Samuels were right in asserting that seamen understood nothing other than the lash, much the same could be said about many of the officers.71 Like their counterparts on land, seamen defended not only their legal rights but also specific traditional claims of labor during a period of consolidation and change. Shipboard insurrection represented a coherent attempt by the men to renegotiate the terms of their labor environment. Through work stoppage and the threat and/or use of violence, seamen had a means (albeit a dangerous one) to articulate the boundaries of acceptable punishment and treatment. As time went on, the men argued for their legal rights with increasing knowledge and confidence, which, in turn, led to a renewed importance of their defense of conventional practices. The new support garnered from the law in the 1830s and 1840s allowed seafarers to press their advantage and defend not only these newly protected legal rights but a growing aggregation of conventions of the craft above and beyond mere legal minimums. With the law as a new ally, and the language of defense it offered them, seafarers returned to defending an expanding group of privileges based in custom rather than in law. In the wake of new legal professions, seafarers did not rely merely on the law as their new and only protector. Rather, men on American vessels returned to their initial line of argument with officers: that whatever the letter of the law, the conventions of the craft should rule. Defense of custom was necessary before the law was a reliable ally; it became increasingly useful, however, when it could be applied atop and beyond the explicit legal defenses. Hence, seamen came to rely both on written law and on the unwritten “forecastle law” of collective practice in their struggles with officers.

Pa r t I I

Honor

F

ar more was at stake in disputes on American vessels than the mere details of the work environment. The difficult, dangerous labor of seafaring may have sparked many altercations, and the law may have sought to frame the responses of participants, and then to adjudicate their actions after the fact, but in the heat of anger on the decks, it was often the unwritten codes of personal honor and workplace convention that helped determine how well (or badly) an incident would turn out. Would the men back down before the challenges of their officers? Would other seamen join with a mutinous compatriot? Often, the answers to these questions were determined not by law but by the personal relationships and public sense of honor and authority of the participants, together with unwritten codes of expectations for all involved. Clearly, much of what seamen and officers contested, negotiated, and fought over in cases of shipboard revolt had roots in attempts by both sides to assert control over the nature of labor on the ship. If nothing else were at stake, however, considerably fewer incidents would have gone as far as they did. A mere disagreement about labor cannot explain the savage brutality on the ship Colonel Taylor, when a seaman cut off the captain’s hands with an ax to loose his grip on the rigging and send him plummeting to his death.1 Nor can poor food explain the senseless rage of the captain and mate of the David Pratt, who still “kicked and thumped” at the ship’s cook “while he was laying on the deck.”2 Something larger was at stake than just the details of the seaman-officer working relationship. Cases became violent when they slipped out of the realm of contention over the logistics of labor on the ship and into the realm of personal pride and honor. When seamen or officers found their credibility as men called

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into question, violence became their only satisfactory means of settling the dispute. The law may have sought to dictate how ships would operate, but the distance from a federal court to the middle of the South Pacific was long and the connection tenuous. Law alone could not frame how ships operated on a moment-to-moment basis. In order to understand the ways in which seamen interacted with the law, and the powerful but subtle ways in which they took a hand in their own governance, it becomes necessary to examine the modes of authority beyond mere law. In practical terms, ships functioned not through the law written in Congress and interpreted in federal court, but through a highly conformative, deeply gendered culture that placed personal honor and reputation at its center. Conceptions of honor, however, are not historically stable, and seafarers of all ranks found themselves negotiating among codes of behavior and gendered defi nitions of self-worth and public reputation that were being challenged, reasserted, and reconfigured throughout the antebellum era. Ashore, scholars have noted how defi nitions of what constituted manly, honorable behavior differed by class, region, and occupation in the early Republic and antebellum America. 3 All of these competing defi nitions and codes went to sea, filtered through the particular realities and traditions of that environment. Even when seamen defended their actions by invoking maritime traditions, those conventions were shifting in use and meaning. Personal honor and craft conventions developed along with, sometimes in resistance to, and sometimes in concert with the legal developments described in part 1. At times, honor was used to justify rejection of “mere” legal rules. Seamen and officers both used older notions of honor to resist encroachments by the law upon their autonomy and authority, as when officers complained that resting their authority in the federal government undermined them dangerously in front of the men. In other cases, the law became a justification for the men to push for an expanding defi nition of “traditional” standards, as when seamen resisted the lash well before it was illegal, or when officers threatened men with a reduction to the statutorily mandated rations. h “Honor” examines the way disputes were fueled and shaped by the gendered code of masculine identity and convention beyond law that governed shipboard life. Long before the national period, personal honor was

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essential to the way things operated at sea, serving as a set of personal expectations and cultural conventions that would come later to be known as “forecastle law,” which, along with the law of statutes, courts, and consuls, helped frame how disputes were settled and the way eruptions occurred at sea. Just as changes in the law reshaped the way men and officers understood their roles and actions at sea, the shifting, confl icting defi nitions of manly honor that informed seafarers in the early Republic meant that even claims to extralegal “convention” as a justification for behavior at sea are historically contingent in dramatic and complex ways. Indeed, as many scholars have argued, defi nitions of honor and manhood were hotly contested in the early Republic, both ashore and at sea, and seafarers of all ranks found themselves reacting to those changes. For officers as well as men, the way honor operated at sea both reflected and struggled against developing antebellum understandings of gender ashore. Scholars sometimes romanticize antebellum seafaring as a “traditional” workplace in which the power of cultural convention fought against modern inroads from technology, legal changes, or the rise of capitalist labor relations, but such a vision presents far too static a portrait of the way convention and personal honor operated at sea. For seamen, defi nitions of honor were particularly fraught, and therefore particularly important. They had traditionally been seen as both exemplars of and exceptions to extremes of “manly” behavior.4 Moreover, their distance from home precluded adherence to the rising antebellum middle-class norms. Although not all were rootless, international drunkards, enough were to give shape to the stock character of Jack Tar, who is manly in some ways (drinking, fighting, carousing) but childlike or diminished as a man in others (not in control of his own life or employment and subject to humiliating punishment). For some, the seamen’s code was political—a definition of “freedom” that rejected middle-class stability and thrift. Other mariners simply could not live by that new, rising standard, and, like many working-class men in the Jacksonian age from all over, held fi rm to a defi nition of personal honor as the most essential (sometimes the only) possession of a man and the wellspring of his worth. Officers’ identity shared characteristics with that of the men who sailed before the mast, but simultaneously they had to negotiate the shifting meanings of “honor” in antebellum America. They not only resisted the leveling spirit of seamen of the age but also had to contend with the collapse of social deference and “gentlemanly” status as the legitimization of their authority. The changing, contested, multiple meanings of mas-

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ter—including mastery over others, mastery of one’s own passions, and mastery of the skills of navigation and sailing—left officers with a complex and changing social terrain on which to operate. Antebellum American seafarers, both regular tars and officers, operated in a highly gendered environment. Because the ship permitted near total visibility of one another’s actions, men’s performance of their role on the ship could be constantly scrutinized, not merely for the skill with which they did their work but also for how they comported themselves at work and play. In an oft-unverifiable community that was re-formed sometimes at each port of call, behaving in accord with codes of personal honor, related to but distinct from those ashore, became central to the basic functioning of shipboard work and community. Moreover, because adherence to behavioral norms was, in essence, shorthand for assessing peers’ skill, the conformity had a very important safety component. For men, camaraderie and adherence to social norms were necessary to do their job as well as to defend their concept of their rights, which were bound up with both personal honor and expectations of individual rights. h Chapter 5, “Forecastle Law,” examines shifting claims of manhood, convention, and how the expectations of the craft were influenced by the legal developments discussed in part 1. It also looks at the way changes in the defi nitions of honor ashore impacted seamen as they struggled to maintain useful personal and craft identities in an increasingly individualistic and democratic age. Forecastle men not only used the new legal apparatuses available to them as they defended the rights and conventions of their craft, they also made use of extralegal justifications drawing on both new and old conceptions of personal worth and honor, and built a set of expectations for their workplace and society beyond the mere letter of the law. Chapter 6, “Good Officers Make Good Men,” explores the ways officers found themselves caught between competing defi nitions of honor in the early Republic. For officers, honor was as important as for regular tars, if not more important, since they had to meet and exceed, in complex and contradictory ways, the expectations of the men under their command. Perceptions of honor served as an essential component of officers’ justification for command. Their honor legitimated their authority and served, they claimed, as the fi rst and most important basis for their authority. Indeed, the law, which (to jurists and congressmen, at least) sought to delin-

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eate and bolster the authority of ships’ officers, instead undermined their authority, defi ning their power not as something inherent in their “mastery” but in rigid legal terms, dependent upon an external legal authority. Officers, many of whom were from New England, found themselves caught between different defi nitions of mastery, from being able to master the wider world to being able to master themselves. Yet they had to master other men, sometimes with personal force, even as Victorian sensibilities (and increasingly, the law) pressured them to be reserved and temperate, and to keep their passions in check. In short, they had to guard their honor and manifest their manliness by two different standards in response to two very different sets of expectations.

Chapter Five

Forecastle Law: Personal Honor and the Defense of Custom at Sea

Seamen are a peculiar class, and have their own peculiar characteristics. Perhaps there is no other class among us, so strongly and distinctly marked. —Frederic Sawyer, Merchant’s and Shipmaster’s Guide1 Though they were right, it wasn’t their opinion the law cared about. The law was made for owners, not for such as them. —Charles Dickens, “We Mariners of England”2

O

n the packet ship Fairfield’s return run to New York from Liverpool in 1840, a discussion between a seaman and the mate about how to wash the decks quickly turned violent. Another of the crew “heard the mate sing out to [Harris] to wash the decks. He replied he was doing it. The mate told him to do his work. He said he was doing it. The mate then said you cannot do it. Harris said he did not come here to learn. With that the captain came on deck and went up to Harris and shook his fi nger in his face and said I’m going to shew you what I can do now and sung out to the Steward to bring his pistols up.”3 Reasonable men do not resort to fi rearms because of a disagreement over swabbing techniques. Even Harris did not seem to comprehend the level of anger the event sparked. While the officers were preparing Harris to be flogged, one of the men said, “‘What are they going to flog you for, Harry?’ He said ‘I don’t know.’”4 Encoded in this small dispute over Harris’s mopping technique was a far larger one: how much control the officers could exert over the specific details of labor. The minor battle between Harris and his mate quickly escalated from words to threats of pistols to a flogging, not because of the cleanliness of the deck in and of itself but because the deck—and the tech101

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nique used to keep it clean—played a part in a larger, subtle negotiation that ranged from the most routine of duties to the legitimacy of all authority at sea. Swabbing mattered. It mattered because it was one of many opportunities for officers and seamen to renegotiate continually the state of order and authority on board. Additionally, the officers of the Fairfield used Harris as an object lesson, demonstrating to other potential shirkers among the crew that resistance to their authority would not be brooked. Seamen, like their counterparts on land, attempted to hold the line against the breakdown of artisanal labor traditions, and shipboard insurrection represented one of the critical battlegrounds of the fate of labor in the nineteenth century. The availability and the unavailability of outside authority were put to use by seafarers in a number of ways to defend their position as laborers, even as the rise of the power of contracts and the market revolution reduced the status of workers. Seamen employed a number of tactics—legal and illegal—to maintain, and on occasion even strengthen, their position. In their attempts to reorder their working conditions, seamen had several dangerous tools that they could threaten to use or actually wield. Despite encroachments of federal law into the governance and discipline of ships, once a vessel pulled away from the harbor, the hold of external legal authority became tenuous, and the specific workings of the ship became open to renegotiation by a set of rules beyond and outside mere law. For such extralegal arguments to be possible—especially so early in a voyage—a code of honor, a grammar of seafaring behavior, had to exist and be understood, seaman-to-seaman and vessel-to-vessel. Seamen of the early Republic defended not only their growing legal rights but also their sense of personal and collective honor. According to reformer and missionary John Truair, “Seamen are not only men, but they are, in many things, men of a noble and generous character, to be met with in few other men. They are men of feeling, and that often of a peculiarly tender kind.”5 Although Truair sought to defi ne the character of flesh-and-blood American seafarers, even in his era, Jack Tar was developing into a literary trope so overdrawn as to be comical (or at best suspect). At the very least, such enduring stereotypes rob real tars of their individuality and their historicity. Jack, like all actors in their own histories, changed over time. His outlook, his beliefs, and his background are all not nearly so unchanging as the popular depictions suggested, even if the images of seafarers remained tenaciously consistent in antebellum America.6 Nevertheless, such images hold power, however oversimplified they

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may be. After all, the archetype of Jack Tar owes his origin to the way seamen did, in fact, walk, talk, dress, and act. Outsiders may have drawn their images of Jack to demean or demonize seamen or set them up as objects of pity—as dangerous children in need of control and redemption— but seamen themselves fostered the coherence of their craft’s image both as a defense against the wider world and as a metric to separate the true seamen from the greenhorns and rosewater sailors. The mythological Jack Tar represented an ideal, and a standard by which other seamen measured themselves and their shipmates. Seafarers built their forecastle culture to: (1) combat anonymous and unverifiable aspects of shipping with strangers; (2) mitigate uneasiness brought on by the racial, national, and ethnic differences among crews in this most diverse of antebellum workplaces; and (3) repudiate the “unmanly,” dishonorable aspects of a profession marked by a potentially emasculating lack of freedom and self-determination, as well as by many day-to-day duties (like sewing and cooking) gendered as “womanly.” They judged not only themselves but also one another by how well they walked, talked, drank, dressed, fought, worked, and lived like seamen—in essence, how well they “performed” the role of a seafarer. As a result, one’s personal honor (essentially a measure of the man) had to be defended at almost all costs.7 The necessities of a ship’s workings meant that, despite how often few if any of the crew would know one another, a viable community had to be formed almost immediately. The mechanism that enabled these communities to congeal was a consistent, coherent, and rigidly conformative seamen’s culture based on performed behavior and masculine identity. Thus, a shared culture and language of masculine honor offered a means of collaboration for men who did not know one another but whose workplace forced them to rely on one another for their survival. Maritime workers received important information about the competency, character, and experience of their peers by their behavior, dress, and language. An adherence to norms became the essential way for a newly signed crew to take one another’s measure. In the forecastle, particularly in a voyage’s early going, a man was judged by the fluency with which he played the role of “Jack Tar” for the audience of his officers and shipmates. A heavily gendered and rigidly enforced code of conduct became the cultural glue that held the social order of the ship together for both officers and the men before the mast. Antebellum shipboard culture was a highly ritualized environment in which both seamen and officers had set roles, governed by convention even more than by law. Guidebook author Frederic Sawyer noted in 1840 that the shared dangers and deprivations of life

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at sea tended to make seamen alike. According to Sawyer, “The natural effect of their home on the deep, with its unchanging scenery unless broken by the tempest, and its regular routine of duties, except when interrupted by calamity, is to assimilate their characters to each other to a remarkable degree. There is connected with their calling peculiar dangers, privations and sufferings; and they have their own peculiar habits, and manners, and distinctive modes of thought, of feeling, expression and of action.”8 A coherent and surprisingly stable defi nition of manly behavior and honor played a crucial role in the seafarers’ sense of self in the antebellum period. Although gendered identities are always contingent and in flux, tars hewed to a vigorous, rugged defi nition of manhood with strong links to the masculine culture found in other working-class communities in the early Republic. Seamen—because of the ways in which they were proscribed in their actions and freedoms by the realities and legal strictures of their profession—continued to assert an early defi nition of manliness that championed mastery over others and over the outside world. By contrast, middle-class reformers, particularly in the Northeast from the Revolution to the Civil War, sought to replace this defi nition with one that promoted self-restraint, piety, and duty to family as the true measures of a man.9 The men before the mast asserted a defi nition of manliness that they could not, within the confi nes of their workplace, embody. According to Mark E. Kann, for respectable folk in the revolutionary era and early Republic, “a ‘man’ was an independent agent of his personal and public destiny.”10 By that standard, most seafarers could not measure up. They were certainly not masters of their surroundings. They lacked the economic resources to embody the early American defi nition of manly independence.11 In the workplace, they could be beaten, flogged (until 1850), starved, frozen, worked to exhaustion, and humiliated by the “sirs and misters” who ruled them at sea. They lacked the legal freedom to quit their jobs if they felt they had been treated in a way no man should bear. While signed onto a ship, they were, in the eyes of the law, “wards,” less than men, on a level with orphans and elderly widows, objects of pity and charity, in need of care. Given these limitations, it is not surprising that seamen offered a boisterous, aggressive assertion of their manliness in the face of such institutionalized emasculation and infantilization. In response, seafarers sought to assert their manly control to themselves and to one another in tactile and direct ways. They fought, swore, drank, laughed at danger, showed indifference to tragedy, and defended their small terrain of personal honor and mastery with passion. Much has been written about the declining “dignity” of labor in early

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industrial America.12 The often violent defense of that dignity, both at sea and on land, was suffused with a vision of manly autonomy built out of notions of self-reliance and dignity. In short, the most important thing seamen sought to defend in the face of encroachments and degradations by officers sits at the core of Isaac Benton’s assertion to the mate of the Lorena: “I am a man as well as you.”13 In the aggregate, the collection of traditional practices, duties, and rations to which most vessels adhered was known as “forecastle law.” Forecastle law represented the extralegal rights of the craft, and just as the actual law was contested, adjusted, and expanded during the antebellum era, so, too, were the specific requirements of forecastle law. Prior to the growing power of code law (and its judicial interpretations) on American vessels, seafarers defended their rights as they understood them fi rst and foremost in terms of conventions of their craft. As the law came to their defense in the wake of new legislation of the later antebellum period, seafarers embraced this new champion, but did not give up on the power of convention to govern their treatment on the ship. Often, conventional practices outstripped bare legal requirements, and seamen wedded their new reliance on federal law with their older reliance on craft traditions into an expanded and augmented forecastle law in the last years before the Civil War. An anonymous contributor to Atlantic Monthly put the balance of authority at sea thusly: “The sea has its own laws,—the common and unwritten law of the forecastle, of which Admiralty Courts take infrequent cognizance, and the law of the quarterdeck, which is to be read in acts of Parliament and statutes of Congress.”14 Like their counterparts ashore, seamen struggled to defend the dignity of their craft and, by extension, their own dignity. Though, as Jeffery Bolster notes, “the American sailor was not technically a free man, or his master’s equal before the law until 1915,”15 seamen asserted the rights they did posses aggressively, often framing their argument in terms of a defense of themselves as a fraternity of craftsmen rather than appealing to their legal rights. Particularly in the period before new federal laws solidified protections for seafarers in the 1830s, seamen often challenged their officers in highly gendered terms. Although the manly world of the forecastle, and the performed role of “seaman,” remained important throughout the antebellum period and beyond, in later years, it served as one of many rhetorical arguments that could be deployed by seamen to adjust the treatment they received, but it was never wholly eclipsed. As the law grew in its usefulness as an ally, some seafarers still chafed at relying on an outside force as their champion rather than their own mettle. As was also true for terrene

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working-class men, seamen saw reliance on their own physical mastery as an important aspect of their manly autonomy, even as their reliance on the law increased. “One of the most insulting epithets which a sailor could apply to another was to call him a ‘sea lawyer,’” noted former clipper captain Arthur H. Clark.16 The fact that “sea lawyer” became an insult to be hurled at shipmates too fearful to defend their own honor directly illustrates the ambivalence seamen felt toward their new protector.17 The law alone was insufficient; men also had to defend themselves and their own honor, both collectively and individually. Seamen may have resisted the idea of relying on the law as their only recourse, but they did not reject political assertions of their equality. They suffused their sense of masculine honor with the ever-expanding rhetoric of equality and inclusion in American life. Seamen echoed fi rst the revolutionary rhetoric of social leveling found in Thomas Paine and Thomas Jefferson, and later in the assertions of autonomy and equality championed by Jacksonians. In doing so, they moved from a defense of themselves, their rights, and their autonomy through claims of independence and power to assertions of citizenship, and invoked their rights as equal stakeholders in the nation, much the way up-country southerners and immigrant northerners did through fealty to the Democratic Party by the 1840s.18 At the same time, seamen also continued to assert masculine honor in ways that prized physical mastery of their surroundings and personal excess rather than the growing desire for restraint and self-mastery that came to defi ne middle-class notions of morality and honor in the antebellum north.19 The “forecastle law” of convention and tradition did more than merely assert some specific basic extralegal rights for seamen. As important as those small freedoms and privileges were, the defense itself asserted that there were limits on officers’ power—that seamen refused to accept the ship as a “total institution.”20 That their working conditions were far more limiting and far more brutal than even the harshest forms of other free labor on land only meant that seamen had to defend their honor and individuality that much harder. The primary right being defended, then, was the right to the dignity afforded a free American man. A probably apocryphal but still telling story recounted a group of seamen coming politely but fi rmly aft, warning the master “‘so look a-here. If you swear at one of us, he’ll swear back. If you strike one of us, he’ll kill you.’ This was the forecastle law stoutly laid down.”21 Indeed, Richard Henry Dana touted his 1841 guide to sea life and labor, The Seaman’s Friend, by noting that it included “the customs which long usage has made almost as binding as law.”22 This forecastle law, “almost

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as binding” on the decks as actual law (and in some cases, more so), continued to vie for authority with the letter of the federal law throughout the antebellum years. Like officers, regular seamen fought for the maintenance of their expansively defi ned customary rights of craft that reached beyond the protections of any statute. Unlike their officers, however, seafarers in the 1840s and 1850s were able to defend these customs, while the officers found their appeals to traditional practices ever more circumscribed by law. Whether explicit rebellion or a more subtle testing of limits, such negotiation began as soon as ships weighed anchor, and sometimes even before. Seamen and officers, anxious to set a tone that would determine how the impending journey would go, often did not even wait until they were beyond the reach of land-based authorities before they began this process of testing limits and defi ning boundaries, which is why the court’s dockets are replete with cases stemming from incidents that began before ships left New York Harbor.23 The convenient availability of the courts and other authorities to intervene in altercations so close to shore skews this number slightly, but for a voyage to go so wrong so quickly suggests that both officers and men took advantage of early precedents. From their fi rst moments on board, both sides looked for weaknesses in the façade of the other. The performed aspects of shipboard life—posturing, disciplining, and sizing one another up—began the instant men stepped aboard. Officers and men often quarreled about the specifics of how work was to be done. In 1857, Captain James Cole had numerous difficulties with the quality of work he received from his crew on the Sartelle, and believed that by doing shoddy work, the men sought to take advantage of him and the ship.24 Work slowdowns and intentional malingering served as subtle but powerful tactics the men could use to push back against officers’ authority.25 In a less subtle negotiation, the crew of the packet ship Cambridge of the famous Black Ball Line rioted while the ship was towed away from its berth on Beekman Pier in lower Manhattan in 1848. One of the men, Austin, had arrived on board drunk and was alone in the forecastle as the others set about preparing for departure. According to Captain George S. Peabody, “I told him [the mate], ‘If that was the case, to get him out on deck and work the rum out of him and let him attend to his duty,”26 showing the drunkard and the other men that Peabody demanded work of his crew, self-inflicted ailments notwithstanding. The mate entered the forecastle to bring Austin to duty, but Austin resisted. The mate called for assistance from the captain and the second mate, and the three struggled

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to restrain the belligerent man. “In the course of this fray, he gave me two or three pretty severe kicks, and one blow to the face which made my nose bleed,”27 noted Captain Peabody. With Austin restrained in irons, the officers returned to the deck only to fi nd that the men would not work. Captain Peabody continued: “After I thought they had sufficient time to reflect upon their course, I told the mate to call them all aft on the quarter deck. They came aft, and I then took them man by man, and asked them if they would go to their work? . . . And all the prisoners told me plainly that they would not . . . because there was a man in irons on board the ship.”28 With his hand forced, the captain had to flag down a federal revenue cutter to help bring the men to authorities on land. They had been on board only three or four hours before the altercation between captain and crew erupted.29 On the Cambridge, the men had a specific, concrete objection: the use of irons to confi ne Austin. Both sides tried in the early moments of a journey to set a tone and secure any advantage that could be gained. Thus, a small incident carried great weight. Men like those on the Cambridge watched carefully to see what kind of officers they would serve under, and to make clear their limits early on so violence could be avoided later. Here, the men affirmed a conventional prohibition against putting men in irons—not a legal one—as they asserted their authority in negotiations with their officers. Renegotiations were frequently fi nancial, with the men seeking to raise their wages or augment their pay with “bonuses,” sometimes coerced from the officers. Just as captains “encouraged” men to jump ship (and by doing so, forfeit wages) in ports where seamen were cheap and plentiful, seamen exploited their advantage, either at sea or in ports where a shortage of qualified tars meant a more lucrative berth could be found with ease. In an 1841 charge of assault brought against Charles Smith, fi rst mate of the Rienzi, the defense commented that “the forecastle men were not entitled to much credit, because an examination of the testimony would show that they had combined together to wrest money from the accused for their mutual profit.”30 Requests for more money came frequently enough that by the 1850s, the courts ruled that, if the request was made under any duress, the captain was not bound by a pledge to raise wages. 31 On rarer occasions, even the mates pressured the masters for additional monies. William A. Bowers, who signed on as mate of the Powhattan in 1837, entered into an extortive “renegotiation” with Captain George McCerren. Bowers, by all accounts a disagreeable man, explained to his new captain, “That very shortly before leaving Liverpool . . . he had made the

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last captain he was with (Capt Davis) pay him the said Bowers fi fty dollars to leave his ship, and that he was glad to get rid of him so.”32 Though Bowers’s move to shake down his captain was unusual, his case illustrates an unsubtle version of a common tactic. Further, Bowers’s case suggests the extent to which the potential for violence lay beneath the surface of all such negotiations. As part of his appeal, Bowers let it be known that he was arming himself “with two pistols and a dirk” due to a disagreement with the mate from his previous berth, making clear that he was potentially violent. James McCabe, one of the crew, asked, “‘You really wouldn’t use those pistols if you met that man.’ To which Bowers replied ‘I’d be damned if I wouldn’t.’”33 Ironically, it was Captain McCerren who found himself before the court, after the escalating situation with Bowers led him to shoot the mate. As the growth of the United States’ merchant marine began to outstrip the available supply of seamen in the major ports, particularly New York, seamen had increased leverage, both ashore and at sea. The number of oceangoing packets from New York jumped from four in 1820 to thirty-two by 1825, and the total number of packets, both international and coastal, climbed from sixty-eight in 1830 to eighty-four by 1855.34 By 1838, 90 percent of US international commerce traveled on US-flagged vessels. 35 Coupled with the increasing pull of western lands (and, after 1848, particularly the California gold fields) for young, able-bodied men, crews became harder to come by and even harder to keep. 36 In fact, the lack of experienced seamen was on occasion a serious problem in American ports, increasing in the boom years before the Civil War. Numerous sources bemoaned this lack of native-born seamen and proposed various remedies to correct the shortfall. 37 With numbers more in their favor, seamen expanded their demands from securing their legal rights to securing a list of customary rights, the most important relating to food and alcohol. Claiming that the conventions of the sea mandated food and conditions above and beyond the basic legal minimums, seamen pressed their advantage to secure “traditional” portions and work conditions, exceeding legal requirements. So-called forecastle law, the law of tradition and convention among the men, could have as much impact on the governance of the ship as government regulations, particularly when the men had the advantage of a diminishing pool of skilled workers. In a florid recollection of antebellum sea life written in the 1880s, Elbridge Brooks noted, “A journey has smooth sailing only after ‘Fo’cas’l law’ had been recognized and respected.”38 Even if Brooks’s

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nostalgic memoirs of sailing’s golden age are suspect, more contemporary sources speak to the power of maritime convention generally, and forecastle law in particular. 39 Men at sea on American-flagged vessels built on the advantages gained by congressional acts and used shipboard protest to reorder the terms of work at sea, claiming artisanal rights beyond those found in code. In particular, the men demanded food rations well above legal minimums. Officers would threaten the reduction of food rations down to the letter of the law as a form of punishment, as in 1841, when Captain Reuben H. Paine “gave the steward direction not to give the crew hash for breakfast, which they were in the habit of getting, and this direction was given as a kind of punishment to the crew for having thrown some provisions overboard.”40 Paine’s actions backfi red, however, when the crew of the Binney refused to do any duty and retreated into the forecastle. The captain upped the ante, sealing the crew in their quarters and explaining that “they was [sic] not to have any thing more until they were willing to go to their duty, and behave themselves.”41 The men returned to duty, hashless, after about fortyeight hours below. Even a special treat could mean trouble if it came at the cost of any part of the men’s usual fare. During his journey, Dana noted that a sweet “plumb duff” for Christmas dinner led to confl ict as “the crew quarreled with the steward because he did not give us our usual allowance of molasses to eat with it. He thought the plums would be a substitute for the molasses, but we were not to be cheated out of our rights in this way.”42 In another incident, Alexander Morrison, mate of the Fairfield, related a confrontation over food between crew and captain: [The Crew] demanded of the Captain more pudding. The captain asked them if they had not enough of Potatoes, Beans, and Beef besides. They said they had. The captain said he had given them as much flour as he had ever given his crew before and if they were not satisfied with that, he would give them the United States allowance. They said they would have enough to eat, if it was on board the vessel, whether it was the United States allowance or not. The captain then gave them a copy of the marine laws to show them what they were entitled to. They then went forward, took the paper with them and every thing was quiet for that day.43

Seamen and officers like those on the Fairfield fought not only over the specific legal workplace requirements—in this case the minimum “United

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States allowance” for food—but beyond it over a set of shifting customary expectations about food, drink, and living and working arrangements. It is not hard to see how poor food, leaky or unseaworthy vessels, travel to hostile southern ports for black seamen, or unreasonable or irrational orders from officers might prompt trouble, but men and officers often came to blows (or at least threatened them) over far more mundane issues. The minutiae of ship life took on important symbolic character in the ongoing subtle negotiation over how the ship would be governed. In particular, men balked at attempts prompted by temperance reformers to eliminate the traditional grog ration, which had standing in both law and convention. Beginning in the 1820s, “dry” ships and masters became increasingly common, much to the dismay of many of the rank-and-file seamen. Reformers saw such temperance ships as an effort to improve both the physical and spiritual health of the men in the forecastle. Though some captains and owners were earnest in their devotion to maritime temperance, others simply saw it as a means of saving money in the outfitting of their vessel.44 Seafarers resisted both the paternalism of the reformers and the parsimony of the owners, and men fought any rollback in their alcohol rations, both because alcohol played an important part in shipboard recreation and because diminishing the rations was tantamount to a pay cut. Dana noted in Two Years before the Mast: Sailors will never be convinced that rum is a dangerous thing, by taking it away from them and giving it to the officers; nor that, temperance is their friend, which takes from them what they have always had, and gives them nothing in the place of it. . . . On the contrary, many of them look upon the change as a new instrument of tyranny.45

For many seamen accustomed to fighting the cold and damp of their duties with alcohol, the grog ration represented not just a job perk but also a workplace necessity. In addition to the many seamen who did not wish to work without it, there were many who simply could not. As Joseph Windust explained in his deposition from a case of revolt in New York Harbor, “They must have grog or they would all have the horrors.”46 The records of the Seaman’s Hospital on Staten Island hold numerous accounts of the ravages of alcohol and the dangers of its sudden removal, and the records of consular offices, like that in London, show the considerable cost that was incurred for treating seafarers handicapped by drink or withdrawal.47 Although temperance activists had some converts, many seamen saw

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alcohol as a workplace necessity, just as had laborers on land before reform efforts removed liquor from their hands, at least during working hours. Defending their grog ration was, in fact, one of the great successes of seamen’s defense of their customary rights. Temperance ships made little headway, despite the enthusiastic efforts of reformers on land. Even when they did sign articles on a temperance vessel, the men often did so not out of conversion to the cause but out of desire to secure an otherwise desirable berth. Indeed, many seamen went out of their way to drink when on shore leave from their temperance vessels, and, particularly among American whalers touching at Honolulu, temperance was clearly in abeyance when in harbor.48 Reformers saw alcohol in the same light as flogging, as conventions that degraded seamen and had little place in the ships of a modern, libertyloving republic.49 Most seamen saw the situation quite differently. They may have agreed with reformers that flogging was a demeaning practice, and to be used sparingly if at all on merchant vessels, though they resisted the emasculating tone reformers used in linking them with other suffers of corporal punishment like slaves, children, and prisoners. The infantilizing tone of reformers was doubly objectionable, however, when applied to alcohol. Seamen understood that not only was reducing or eliminating alcohol a breach of the customary rights of their craft, it was a pay cut, and the denial of one of the few things that made the cold, harsh, and wet workplace bearable. Officers and men clashed regularly over provisions. How much and what kinds of victuals the men were “supposed” to receive became points of continual renegotiation on every voyage. The law imposed certain minimums, but the men expected much more. Indeed, when the men seized control of a ship, the first thing they usually did was avail themselves of the ship’s stores, as was the case in a revolt proceeding in 1853. When the men briefly took the ship, their fi rst priority was to slake their cravings: “They said they were going after tobacco & grog.”50 Officers had to maintain a delicate balance between making sure that the rations would hold out and keeping their crew happy. Both sides regularly appealed to customary as well as legal standards to justify their demands. John Williams, a seaman on the Swift, a schooner from Boston, relates a story similar to that of Harris on the Fairfield: “The Chief mate, Frederick Yeizer, told John Smith to sweep the deck, which order was obeyed. Yeizer told him that was not the way to sweep. Smith answered that he had never learned or seen any other way. The mate then said, ‘I will learn

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you how to speak to me, and how to sweep better’: then struck him about the head with a broomstick, and knocked him down on deck.”51 Though the examples of the Fairfield and the Swift show that even the most mundane aspects of work at sea could become a battleground between the men and officers, one task seemed to provide the most potential for confl ict. Men taking their turn at the wheel often met with criticism from officers, and such disagreements frequently led to hostilities. At least two different men were “knocked down” by officers for inattention to duties at the wheel on board the Elizabeth Dennison in 1844.52 Such was the case of an altercation between Seneca Higgins, the mate, and seaman Jacob Marshall during a journey from Malta to Malay in 1835. Higgins claimed that Marshall “steered too full,” and ordered him to guide his course by aligning the main topgallant sail to the compass. Marshall complained that he was unable to use the sail as a guide through the rain and darkness. According to witness Henry Robinson, the mate responded physically: He struck him [Marshall] twice. The fi rst blow was on his right arm, the other was underneath the arm on his side. He lifted up the stave to strike him the third time. When Marshall saw that he was going to strike him again, he let go of the wheel and took hold of him and laid him down on the deck. Marshall then struck out to take the wheel because the ship was taken aback. Deponent went to the wheel and hove the wheel up and got the ship off again. 53

To Higgins, it mattered less that Marshall was unable to follow his instructions than that—for whatever reason—he was being disobeyed by the man at the wheel. Whether Marshall’s tone implied disrespect and that factored into Higgins’s response cannot be known, but, clearly, countermanding the directions of an officer, even if the order could not be followed, represented an unacceptable breach of protocol. The officers had good reason to pay careful attention to the men at the wheel. In extreme weather, inattention while steering could mean disaster, for if the wrong wave were to strike the ship broadside, it could bring men and things crashing to the deck or, worse, capsize the vessel. Additionally, the wheel’s symbolic importance made it a flash point for confl ict, for it was there that the men came closest to doing officers’ duty. When things operated smoothly, the man at the wheel was in essence an extension of the officers’ authority. However because at the wheel the men liter-

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ally directed the ship, slow or surly obedience could undercut the officers’ authority even more dramatically than at other tasks As a result, officers were quick to strike out violently against men at the wheel. If the swabbing incident on board the Fairfield marked an opportunity to assert the officers’ power, the wheel represented symbolically more potent terrain. The captain on the Yorkshire was acquitted of wrongdoing after slashing one of the crew in the face while at the wheel, but his mates were convicted of murder after later crushing the man’s skull with a belaying pin.54 In a particularly vicious example, Edward Nesbitt, mate of the Montague, sneaked behind seaman Mark Thompson and struck him with a pistol butt while Thompson was at the wheel during an 1854 voyage. Unfortunately for Thompson, the case of assault with a deadly weapon against Nesbitt failed; because Thompson had been struck from behind, he couldn’t prove that a weapon had indeed been used.55 Similarly, on the Cultivator’s return run back to New York from Liverpool in 1856, Captain George B. Austin struck seaman James Godfrey from behind with a belaying pin while he manned the wheel, according to the testimony of Godfrey and his shipmates. After laying Godfrey low, Austin stood astride the prostrate man and coolly called out for a replacement to take the wheel.56 Austin’s motives are difficult to discern. Godfrey said nothing about why Captain Austin struck him, and eyewitness John Morgan, who replaced Godfrey at the wheel, said that Austin “did not say anything to Godfrey before he struck him.”57 Still, by demonstrating his physical dominance—literally standing astride the man he had laid low—Austin reasserted his authority after what he must have seen as some subtle challenge to it. If the wheel proved a precarious spot for seamen, the forecastle was treacherous terrain for officers. Traditionally, seamen saw their quarters as their one escape from the scrutiny of the officers. Though no law limited where a captain could or could not go on his vessel, custom placed strong limits on his right to enter the forecastle or to interfere with the men therein. The forecastle “belonged” to the men, at least for the duration of the journey; it was where they retreated in a standoff, where they sought refuge and comfort after an officer’s brutality, and where, on rare occasions, the murder of the officers and seizure of the ship was planned. In his portrait of an ideal master, reformer William Sullivan suggests, “I will visit their place of abode in the ship. I will see, with my own eyes, that they are comfortable as seafaring life will allow.”58 It is important to note that Sullivan only advised captains into the forecastle to inspect that

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its conditions met appropriate standards, not to direct or control how the men used the space. In real ships, an officer entering the forecastle uninvited, even for so empathetic a purpose, did so at considerable risk. The men were quick to defend their privacy, and an officer in the forecastle would more often than not be met at the door in a menacing manner. For example, the mood turned ugly on board the Yazoo during the twelve days it foundered on a sandbar off the Carolinas in 1837. With rations low, and morale even lower, Captain Benjamin I. H. Trask tried to restore discipline by ordering the flogging of a particularly bellicose seaman named Smith. He sent his mate to retrieve Smith from the forecastle, and according to a newspaper account, “The mate now went forward with the intention of entering the forecastle, but was opposed by Smith, who swore bitterly no one should infringe upon their rights.”59 Smith and his fellow denizens of the forecastle saw the intrusion by the mate as a violation of a right that, if not explicit in law, was supported powerfully by custom. Of course, the impending flogging was probably foremost in Smith’s mind when he blocked the mate’s entry, but as the other men rallied to his aid at precisely the point where the mate literally transgressed into “their” domain, they were protecting their customary rights and asserting their authority to police the forecastle themselves. This defense of custom—what those reflecting on antebellum seafarers would later come to call “forecastle law”60 —served as an important, extralegal system of defending seafarers’ rights as they understood them. Although the law came to dominate the structures of shipboard life by the middle of the nineteenth century, both seafarers and officers sought to preserve and defend additional privileges and expectations. Claims of conventional practices and usage had long been a part of shipboard governance, but as the law intervened more dramatically in shipboard governance after 1835, custom could serve to augment standards beyond mere legal limits. As the caseload of the courts swelled in the 1840s and 1850s, the percentage of “revolt” and related cases brought against seamen diminished, while assault and other cases brought against officers rose. In revolt cases that did happen in the later period, however, seamen (and their counsel) often claimed custom as well as law as justification. This change suggests several things: First, the men increasingly looked for alternatives to using their own might when they found themselves in confl ict with their officers. Both the increasing load of the courts at home and the expansion of the American consular system abroad brought a means of redress closer at

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hand to seamen by the 1840s. Second, the tight labor market not only improved real conditions but also raised the expectations of crew members as masters sought to attract and maintain skilled crews. Higher standards, to some extent, were simply incorporated into the way labor worked at sea. Whether subtle or violent, the negotiations on ships usually followed customary patterns, and men and officers quarreled over customary issues. Poor food and ill usage could invoke a rebellion in 1790, 1860, or at any time between, and men remained ready throughout the period to push back against officers over such customary concerns. But, like the law, “custom” is never static. While the men continued to defend against encroachments on what they saw as their legal rights, they also had an expanding defi nition of their entitlements. A considerable part of the defense of “custom” was linked to seamen’s sense of themselves as skilled, free men. Seamen viewed their skill with considerable pride, and the social organization of the forecastle usually reflected deference to the most skilled and most experienced members of the crew. Some captains avoided adding exceptionally skilled or experienced men to their crews because this experience would bring demands for light duty and other benefits. In a time when the status value of skilled manual labor came under increasing attack, seamen held fast to a social order that bound skill fi rmly to a man’s worth.61 The best example of the negotiating power of the foremast seamen comes from their onboard campaign against physical corrections. Seamen themselves took the lash out of the hands of their mates and masters years before the legislature did. In general, the men sought to limit (if not bar) officers’ use of the most dehumanizing and emasculating punishments. Physical punishment represented particularly dangerous terrain at sea. Both law and custom upheld corporal punishment at sea, but it came under increased pressure by both seamen and reformers seeking to curb the brutal and inhumane elements of maritime life. Interestingly, however, the main focus of protest for reformers remained the brutality found in the navy rather than aboard merchant ships. Seamen jealously defended their positions as free men and placed strong limits on their officers’ right to discipline them. Although merchant seamen had much in common with sailors in naval service, a fundamental difference separated the two experiences. Sailors were bound to a military discipline that merchant seamen, as free agents, would never have accepted. Flogging in the American navy lasted, in custom if not law, far longer than seamen in the merchant marine tolerated it.62 Buttressed in

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part by a growing reform sentiment on land that raised anxieties about the brutality of corporal punishment, seamen successfully pressed officers to limit their use of physical force.63 Although some means of corporal punishment remained legal on commercial vessels into the twentieth century,64 the captain who resorted to it frequently faced strong dissent. Though flogging remained legal until 1850, crews tolerated it grudgingly, if at all. In the 1830s and 1840s, officers still resorted to flogging and other aggressive physical punishments with regularity, but increasingly did so at their own peril. Seamen complained that such punishment was not customary, and was therefore unacceptable on commercial ships. They often stayed the captain’s hand with force, insisting, as did the crew of the Lorena, that “no man shall be seized up on the ship.”65 On the Sartelle, “Stephen Murphy, previous to being struck asked the master if he was going to rope’s end him, & being answered that he was, replied that he had better not.” When the captain proceeded despite Murphy’s warning, Murphy turned on him, stabbing the captain gravely.66 Similarly, on the Binney in 1841, when Captain Reuben H. Paine sought to flog Elihu Johnson, a recalcitrant member of his crew, he found himself surrounded by other crew members, who “immediately said that no man on board should be touched.”67 As seaman John Norway tersely explained, “Johnson was not flogged, the prisoners would not permit it.”68 The pressure the men put on officers who resorted to the lash met with considerable success. In 1837, William Sullivan noted that, though legal, “such barbarous punishments rarely happen in American merchant service.”69 By 1840, flogging had been so curtailed in New York’s merchant trade that one second mate, an eleven-year veteran of the sea, admitted, “He has never seen a man seized up on board a Merchant Vessel.”70 By 1847, one Boston-based mate acknowledged that only in a “bad ship” would one expect to see a man flogged.71 How had the most iconic staple of punishment at sea become “rare,” “never seen,” and the mark of a “bad ship” by the 1840s? Through pressure applied by seamen themselves, who placed limitations on officers by shows of force on the deck or through litigation once back home. By invoking federal authority, the men used the 1835 statute, and the clear right of access to consuls afforded by the 1840 law, to force captains into narrow, legalistic punishments. With officers afraid of running afoul of the law, the men pressed their advantage while at sea to pry the lash out of the captain’s hand before the law removed it for good. According to Robert Richards, a seaman on the Fairfield’s unusually

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Figure 6. This image from 1846 depicts the most dramatic form of shipboard punishment. One crew member is flogged as the rest of his shipmates look on, disgruntled. Flogging not only operated as a punishment of the flesh, it was also encoded in the complex logic of personal honor at sea. The humiliating aspects of shipboard discipline were calculated to reassert order by demonstrating the proper roles on the vessel. However, both the law and the unwritten code of honor and convention operating on ships made it dangerous theater. Men often resisted flogging on commercial vessels, particularly after the law gave them additional rights and limited officers’ latitude to punish in 1835. In 1850, Congress made flogging illegal, removing the most iconic form of shipboard punishment, which, until that time, had undergirded all discipline at sea.

cantankerous voyage from Liverpool in 1840, the men rejected the master’s right to any meaningful punishment, though they reserved the right to police the forecastle themselves with physical violence. After one of the crew, Harris, had struck the cabin boy, the captain called for him to be punished, but “when the mate was hauling Harris to the rigging the hands all came aft. . . . They then said they would not allow any flogging on board a merchant ship.”72 Captain William Lyon backed off his attempt to punish Harris, but gamely attempted to assert that he had a free hand in punishing the men, arguing (quite incorrectly) that he had the power to shoot his men “one by one” if he so desired.73 Lyon was yelling into

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the historical wind. His bombast likely betrayed his fear and frustration over his diminishing power as master. The law, five years previous, had curtailed his ability to punish his men (though it had never granted him the right of summary execution as he claimed). Now he was subject to the whims of hostile judges, juries, and consuls who knew nothing of the frustrations and dangers of maritime command. Even more alarming, the men themselves now grew so emboldened that they sought to defi ne “appropriate” punishment for themselves. Such dangerous democracy must have seemed more than mutiny; it was as though all the excesses of the French Revolution had come aboard with his salty crew. All meaningful authority was fi nished, as the men claimed that this new “convention” meant the end to traditional—and still technically legal—punishment. Even when seamen acknowledged that their wrongdoing necessitated punishment, they resisted the captain’s right to flog. On whaleships, where the lash lasted longer as acceptable punishment,74 the men balked at the captain’s use of so brutal a punishment by the 1840s. Briton Cooper Busch describes one incident, on board the Coral of New Bedford, Massachusetts, in which the men, when asked by the captain “what they had against the ship . . . immediately answered . . . that they did not like to see flogging going on.”75 The men’s objections moved beyond corporal punishment, and crews might resist any confi nement as an unacceptable punishment, as when in 1848 the crew of the Cambridge refused duty after the captain put one of their number in irons.76 Corporal punishment in general, and flogging in particular, proved to be a flash point for trouble, and the clearest point of confl ict between what was legally permissible and what would be acceptable under forecastle law. Forecastle law operated in some ways similarly to the nation’s law, relying on a consensus of practice based on precedent, but forecastle law operated wholly within the confi nes and culture of the seafaring world, and thus was both more insular and more fluid than the larger legal structure. Seamen relied first on convention, as the most understood and available means of defending themselves. As the law, and in particular the federal court system, began to become a useful ally, however, they shifted their justifications to this growing external authority, but never relinquished the power of forecastle law. Indeed, particularly for issues in which conventional standards outstripped the mere legal requirements, such as in the case of rations and the application of corporal punishment, the men relied on the convention precisely because it had both the weight of precedent and the fluidity of a negotiation taking place at that very moment.

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Tars were not the only arbiters of forecastle law. It was—always— asserted and understood in negotiation with officers. If seamen sought to defend fi rst traditional conventions, then legal rights, then a combination of federal and forecastle law, officers fought back by defending a broad interpretation of their authority, asserting both their traditional and legal rights to rule the men who served under them.

Chapter Six

“Good Officers Make Good Men”: The Changing Meanings of Honor on the Quarterdeck

It is not my desire to have you punished but as the law authorizes its infl iction it becomes my duty to see it enforced. —Jacob A. Hazen, Five Years before the Mast1 It is true I am clothed with a high authority by the law, but that same law supposes, that I will be a friend and father to the family which it has entrusted to my care. —William Sullivan, Sea Life 2

T

he violence on board the Forest began at the wheel, on the packet ship’s return run to New York in 1837. Andrew Spence, the fi rst mate, quarreled with his captain, Patterson Morrison, over compass headings. According to seaman George Williams, Spence questioned whether the captain had chosen the correct heading back to New York. Enraged, “Captain [Morrison] told him he knew nothing about it, and they called one another liars on both sides. . . . The captain came forward and told him not to call him a liar or he would knock his smellers off.”3 Spence retorted, “I know the way to New York as well as what you do,” and he began to take his own reckoning of their location with his personal quadrant.4 “Damn you and the wind too—you have no business to go around without my orders,”5 yelled the captain, who stripped Spence of his rank and told him to move all of his belongings into the forecastle, with the exception of his quadrant, which Morrison demanded he relinquish. Williams, who witnessed the events on the deck, stated, “The mate said it was his own property and he would do with it as he had a mind to.”6 Another witness, John Berry, explained, “The Captain called him a liar a damned soger and damned blood sucker. The mate said ‘It’s a bloody lie.’ The Captain went with his 121

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fist shut and said ‘You called me a damned liar, I will have your smellers all to pieces.’”7 The captain then struck him with his fist. Calmly, Spence “asked him what this all meant,”8 whereupon the enraged captain seized a pump break and swung repeatedly at the mate, who retreated from the blows toward the forecastle. At trial, Captain Morrison’s attorney did not dispute that the beating had taken place. Rather, he focused on Spence’s use of the quadrant, and whether or not that act had been meant as a public insult to the captain’s skill and authority. In the depositions taken for trial, Morrison’s council asked each witness whether or not he had seen regular seamen (for, he argued, that was Spence’s rank at the time he took his measurements) use instruments of navigation. While the defense conceded that the beating might have been inappropriate, the greater crime was Spence’s attempt to challenge the captain’s knowledge and, by extension, undermine his authority. To disagree with Captain Morrison as he had, fi rst as his mate and then as a regular seaman, in the presence of several of the crew, undercut the master and endangered the ship’s peace. Although the court record does not tell how Morrison’s trial for assault with a dangerous weapon ended, the events on the deck of the Forest suggest the symbolic power even small gestures had at sea.9 Morrison’s dilemma (both at sea and in court) came at a watershed moment both for officers at sea and for the larger culture. In the wake of the 1835 law that more sharply delineated what officers could and could not do to keep seamen under control, captains like Morrison had to reimagine their strategies for instilling and maintaining discipline. Although the 1835 act left room to negotiate—both on the decks and in the courts—about the nuances of shipboard governance, officers clearly found themselves undermined. The 1835 law, however, was part of larger trends emerging in American life. Morrison found his power and prestige weakened by the democratic spirit of the age. The competing defi nitions of rights and honor among individuals were fi nding new voice in American culture in the Jacksonian era, and this new democratic spirit found expression at sea as well as on land. Seafarers participated heartily in the broader political trend that saw greater inclusion of “regular” white men as equal partners in the Republic, but in their specific case, the larger cultural changes were also echoed and reinforced by the legal changes that governed American vessels and maritime labor. As the expansion of the franchise to non–property holders began revolutionizing American politics, the federal protections afforded

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seafarers by the acts of 1835, 1840, and 1850 expanded the links between the nation and this class of workers.10 Ships’ officers were, by tradition and convention, “gentlemen,” at a perilous moment in American history for such an identity. On the one hand, the privilege of station came under attack in the democratizing climate of the fi rst decades of the nineteenth century. By contrast, however, all agreed that the sea was not a workplace that could be wholly democratized without peril. Officers needed their authority, whatever its underlying justification, to ensure the safety of all on board. However, with the politics of deference under attack by Jeffersonians in the late eighteenth century and more completely repudiated by the white male egalitarianism of the Jacksonian era, officers found their claims of gentlemanly “mastery” over the men increasingly anachronistic. Although the trappings of gentlemanly deference continued throughout the antebellum era, officers had to defend this form of mastery while bolstering their authority’s legitimacy in other ways. In light of these encroachments upon the legitimacy of their authority, officers walked a precarious line between reasserting old justifications of their power and augmenting them with new legalistic justifications, all the while being careful not to run afoul of the rising democratic sentiments of the era. Legally and socially, officers were both of the crew and above it. Officers, and in particular ships’ masters, were thought to be gentlemen and, as such, had to embody the masculine ethic of gentlemen of their day. Of course, what constituted gentlemanly honor and behavior shifted dramatically between the 1790s and 1860, and officers struggled to defend an image of their social position that could help undergird their authority over the men. If the law and democratic spirit of the times cut into officers’ authority, some aspects of the changing realities of the industry made the lines between ranks more rigid. As whalers traveled farther afield, and with larger crews in the nineteenth century, they developed a series of ranks and duties both fi rmer and more intricate than in earlier years.11 Moreover, although at least in theory it remained possible to move from forecastle to captain’s quarters over the course of a career, it became decidedly more difficult to do so after the great boom in American vessels took place in the 1830s. Even if the social mobility and fluidity of rank had diminished, however, and the lines between shipboard ranks became more precise, officers continued to fight against a larger cultural change in the understanding of status, honor, and authority in the ethos of the emerging nation.

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Officers’ authority had several sources, including craft convention and the law. In a less concrete but perhaps more essential way, however, officers legitimated their authority by illustrating through behavior, dress, and speech that they were the sort of men who deserved to command. What gave the successful officer “mastery” over the crew (and where the more hapless officer got into trouble) had to do with his performance of the precarious role of a man who was required to be at once one of and above those he oversaw. In other words, officers had to conform to two distinct—and rapidly diverging—defi nitions of manliness. On the one hand, they needed to be strong men in the eyes of the strong men who served below them, and had to rate on par or better using the kinds of measurements by which the forecastle hands assessed themselves.12 On the other hand, they were expected to comport themselves as gentlemen in a world that had begun to challenge the legitimacy of such a position. In addition to the critique of elitism, these maritime gentlemen also faced a defi nition of “gentleman” undergoing redefi nition through reform with a focus on restraint and mastery of the self rather than manifesting one’s mastery of the world. The ship’s officers tried to project and cultivate a dignity recognizable to the crew yet above and beyond that of the crew, and as a result, they often believed that any insult could undermine their ability to lead the men. Atop the ship’s chain of command, the captain was expected to represent the pinnacle of honor. Ideally, ships’ masters comported themselves with the dignity of the elite ashore. Among the elite packet and clipper ships, the captains made up “an aristocracy of blue water,” in education, manners, and bearing the equal of the gentlemen of terra fi rma.13 To make matters worse, officers often possessed little to justify their command beyond their own navigational skills and ability to get the men to follow their orders. Only the respect the officers could garner, or the fear of either the lash or the law, kept a ship from devolving into anarchy. Because the arm of the law was distant, and the effect of the lash could as often poison the atmosphere below the deck as it could “correct” it, masters and their mates relied on their own brand of masculine honor to justify their precarious position at the top of the shipboard society. Ironically, as the law bolstered and clarified officers’ power, particularly after 1835, it became an external justification of their authority, thus undermining their claim that their authority was intrinsic and absolute. Just as the law’s protections of seafarers also infantilized them as something less than men who could care for themselves in the world, officers found their own authority legitimated not by their own “masterfulness,”

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but by their legal position. Officers were forced to transition, reluctantly, from a defense of their authority predicated on cultural norms and their performance of their role as the ship’s gentlemen, as “master” and “mate.” Instead, they drew their legitimation for command from a legal defi nition that proscribed as well as asserted the right of command. Therefore, in the wake of the 1835 law, officers defi ned their “mastery” of men (as distinct from their mastery of seafaring) in ever more strained and unsupportable tones. Like other men at sea, officers defended and reasserted the traditional roles they believed brought coherence, and thereby safety, to seafaring life. Tars and officers alike negotiated through a complex set of changing identities. In broad terms, officers were bound in many ways by the same code of honor and masculine identity as the men before the mast, even as they strove to defend a higher, gentlemanly honor. Officers, and especially captains, found themselves caught between two defi nitions of manliness in the antebellum period. The fi rst was the rough-hewn working-class defi nition of manliness frequently deployed by regular seafarers that privileges a man’s power with respect to the world around him. That defi nition celebrated the man who could best a foe, would brook no assault upon his honor, and commanded his environs.14 By contrast, the rising northeastern middle class (the cultural source of many captains) celebrated an internally focused defi nition. To these reformers and Victorians, a true man mastered himself rather than his world. The ideal man showed restraint and self-control, and avoided the braggadocio and garish tests of manhood popular elsewhere.15 Whereas some officers continued to subscribe to older notions of what made them gentlemen involving their mastery of the world around them, many captains and those junior officers who embraced the rising Victorian sensibility saw the ship as an opportunity for reform and uplift. To these men, the honorable choice was to enforce the regulations of a temperance ship and provide a moral example to the men who served beneath them. Indeed, even the captain’s legal title as the ship’s “master” illustrates the duality of his position. In theory, the captain was a master of men, like a feudal lord, or a social “better,” or, in the oft-made comparison, a slaveholder. Yet his authority increasingly rested on a legally defi ned position as an administrator of the ship. As Daniel Vickers notes, a ship captain’s “mastery” describes both his authority (as a master of men) and the set of navigational skills that justifies his position as a “master mariner.”16 Although defi nitions of what legitimates a man or defi nes his honor are historically fluid and constantly changing across time and locales, in

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broad terms officers’ manly mastery came into question not only from changes in the law that undergirded their authority but also through the changing defi nition of what constituted “manliness” for northeastern gentlemen. For this class of men, personal mastery became less about controlling the world around you and more about exercising control over your own passions, forcing officers to reengineer their self-defi nition. In this regard, ships’ officers were responding to the changing gendered expectations of the age. The divide between the evolving elite defi nition of selfmastery as the apotheosis of manly honor and the older defi nition predicated on patriarchy and physical mastery over others that prevailed among the slaveholding elite and northern Jacksonian Democrats became a (if not the) central political divide in the years before the Civil War.17 For a ship’s master, like a slaveholder in the South, economic well-being and safety required a fi rm mastery of others. Nevertheless, in the appeals of reformers, it becomes clear that, by the 1830s and 1840s, the importance of selfmastery had strong pull, both at sea and ashore.18 Despite legal and moral challenges to officers’ unchecked physical authority, the captain was still expected to be master of the men under his command. In addition to his skill as a mariner and a navigator, the master oversaw every aspect of life and labor aboard his vessel. Although he left most of the day-to-day singing out of orders to his mate, on any well-run ship the crew understood that all authority originated with the master. In addition to older comparisons available to explain the quality of the captain’s authority (lord, parent, military commander), he was also another master craftsman in an era of dramatic change for the meanings attached to that role. If the holistic authority of the master/apprentice relationship was collapsing ashore in favor of modern contractual management-labor divides that were largely limited to issues of the workplace only, what about the sweeping authority afforded ships’ officers? Could the captain’s authority be reduced to merely that of the factory administrator? Ships’ officers certainly believed not. In style and manners, the captain was expected to be the preeminent gentleman on board, and was asked to entertain fi rst-class passengers in his cabin as well as tend to the ship’s needs. Robert G. Albion noted of the packet ship captains, “Until the late ‘forties at least, it was essential that he be a courteous gentleman as well, with a sort of a bluff amiability, to inspire confidence in the passengers.”19 Richard Henry Dana noted that the captain’s responsibility to be a gentlemanly host to the passengers was actually a part of his legal responsibility: “The contract of passengers with the master is not for mere ship-room and personal existence on board, but

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for reasonable food, comforts, necessities, and kindness. In respect to females, it extends still further, and includes an implied stipulation against obscenity, immodesty, and a wanton disregard of the feelings. An improper course of conduct in these particulars will be punishable by the court, as much as a personal assault would be.”20 With respect to both passengers and crew, the captain was expected to be father to his ship. The parental authority gave captains broader power than other employers. In a case appealed to the Circuit Court for Massachusetts, Justice Levi Woodbury described a captain’s unique responsibilities: “In common cases between individuals, it is true that words do never justify blows; but between officers and seamen all blows are proper for disobedience and insolence, which are justifiable by a parent to a child.”21 Though the law gave captains latitude due to their stature as gentlemen, it also expected them to live up to that measure of trust. Officers were responsible not only for their behavior but also for the example they set. Noting that the captain had permitted the men to fight among themselves, Judge Thomas Bee suggested he might have been partly blameworthy for later violence and disobedience on board. “A captain who encourages disorderly behavior in his ship is the less excusable for infl icting unusual punishment for conduct arising, in some measure, out of that disorder.”22 The captain was to be an example to all on board, and reformer Rev. Alfred M. Lorrain compared officers to ministers in their duty.23 Every word and action became a dance of assault upon or defense of the officers’ position. In their testimony, the men refer most frequently to captains rather than masters, the term both the law and the officers preferred. In this they echoed land-based artisans, who pushed to remove the term master from the rhetoric of labor relations among free men.24 In a British guide published in 1799 geared to both merchant and naval officers, attorney David Steel noted that “the commanders are to shew in themselves good examples of honour and virtue; [be] vigilant in inspecting the behaviour of others, suppressing all dissolute, immoral, and disorderly, practices; and to correct those who are guilty according to the usage of the sea.”25 As early as the 1810s, ministers seeking to reclaim the souls of seafarers enlisted the support of shipmasters, since their paternal authority seemed key in bringing tars to God. Boston’s Rev. Joseph Tuckerman began organizing not only the clergy but also captains in his mission to bring about the “improvement” of the men in both material and spiritual terms. His 1812 Address to the Masters of Vessels endeavored to make them partners in his ministry.26 Decades later, in his memoir of a half century of evangelism among seafarers, Rev. Charles J. Jones praised the work

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of captains to bring about not only their own salvation but the reform of the men under their command, claiming his own salvation and ministry were the result of the religious ministrations of Captain Augustus Proal, under whom he sailed as a young man.27 In later years, reformers appealed to officers’ sense of honor to encourage them not only to set an example but also to temper their own excesses. The same year that Spence and Morrison quarreled on the Forest, guidebook author William Sullivan urged captains to good behavior by appealing to their manhood. He asked captains to pledge to themselves the following: “May I feel conscious that I have done my serious duty, like a man; and that no one whom the law has placed under my orders has any just cause to complain.”28 Yet officers’ positions demanded a different, heightened sense of honor. Officers’ authority was based on a sense of their superior skill and identifiability as “masterful men.” In the words of Justice Woodbury, “A commander of a vessel should be a fi rm man, tenax propositi,29 and should not act on the groundless fears of his crew.”30 Dana warned that the captain cast a long shadow, and if he be “profane passionate, tyrannical, indecent, or intemperate, more or less of the same qualities will spread themselves or break out among officers and men.”31 The captain who did not conduct himself as a gentleman but rather let his passions rule deserved neither his command nor the label of gentleman. The description of the Saladin mutiny led by “Captain” Fielding noted that the seeds of his misdeeds could be seen in his earlier career. Fielding had lost command of his own ship because of his failure to act appropriately in his role as captain, and was forced to seek passage on the Saladin. According to the published commentary of his trial, “Fielding was always unpopular with his crews, always quarrelling with them, a sure sign of an arrogant, overbearing commander. He starved his crew and then bullied them. When arrived at their destination, they almost invariably deserted him, and it was a rare circumstance for him to bring back the same crew with which he sailed.”32 However, the man Fielding usurped, Sandy McKenzie, gave him leeway to seize command only because he himself did not live up to the image of the ideal captain, as he was given to “drunken rages and bouts of swearing.”33 Though swearing at sea was common in the forecastle and on the quarterdeck, it held symbolic power. Greg Dening sees the famous mutiny on board H.M.S. Bounty in 1789 as sparked by Captain Bligh’s failure to play the role of gentleman-captain. In Dening’s analysis, Bligh’s free-swearing tongue and penchant for using humiliation as a disciplinary tool so undermined his authority as to make mutiny all but inevitable. 34

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With tremendous power came equally great responsibility, and guidebook writers and legal authorities urged captains to keep this in mind when dealing with their crews. In addition to trying to remain within the law, officers also had to steer a path between appearing weak and seeming capricious or brutal in their punishments. Weakness might make the men take ever-greater liberties at the expense of the captain’s authority, while brutality could prompt an insurrection at sea, a lawsuit back home, or even a criminal charge. William Sullivan’s “good captain” viewed his position thusly: “I am the whole judge of how my authority shall be exercised. But the day will come, when my authority will cease, and the seamen of my ship will be, in the eye of law and justice, my equals. It may be their right and duty to complain; and my duty to show, if I can, that I have been a trust-worthy, and honest man.”35 A captain’s integrity was his most important quality, according to Sullivan. Though the captain endeavored to lead boldly and forcefully, and not shirk from even the unpleasant duties of discipline, it was necessary to temper his leadership with reason and compassion. Captains were to lead not merely by force, but by example. In Sullivan’s assessment, a good captain understood the following: I can be obeyed without the use of language, which ought not to go from any man’s lips, nor be heard by any human ears. I can have the respect, the obedience, and the good will of my men, by kindness and gentleness. . . . If they have bad habits, I will show them how they might have better ones. If they are ignorant, I will instruct them. If they are discontented with each other, I will soothe them into peace. 36

In extreme cases, if a captain “is grossly incompetent to the duties of his station, from want due to skill, or from grossly bad habits, or from profligate and cruel behavior, the seamen may refuse to do duty or remain by the ship.”37 Sullivan’s guide sought to chart a course between old notions of mastery and the rising middle-class values of restrained manliness, coming down fi rmly on the side of moderated habits. In the absence of a temperate, restrained character, Sullivan’s “bad” captain invited insolence at best, and mutiny at worst. By 1853, Thomas Sullivan put the moral responsibility of officers more succinctly, explaining that “good officers make good men.”38 If these guidebook writers mark the triumph of Victorian manliness over the expansive physical mastery of earlier years, the confl ict had been going on for more than a generation of ships’ officers on US vessels. By the late 1830s, the struggle over defi nitions of gentlemanly honor for officers

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became a major point of confl ict between officers and the courts and consuls that had begun to impinge on their authority. In 1838, Nicholas Trist, consul for the important port of Havana, saw an altercation between himself and Captain Abraham Wendell explode into a major national incident due in part to competing defi nitions of appropriate manly behavior in several ways. Wendell, master of the Kremlin, found himself called before Trist after an incident with his fi rst mate, William Bell. According to Trist’s account, the altercation with Bell had arisen from Wendell’s order to “cheat the count” on a cargo of lumber being loaded onto the brig. 39 “Of this the mate took no heed,” according to Trist. “He had no idea of carrying his obedience so far as to conform to an order to cheat.”40 Already the incident struck at the core of Wendell’s honor by both new and old rules. The disobedience by the mate was in and of itself a blow to Wendell’s authority on his own ship. That his mate sought to elevate the middle-class values of honest dealing over the authority of his captain proved to be an intolerable blow to Wendell’s authority, and Bell was promptly punished severely. Bell then went over the head of his master and presented the incident before the consul, who called Captain Wendell in for an interview. Wendell, who was well connected among a community of powerful traders and captains in Havana, took affront at being thus summoned by the young and inexperienced consul. After a furious exchange, Trist stripped Wendell of his command and made arrangements for his incarceration should Wendell continue to reject the consular authority. In defending his actions, Trist cast the event as a question of honor, noting that the captain’s explosive bluster was decidedly ungentlemanly behavior: “Having made his election to go to jail, common decency would have required, under any circumstances, that he should do so like a man,”41 explained Trist. Instead, Wendell behaved “like a man besides himself through a furious temper, rendered worse by the liquor-flame with which his blood was saturated.”42 The “liquor-flame” that fi red Wendell’s anger illustrated—to Trist, at least—that this was a man who, by temperament and personal habits, should be disqualified for command. To Wendell, however, who complained bitterly about Trist once he returned home and sought the consul’s ouster, he had been humiliated in four ways during the incident. Not only had his own mate disobeyed him on the ship, by itself an unacceptable violation of his authority, but the man then had the temerity to approach the consul and complain about his lawful and appropriate punishment. The consul, a mere civil servant and hardly a man of consequence in the better circles of Havana, further

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undermined Wendell by presumptuously calling him in, and then, worst of all, ordering him imprisoned. Wendell’s humiliation was more than merely an emotional blow, however. It undermined him as master on his own vessel, and it undermined his reputation as a gentleman and business trader in Havana and in his home port of Boston. He complained publicly about Trist’s high-handed and unnecessary behavior. In an open letter defending himself against the public attacks made by Wendell, Trist mocked the way in which Wendell wrapped himself in the mantle of gentlemanly honor, noting that merely asking the captain for the ship’s articles (a requirement of the consul’s duty) was, to Wendell, “conclusive proof of the consul’s contempt for his countryman: inasmuch as it amounted to a refusal to ‘take the word of a gentleman’—in view of this mere fact, as its result, my course was deemed wrong.”43 This debate between two “gentlemen,” both of whom owed their authority in part to their reputation as much as to their offices, illustrates the contested defi nition of men’s honor among maritime officers and those who interacted with them. Fights between a captain and consul could impact careers, reputations, and fi nances. At sea, however, questions of honor between officers and men could prove far more violent. Despite the interventions of consuls like Trist and reformers like Sullivan, captains all too often failed to live up to their gentlemanly image. Many captains preferred to rule by force rather than by respect. A captain’s megalomania could easily be the subject of parody, whether in Melville’s deranged Captain Ahab in Moby-Dick44 or in William Sullivan’s depiction of the “bad captain”: “What can a sailor do ashore against a gentleman captain? Who will believe the miserable sailor? Where is his evidence, and who will believe it, if he has any? No. I care nothing for the law ashore. Here, on the sea, I am monarch. I indulge myself as I please. I make the law; and all shall tremble and obey.”45 Masters who did play the bad captain, however, often found that their journey became more difficult for their strong-arm approach. Moreover, as both the courts and seamen themselves grew wary of corporal punishment, honor became all the more critical in maintaining control of the ship. Unlike seamen, who could more easily escape from an unsavory reputation with a change of name or home port, officers were usually rooted in a home port, and a mark on their reputation could have consequences that stretched well beyond the ship’s rail. Margaret Creighton noted that “some sea captains were almost paranoid about their ‘characters.’”46 Being a tough taskmaster made cargo and passengers easy to come by. A reputation for fair treatment made easier the signing of a seasoned and eager

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crew. By contrast, a reputation for cruelty or intemperance made crews more expensive and harder to keep, and made cargoes more difficult to come by. Particularly among New York’s packet ships, where, despite the cachet of liners, the captain was usually at best a very minor investor in the ship, his livelihood rested only upon how well respected he was by the merchants of the counting house. Whatever the assertions a captain made from the quarterdeck, real authority in the packet trade rested ashore with the company’s factors rather than with the ship’s master.47 Perhaps because of this insecurity, captains linked their own reputation to that of their ship, and the identities of the great captains of New York’s packet lines became so enmeshed with their ships that the ship’s name became affixed to their own. According to Albion, “It was always the ‘Yorkshire, Bailey’; ‘Independence, Nye’; or ‘Huntsville, Palmer.’”48 The most successful merchant captains built around themselves a cult of personality that not only aided them on the water but launched them into elite society ashore. Captains of the famous “clipper ships” of the 1840s and 1850s built reputations on the speed of their crossings, and jealously guarded their reputations as both gentlemen and seafarers. Samuel D. Samuels, who enjoyed a long and storied career sailing out of New York, was lionized by the editor of his autobiography, Ralph D. Paine, who eulogized: “His rank and importance when ashore were more exalted than can be conveyed in mere words. Any normal New York boy would sooner have been a captain of a Red Cross or Black Ball Packet than the President of the United States.”49 Others who never attained the lofty reputation of Samuels and his ilk nevertheless struggled just as hard to build names for themselves as successful captains. Protecting the reputation of masters was of concern to the courts as well as to captains themselves. The New York Herald equated the officers’ honor with the rights of seamen. Describing a case from 1837, the paper noted, “This is a very important matter—it involved the character, reputation, happiness and liberty of Capt. Farwell and ship captains generally, on the one hand; and on the other the comforts and rights of seamen were at stake.”50 Seeing the danger posed by a man’s standing up to an officer, the courts urged captains to use restraint in punishing the men. However, once challenged, a captain had to respond. Understanding the symbolic power of the captain’s appearing to back away from a challenge from a seaman, jurists granted leeway to captains who faced recalcitrant men in hand-to-hand combat. Justice Bushrod Washington ruled in 1819 that a captain “may

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not be required to retreat, when assaulted by a seaman; so as thereby to indicate fear, and to diminish his authority, so essential to the due subordination of the crew,” even if that meant overstepping normal bounds of behavior.51 American jurists urged men not to engage in open confl ict to defend themselves, even when justified. Curtis suggested that men could restrain the captain in self-defense, but not strike back.52 Even more confl ict-averse, District Judge Henry Ware of Maine suggested that the man might flee from punishment, later to submit when the master was more himself.53 However it was avoided, most authorities agreed that open physical confl ict with a captain—even in self-defense—carried a deep and dangerous symbolic challenge to the captain’s authority. Seamen understood how much their officers had at stake in their reputations, and often used the courts to punish or even blackmail officers they disliked. A court proceeding could be time consuming and costly to an officer. If enough damage were done to the officer’s reputation, he risked losing his berth or having more difficulty fi nding future employment. Seamen often brought criminal charges, usually for assault, or civil cases over wage issues as a way to extort money from officers they disliked, and officers often faced a bevy of suits and charges from even a fairly routine crossing. Such goings-on were common enough that, in some cases, officers simply sent small sums to a seaman’s attorney, assuming that would solve the problem. William Stratton, a sixty-two-year-old salt on board the Enterprise in 1858, ordered his attorney, Alanson Nash, to refuse a payment of thirty dollars from Captain Addison Grindell so he would have his day in court. “I told Mr. Nash not to have it settled so. I wanted it to be carried on in court,”54 insisted Stratton. At least for Stratton, it was important to distinguish his complaint from a mere attempt to obtain an additional payment. Honor was at stake—both his and the captain’s—and only a full hearing in court could satisfy the aggrieved. Stratton’s desire to have his matter of honor play out publicly in court was not unusual. Indeed, by defi nition, honor is a public affair, but as seafarers of all ranks became more enmeshed in the legal system, the venue for matters of honor and shame came to include the courts and the press as well as the deck. 55 Not only did seafarers use threats against officers’ reputations as leverage at sea and in court, but officers used their honorable reputation as a legal defense in and of itself. Captains and officers bolstered their defenses with testimonials and affidavits of character from coworkers, employers, local notables, and landlords. In 1833, officer John Hargraves provided the court with testimonials from captains with whom he had served, and

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from Aliza Anne Smith, who operated the Cherry Street boardinghouse he called home when in New York. According to Smith, “his amiable manners [and] uniform correct deportment . . . have obtained for him the affections of deponent and her family who have long treated him rather as a child than as one of their boarders.”56 As suits against officers became more prevalent in the 1830s and 1840s, some papers began opening their pages to short, glowing passages praising officers. James Gordon Bennett’s New York Herald, which already covered seafaring cases in the federal court for their prurient tales of mutiny and violence, became the premier site for these notices, which were often placed by friends with the intent that they would later prove useful in court.57 The use of such testimonials to counter the testimony of seamen, itself already suspect before the courts, become so prevalent (particularly in the pages of the New York Herald) that the North American Review complained, “Certificates to vouch a professional reputation, as if it were a medicine, are so distasteful in their nature, and so contrary to the usage of the bar, that we were not sorry to be obliged to descend for them to the columns of the New York Herald, where they seem to have fi rst seen the light.”58 Whatever the efficacy or reliability of such newspaper testimonials, their existence indicated that an officer’s reputation was an important matter beyond his specific vessel. Having friends and colleagues tout their gentlemanly qualities in the pages of the penny press illustrates the extent to which officers’ honor mattered, not merely in keeping the peace at sea but also as a means of keeping the officers safe from legal, professional, and fi nancial harm ashore. Sometimes the proof of a captain’s character seemed circular. In a bold essay written while studying law at Harvard, Dana criticized the handling of a case brought before his own law professor, Joseph Story, in 1839. Objecting to the way Story handled a case of abuse at the hands of William Nichols, master of the Caravan, Dana took umbrage that the mere fact that Nichols had risen to the rank of captain was proof enough to Story of Nichols’s “previous good character.”59 Although Story responded that the case had been “misrepresented and misunderstood in the newspapers” to the detriment of the officers, the circularity of Nichols’s defense prompted Dana to complain in print about what many seafarers had seen in court.60 Officers’ titles often carried with them the assumption of honorable behavior, whatever the character of the men holding the position. Seafarers had to assault the man within the position in order to demonstrate to the court the discrepancy between an officer’s expected dignity and the actual character of the specific man holding the title.

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Officers disciplined seamen to reinforce their authority as much as if not more than to deal with any specific misdeed.61 Officers saw men who were “saucy & insolent”62 as a serious threat—more serious, perhaps, than more concrete but less emotionally charged forms of disobedience. “Sauciness” became a common complaint of officers and a frequent justification for harsh punishment.63 As Judge Richard Peters noted in 1806, “The safety of a ship sometimes depends on promptly checking disobedience, and stimulating exertion. Subordination is peculiarly essential to be enforced, among a class of men whose manners and habits partake of the attributes of the element, on which they are employed.”64 A captain who left cheek unchecked feared facing a rising tide of disrespect. Even sullen words could prove explosive. A case from 1846 noted how dangerous insolent language could be: It is stated by both classes of witnesses, that the libellant fi rst used language, which, however usual in private life between persons in like stations, was, from a seaman to his commander, before the rest of the crew, and at sea, at least disrespectful if not insolent. It was a bad example to others, considering the relations which exist between officers and their men, and which relations demand towards the former a courtesy and obedience that are necessary, if not indispensable to preserve order and safety to both life and property on board.65

Even though, as Joseph Blunt noted, “every little instance of subordination is not regarded as revolt,” that did not mean that small acts or words of disobedience or insolence were not dangerous.66 “The master has a right to respectful demeanor, as well as obedience,” argued Justice Levi Woodbury, and not only could an officer enforce that respectful demeanor, but as the party responsible for the safety of the vessel, the captain had a responsibility to do so.67 Honor and respect were especially critical for officers, who, once away from the docks and the machinery of law and society at large, commanded mainly because the men believed they should. Losing face before the men greatly compromised an officer’s ability to lead. As a result, honor was of insurmountable importance to the officers. Moreover, the officers bolstered their position by demanding deference. In the navy, the obsession with personal honor among officers became a serious problem. During and after the War of 1812, “a crop of overwhelmingly proud and egotistical young commodores pathologically preoccupied with personal honor wreaked havoc on the discipline and efficiency of the

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US Navy.”68 Naval historian James E. Valle argues that “most [duels] were attributable to an exaggerated sense of personal honor which led to pointless quarrels.”69 Even if officers on merchant ships did not share the sanguine rituals of honor with their military counterparts, they did defend their honor against perceived slights. Whether in the naval or merchant service, notes Valle, “It was dangerous to question the honor of an officer and gentleman in a serious way.”70 Even in the merchant service, an officer’s obsession with his personal reputation and honor sometimes became pathological. Some officers took any perceived affront as a justification to heap abuse upon those in their charge. Often under the guise of presenting an example to the rest of the crew, captains severely disciplined men who had disrespected them in some way. A public challenge to an officer imperiled the security of his command and the safety of the ship. Many of the most brutal punishments meted out at sea occurred when seamen refused to yield or admit wrongdoing publicly, even as the lash was swung, just as William Merchant suffered the lash until he made “acknowledgement of his guilt” before the entire crew.71 In 1814, when a seaman named Peters on board the Benjamin Rush came at his officers while “throwing off his jacket, and rolling up his sleeves,” the message was clear. He made his challenge to Captain Peter Wiltberger even clearer by asking, “You called me down, with intention, I suppose, to flog me—I wish to know if you mean to do it or not.” Captain Wiltberger could not leave such a challenge, made as it was before several of the crew, unanswered. He replied, “If you want flogging, I will flog you.” When even the blow did not make Peters back down, Wiltberger continued to beat the seaman until Peters “lay speechless, insensible, and motionless, with no other signs of life than a difficult respiration.” Peters died eighteen hours later, having never regained consciousness, and Wiltberger was later convicted of manslaughter for his fatal answer to Peters’s public challenge to his authority.72 Failure to live up to this heightened standard jeopardized an officer’s ability to command, occasionally with disastrous consequences. The fi rst mate of the Cornelia saw the most damning moment in the case against William West as his overpowering of the captain. “At one time I consider that he had the captain altogether in his power until we assisted him.”73 This usurpation of the captain’s mastery, both of his ship and of his men, destroyed the order of the ship. West’s captain, Francis M. French, agreed, telling the court, “I never considered myself so much a prisoner on board my own vessel either at sea or on shore in my whole life.”74

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Indeed, “confi ning the master” represented an important enough symbolic act to be a distinct criminal charge, separate from revolt.75 The circuit court in New York heard at least seventeen discrete indictments for “confi ning the master” before 1862, and the charge was regularly included as a lesser charge with cases of revolt. Federal judges reported decisions in forty-two cases of confi ning the master nationwide through 1861; given the rarity of a reported decision, the total number must be considerably larger. The courts gave broad defi nition to the charge of confi ning the master, precisely because of the symbolic power of the captain’s being within the power of one of the crew, broadening the charge so that it required no physical confi nement; even if from a reasonable fear the captain felt constrained by the behavior of a seaman, the charge could be upheld.76 Questions of honor expanded beyond the mere running of the ship. Because any challenge to an officer’s honor theoretically cut into his ability to expect unwavering obedience, no loss of face in any arena could be tolerated. An officer expected to be a seaman’s better in love as well as in seamanship. According to an 1837 report in the New York Herald, violence could be the result of a more direct assault on the officer’s manhood. Describing the dispute between George McCowen, the fi rst mate of the Powhattan, and seaman John Chestnut, the paper explained, “The affray took place in consequence of the preference shown to the sailor, in spite of the mate’s assiduity, by a pretty blackeyed girl, a passenger, whose good opinion each were eager to obtain.”77 When the passenger returned the affections of Chestnut rather than the mate, McCowen found himself not only the loser in the contest for the woman’s affections but also in the precarious position of having been bested by one of the crew. According to the Herald, “It seems, however, that the lass considered Chestnut ‘the proper man,’ which excited the ire of the mate, and drove him ‘into such a passion’ that he attempted to knock his rival’s brains out with a large billet of wood, but Chestnut’s head, very unlike his heart, not being made of ‘penetrable stuff,’ he escaped with a severe contusion.”78 Though the editors of the Herald played the story for laughs, the confl ict had near deadly seriousness for Chestnut and McCowen. Chestnut felt compelled to turn to violence once humiliated by his public failure as a lover. Not only had he lost out to his romantic rival, he had been bested by an inferior. He sought to restore at least some measure of his wounded honor with that billet of wood. Despite the need to maintain an honor and status distinct from and above that of regular seamen, officers also had to measure up by the standards the men used for themselves. As a result, officers were not above

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resorting to their fists to show their men that they were their betters in fisticuffs, and that their lofty station made them no less hardy than the men. Because boxing was an important measure in the forecastle, some captains exploited their own abilities to reinforce their image in the men’s eyes. On the Lorena, mate Ebenezer Williams said of one of the seamen that “he should like to have the son of a bitch ashore where he could have a fair chance at him to see who was the best man.”79 In an assault case from 1849, the captain of the Jason indicated he was willing to brawl with his recalcitrant crew. “The captain,” according to one seaman’s testimony, “pulled off his coat and asked if we wanted to fight.”80 Of course, the captain of the Jason stripping down to spar with the men was a risky proposition. Should he be defeated, the loss of face and control could be dangerous for order on board, but even a victory might undermine more than reassert the captain’s honor and authority. Such was the complexity of his position. He needed to be man enough to be unafraid and capable of holding his own in a fistfight, but his status and position precluded such a fight actually taking place, for what kind of gentleman stoops to the level of a brawl with common seamen? On the decks of the Jason, the fi rst mate stepped in to insulate his captain from the fray. The mate, John Hutchinson, saw it as his job, if necessary, to best the men physically. As the captain readied himself for combat, “The mate told him not to pull off his coat[,] that he could walk through the whole of us.”81 Later, the mate improved on his captain’s boast, when he “shouted that he would take four of us at a time.”82 Hutchinson’s bold challenge illustrates the special pressure officers felt to not just match but exceed the manly prowess of the men. In the case of Hutchinson’s boast, he measured himself four times the man of his opponents. It is perhaps not surprising that Hutchinson felt the need to expand on his captain’s claim, for mates found their honor challenged more often than captains. Orders came from the mate. As Dana explained in The Seaman’s Friend, “The master does not superintend personally; but gives general instructions to the chief mate, whose duty it is to see their execution.”83 Therefore, it was the mate whose command was more likely to be tested at every turn. Perhaps this direct contact and constant challenge helps explain why Hutchinson’s outlandish boast so outstripped that of his captain. Indeed, Hutchinson saw his honor as in support of the captain’s. He would take the men on four at a time so that the captain needn’t so much as remove his coat. When the system worked as it should, masters and lesser officers conspired to defend one another’s dignity in related but distinct ways. If cap-

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tains had to remain vigilant against saucy or insolent behavior, mates fought this battle moment to moment. Moreover, their diminished position made their orders more subject to grumbling than those that came from on high. William Sullivan said of mates that “disagreeable orders from them, trouble seamen more than when they come from the captain himself.”84 Officers were expected to be gentlemen and, like the captain, lead by example. Since the mate was the traditional keeper of the ship’s log, his thoroughness and integrity were important qualifications.85 Just as in the captain, serious character defects would disqualify a man from serving as mate. Judge Peleg Sprague described the sadistic mate of the Edward Everett as “a man unfit to hold office on board ship.”86 Linguistic convention helped confi rm the officers’ status as gentlemen even if their own behavior did not. “It is almost unnecessary to say that the addition ‘Sir’ is always to be used in speaking to the master or either of the mates,” explained Dana, adding, “‘Mr.’ is always to be prefi xed to the name of an officer, whether chief or second mate.”87 Many young men from elite families found this one of the more difficult aspects of sea life to internalize. Melville mocked the formal gentility of officers at sea in Redburn, remarking, “I was not very long in fi nding out that, at sea all officers are Misters, and would take it for an insult if any seamen presumed to omit calling them so. And it is also one of their rights and privileges to be called sir when addressed—Yes, sir; no, sir; Ay ay, sir: they are as peculiar about being sirred as so many knights and baronets, though their titles are not hereditary.”88 Although the respectful address officers demanded amused Redburn, it served a serious function. Officers insisted upon being identified as gentlemen as a means of reinforcing their authority and the legitimacy of their command. Indeed, as Melville noted, the more shabby the man in the office, the more important it would be to call him “sir.”89 Although many mates took seriously their roles as gentlemen and aimed to earn the appellation sir that they universally demanded, others forewent leading by respect, opting instead to rely on brutality as the source of their authority. Such was the case for the so-called bucko mates, who became infamous on the packet lines by the 1850s. Mates became so bad, opined Sullivan, that “perhaps there is no remedy, but by the acts of congress.”90 Mr. Hutchinson of the Jason certainly shared some characteristics with the dreaded buckos. He made his managerial approach clear when he fi rst came aboard at Cadiz. He introduced himself to the crew by saying “to the men that he would let them know he was a d__d rascal, and called the men names.”91 By identifying himself with a curse and as a “rascal,” Hutchinson asserted his authority in brute terms, subverting any

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genteel expectations at the start. He was, as he warned the crew, no soft gentleman, and his mastery would be of the direct, physical variety. “Mates are sometimes provoking and unreasonable, and may take pleasure in showing their power,” noted Sullivan, but what options did the men have in the face of a Mr. Hutchinson or worse? Sullivan said of bad mates, “If they cannot be borne with, the remedy is to apply to the captain.”92 Successfully and respectfully petitioning the captain for redress about a bad or brutal mate, however, could be a risky endeavor for all involved. In theory, mates found themselves caught between the men and the captain. On the one hand, their position was untenable without the good graces of the men; on the other, a mate who did not lead his men fi rmly could lose the captain’s confidence. When the mate overstepped his authority, the men would petition the captain for redress, and, if the men were successful, the authority of the mate could be permanently compromised. In this way, mates had to worry about having their authority undercut by the captain. Although the captain could only strip his mate’s rank for gross disobedience or incompetence (as mates were, technically speaking, employees of the ship rather than of the master), if the captain sided with the men over his mate, it spelled trouble for the junior officer.93 Because of the danger of allowing the men to play the captain and the mates against each other, captains needed to take care to discipline lesser officers in a way that did not undercut them before the men. In The Seaman’s Friend, Dana noted, “If the master sees anything which he disapproves of, and has any preferences in the modes of doing work, he should call the officer aft and speak to him; and, if, instead of this, he were to go forward and give orders to the men, it would be an interference, and indeed an insult to the officer.”94 Dana went further, noting that if a captain were to involve himself too closely in the way his mate does his job, “it would probably lead to difficulty.”95 In his Shipmaster’s Assistant and Commercial Digest, Joseph Blunt echoes Dana’s advice, explaining, “If the master disapprove of the mode of doing anything, he should, when possible, call the officer aside and tell him of it; instead of going forward and giving orders to the men. In this mode the men are led to preserve proper respect for the officers.”96 Of course, following Blunt’s and Dana’s advice could be perceived as a broader challenge to order on the vessel. Brutal mates knew they could often rely on a master’s unwillingness to undermine their authority. Captain Russell H. Post on the Elizabeth Dennison promised his crew he would investigate the conduct of the second mate that had so enraged

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William Merchant. Although he eventually sided with the mate, he did warn him: “I told him ‘I inflict punishment myself on board my ship and permit no one else without my orders.’”97 On some occasions, the captain testified unfavorably at his mate’s trial. In a case from 1837, Captain Frederick Hewitt complained that “King did not behave in the difficulty as a chief officer should have done.”98 Often, however, the men found frustration when they complained to the master. The officers’ solidarity with their fellow “gentlemen” outweighed the captain’s paternal imperatives to protect his crew. Such was the situation in one 1835 case, when the men complained to their captain about “the Chief Mate, who is a morose and evil disposed, turbulent man, and not a man of truth.”99 Instead of protecting (or even listening to) the complaining seaman, the “Captain distinctly and imperiously [refused] to hear, or let the man explain the mate’s conduct to him, or state the circumstances in his defense: the Captain [replied] audibly, and passionately, ‘No, you rascal, I will not hear a word from you.’”100 Captains were just as likely to complain of the laxity of their mates as they were to check their excesses. In an 1847 case from Dana’s practice, a captain criticized his mate for leniency. According to the second mate, “The captain said to the mate ‘why don’t you lick him; if I had been mate, I should have licked him long ago.’”101 Of course, from a legal standpoint, all physical correction had to stem from the captain’s authority, but this sort of passing the authority down to the mates had benefits for both captains and other officers. It allowed the captain to remain symbolically aloof and legally disconnected from such not explicitly authorized punishments. For the mates, by contrast, it delegated a measure of the captain’s broad authority to their hands, where it could be put to practical use in the day-to-day operations of the vessel. In 1857, Captain James E. Cole had a dreadful time with his two officers on board the Sartelle. He noted that his mate’s failure to keep the appropriate air of masterful superiority jeopardized his ability to govern the ship. “Instead of commanding the men in an Officer like manner, he would go among them and ask them to do work in a way that one seaman would ask another,” complained Cole.102 Cole explained that Mr. Sears’s treatment of the crew as equals compromised his command: “Only such work was done as was ordered by myself shewing the crew plainly that all the cause for doing any work originated with myself alone. This conduct soon had a bad influence over the crew.”103 While he slept, the officers paid little attention to keeping the ship on schedule: “I had previously discovered that at night advantage was not taken of changes in the wind to hasten

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my passage. That at daylight there was most always yards to trim & sail to make when I know the interests of the ship had suffered because this had been neglected through the night. I therefore made it an order that at the end of each watch at night I should be informed what the weather was & what sail was on the vessel.”104 Exhausted and harried, Captain Cole found himself at his wit’s end by the time he confronted the insolence of seaman Stephen Murphy. When his attempt to punish Murphy turned violent, Cole felt that some of the blame for the near-fatal stabbing he suffered at Murphy’s hands should fall on his mate for failing to build the right kind of atmosphere on the Sartelle. After all, had Sears done his job, Cole would not have had to give the minor order that sparked confl ict with Murphy.105 Seamen often found it profitable to play the mates against the captain, and several mutinies saw either the participation of the mate or at least a request by the crew for the mate to become the new captain at the completion of their coup d’état. Because of this, the mate had to be careful to avoid anything that might be construed as an attempt to usurp the captain’s authority. Samuel Tully even gave up his command of a vessel for fear it would appear that he plotted against the elderly captain who asked him to lead in his stead.106 The precariousness of an officer’s position increased as rank decreased, for the men had scarcely more than contempt for the lesser mates—men who often had little to distinguish them in experience or even pay from the before-the-mast hands. “The second mate and other inferior officers do not stand upon so fi rm a footing as the chief mate,” noted Dana.107 While the captain was insulated by his rank and his perch on the quarterdeck, a second mate stood shoulder to shoulder with the crewmen, cajoling, badgering, and bullying them into work. His precarious position made the second mate subject to even more insolence than the mate had to endure. Melville summarized the condition of the second mate, explaining, “On the whole, he lives a puppyish life indeed.”108 Insolence or even attacks on the second mate and retaliatory violence on the mate’s part were common precisely because there was so little distance between a second mate and a regular tar. Only a few dollars a month in pay, a small measure of authority, and the right to be called “mister” distinguished the lower officers. Orrin Day, second mate of the N. W. Bridge, described an attack by seaman Noel Brooks while docked at Havana in 1856: “He began to curse and swear. I asked him what the matter was [and] he said it was none of my damn business. I told him that if he gave such answers I would come up and heave him off the yard. He said if you come up here or any other son of a bitch he would split him down.”109 As Day began to climb aft to

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chastise Brooks, a “Jewel Box” about eight inches square sailed down from the yards and struck Day in the head. He insisted that it had been hurled by Brooks. Brooks, for his part, claimed it had come loose and fallen on its own. The jury was unimpressed, and sentenced Brooks to thirty days in jail and a fi ne of ten dollars for trying to brain Mr. Day, but the sheer fact that Day found himself in harm’s way illustrates the unique hazards of being a second mate. A man of more lofty rank would never have been expected to climb aloft after Brooks. Indeed, if he refused the request of the chief mate to descend, the second mate would likely have been sent after him. At once seaman and officer, the second mate drew special ire from the regular seamen and received little support or respect from his betters. In the navy, as in the merchant service, a lesser officer who failed to make much of an impression on the men risked surliness or even an open challenge to his authority. Particularly in the navy, where many junior officers received their commissions through political connections rather than maritime experience, such “rosewater sailors” faced a tough hazing from the forecastle.110 In the merchant service, the lower mates had even less to protect their dignity than the chief mate, who, because of his record-keeping responsibilities, could not easily be removed from his office. The second mate, on the other hand, could be broken down to regular seaman at the whim of the captain.111 Working with seamen while at the same time having authority over them put the lesser officers’ authority in more jeopardy than that of the other mates. “The second mate works like a common seaman, and the men seldom know what is to be done until they receive their orders in detail from the chief mate,” explained Dana.112 Lesser officers had to at once be a part of and distinct from the crew. In some cases, the men perceived taking orders from the lowly second mate as demeaning. The second mate’s tenuous claim on the men’s obedience could be further diminished with the presence of other minor officers. Shortly after the Guy Manning’s arrival in Liverpool in 1849, John Quinn, the second mate, asked a seaman named Murray to retrieve the luggage of the steerage passengers from the hold for transfer to the steamer that would take them to shore. A few minutes later, Quinn found Murray “under the forecastle with his hands in his pockets doing nothing.”113 Quinn began to scuffle with Murray, when John Philips, the fi rst mate, came down and asked, “What do you mean you scoundrel? Why don’t you go aft when Mr. Quinn orders you to?”114 “I asked him who he was going to obey,” explained Quinn, “me or the boatswain. Murray said he did not know who to

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obey. I told him to obey me.”115 Significantly, it was not Quinn but the fi rst mate, Philips, who disciplined Murray. Occasionally, captains would try to build up their lower mates’ precarious authority. When he served as second mate, career seaman and diarist Jacob Nagle recalled one crew that threatened to throw him overboard, but his captain reasserted his confidence in Nagle.116 William Merchant’s trouble started as a disagreement with the second mate. When Captain Post ordered Merchant punished, he made sure it was this mate who infl icted the punishment.117 More often, however, neither the mate nor the captain took much interest in the second mate, unless there occurred a substantial breakdown in command. Whatever his rank, an officer relied heavily on his stature among the crew to govern effectively. Although officers had a different vision of personal honor than regular seamen, both shared a defi nition of the value of a rugged manhood that served as the basic measure of a man at sea. Many of the qualities that mattered in seamen mattered equally for their officers: truthfulness, personal integrity, strength, courage, and the refusal to back away from a public challenge—all helped defi ne the ideal man, whether he served aft or fore. Officers, however, had a heightened burden, for their reputation had to be maintained on land as well as at sea. Captains in particular had to blend the potentially confl icting elements of gentility and manliness to be successful on the decks, among the passengers, in the courts, and in the offices of the counting house. The codes of honor that defi ned both seamen’s and officers’ world provided a language that could be read and understood by all parties. It molded the forms of self-expression and served as a critical measure of status at sea. Although often at odds with each other, seamen and officers nevertheless had to subscribe to similar defi nitions in order to make even confl ict at sea understandable. Competing codes of honor governed sea life. By establishing the limits of what a seaman would accept on the one hand, and the justification for an officer’s power on the other, the gendered world of the ship provided a framework so that the “iron men” at sea could live, work, and even fight in a way that could be understood by all on board. Whether subtle or explosive, whether between men or between men and officers, codes of honor served both as a bond and as a point of friction on antebellum US vessels. As the regulations grew, and as courts and consuls began acting more often as epilogue to clashes over honor at sea, the law inserted itself further into cultural debates over defi nitions of mastery and codes of honor. Where, in the early years, men relied on their own mettle as “men,” and

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officers on the manly mastery encoded in their rank to legitimate their position and behavior, those justifications became defi ned by, undermined from within, and debated through the legal system, rather than simply on the decks between men. By the 1850s, as officers touted their reputations in the press prior to trial, and as seamen demanded that the courts restore honor wrongfully usurped by overreaching captains, the debates about honor shifted from the decks to a new front, framed and structured by the logic of the law itself. As such, these confl icts touched on broader themes that reached beyond self-defi nition and personal honor, and into questions of citizenship and the relationship between individual Americans and the Republic as a whole.

Pa r t I I I

Citizen

S

hips, seafaring trade, and seamen were central to the American national project between the ratification of the Constitution and the beginning of the American Civil War. Seamen sat at the heart of the early process of national self-defi nition. For most folk ashore, the federal government was, beyond the post office, distant and abstract. For seafarers, the federal code was emblazoned across their work agreement. Moreover, as the laws governing actions on board ships were fleshed out through the decisions of federal judges, seafarers and officers both were bound more tightly to the nation, literally. Now the federal government (through its courts) was one’s champion, and one’s site of possible redress when things had gone bad. Regulating international waterborne trade was the fi rst significant task taken up by the new federal government, and, due to impressment into the Royal Navy, seamen’s citizenship was among the fi rst of the major crises faced by the constitutional Republic. The process of using the federal consuls and courts as arbiters of their working conditions bound seamen to the nation. Even if seafarers shared, as some historians argue, an aquatic brotherhood that transcended nation and race, by using the connection to the national government, seafarers on American-flagged vessels became intricately linked to, invested in, and an important symbolic part of the national project. Matters at sea forced the nation to defi ne the parameters of citizenship. Some jurists saw explicitly that the maritime setting would afford an opportunity to enhance the power of the new federal government and move the United States toward becoming a single, coherently governed nation. Outside this cabal of federal judges, the Jacksonian era was marked by suspicion of and hostility toward expansion of the national authority, yet, in the hands of hundreds of undertrained consular appointees, the United

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States’ power was being defi ned by ad hoc decisions in distant ports, not just in their adjudication of the matters that came before them but also as an image of the nation abroad. Finally, this mixture of participants— seafarers fighting with officers on ships, judges seeking an expansion of federal power, consuls trying to make sense of the matters that came before them while attempting to ward off fi nancial ruin in distant ports—all served to defi ne the nation not only in nuts-and-bolts, day-to-day ways but in grander theoretical terms as well. The worlds of the sea, the law, and the self-conscious literary attempts to defi ne the young nation’s character all intersect in dramatic and defi ning ways. h Both of the previous parts discuss the ways in which national identity and American ideology impacted seafarers and shaped how they became seen as a part of the rising Republic. “Law” explores how the regulation of the maritime environment was central to the building of an increasingly powerful legal apparatus for the new nation-state. “Honor” examines how personal defi nitions of worth and conformative conventions of the trade fused with growing social and political imperatives in the Jacksonian age to imbue seamen’s sense of honor with a sense of themselves as citizens of a proud nation. “Citizen” focuses on the relationship between seafarers and the nation, and the nation and seafarers. In literal and symbolic ways, seamen became embodiments of the American project around the world. Chapter 7, “Our Man in Liverpool,” argues that the system of consuls and commercial agents that was haphazardly developed to address the needs of American vessels and citizens abroad marks an important site for the defi ning of the national identity. These men, political appointees often with limited maritime experience or legal training, found themselves the arbiters of who “counted” as an American. Armed with no clear defi nition of their duties and powers, consuls had to make sense of a complex web of complaints from men; demands from officers; pleas from destitute, abandoned, or ill seafarers; and all sorts of requests for protection, favors, and the support of the national government. Like a more confused, less coherent version of the judges who sought to bring order to the waters and power to the government discussed in chapter 2, American consuls, prompted by the seamen who came to their offices for help, had to forge, on their own, important aspects of national self-defi nition, including who is a citizen, who may make claim to the rights of American identity, and what rights that appellation confers.

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Chapter 8, “The Very Laws That Preserved Their Liberty,” explores how seafarers came to see themselves, and make use of their identity as, Americans. Not only by invoking the claims of national citizenship in an age of radical republicanism, but also by asserting their importance to the economic growth and military defense of the nation, US merchant seamen helped guide the developments in law and the rhetoric of the Revolution to their own ends. Just as the federal government grew more coherent in meaningful ways through the process of federal courts attempting to structure seaborne labor and commerce, seamen sought to force the new nation to defi ne, meaningfully and concretely, the powerful inchoate promises of citizenship. In particular, the chapter looks at two eras in which seamen’s visibility on the national stage offered an opportunity to press their claims of rights and inclusion. First, the impressment crisis of the 1790s–1810s gave seamen an importance, both literally and symbolically, to the nation that afforded opportunities to press their case for protection and inclusion by the nation. In the later antebellum years, from the passage of the 1835 Crimes Act through the beginning of the Civil War, a combination of (a) Jacksonian democracy’s assertion of white, male equality; (b) northeastern reform movements working to remove the demeaning, dehumanizing aspects of punishment at sea, in slavery, and in prisons; and (c) a growing nativist panic about the dangers of an increasingly “foreign” labor force at sea with implications for national commerce, safety, and character came together to give seamen another opportunity to press their advantage. Seamen turned the interest in their affairs and conditions to their own use. Rather than simply accepting the depictions of themselves as infantilized drunkards in need of “uplift” promulgated by reformers, seamen used this attention to assert their rights in increasingly national and legal terms, and demanded that the nation afford them not pitying charity and paternalistic protection but the rights of free men of honor, and the respect owed craftsmen engaged in the work of the nation. Finally, chapter 9, “We Are Eminently a Maritime People,” examines the sweep of the discourse that moved from ships to courts and out to the wider world of American ideas and letters, but is rooted in the later antebellum era. By the 1850s, the rise of a self-consciously American world of arts and letters sought to defi ne the nation and capture its citizens’ spirit. Symbolically, the sea and the law were cornerstones of that project of national self-defi nition. That so many explicitly “American” writers and thinkers not only drew metaphorical inspiration from but also had fi rsthand experiences with seafarers and their claims indicates the connectedness and significance of these discourses.

Chapter Seven

Our Man in Liverpool: The Consular Service and American Citizenship

The Consul to a foreign nation is sent to be the guardian of all the interests of his country, and sacred is his trust. . . . He is the protector of his countrymen. —C. Edwards Lester, My Consulship1 If the consul be an upright and independent officer, it may be of immeasurable value to the oppressed and friendless mariner in distant regions. —Morris v. Cornell 2

T

he new US consul for the port of Liverpool arrived at his post in 1853 with a far deeper maritime background than many of his fellow consuls of the era. From a seafaring family, he’d been employed as a young man by the Boston Custom House for two years before leaving to pursue a literary career. By the time he took up his post in the “dusky and stifled chamber”3 on Brunswick Street near the Liverpool docks, Nathaniel Hawthorne was a leading literary figure and one of a cohort of writers attempting to craft a self-consciously American literary identity. Despite his preparation—both in matters maritime and literary—Hawthorne was surprised by the amount of work, the limited pay, and the confusing instructions and regulations coming from Washington. The consular service was, in his estimation, something of a mess, and he complained bitterly in correspondence and his notebooks about the problem. When he arrived in Liverpool, Hawthorne inherited a position that had operated for its entire history unsure of its powers, unclear in its duties, but nevertheless a lifeline for American citizens and American commerce abroad. As the embodiment of American identity overseas—and, for mer151

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Figure 7. Three vessels, including the New York–to–Liverpool packet Pennsylvania, are depicted in distress in a storm off the British coast. Consuls were tasked with ensuring that seafarers who were shipwrecked, abandoned, or absconded from their vessel found their way home. Although many hoped that their post as consul would mean lucrative fees and an advantaged position to trade on their own account, they frequently discovered that unclear duties and slow or inconsistent repayment from the Department of State made consulship a perilous duty.

chants, shipmasters, and seafarers, the most tangible form of federal authority—the consular service became an important place of national selfdefi nition as these oft-untrained and underinformed officials tried to make sense of the meanings, rights, and protections of national citizenship in an era in which those issues were still taking shape. In some ways, the consular service was emblematic of the young Republic’s federal government more broadly. “The deficits in the administrative machinery of the national government before the adoption of the Constitution were manifest in every hand,” argues Emory R. Johnson, and “the foreign service was no exception.”4 Although the service grew more coherent over time, throughout the antebellum period it remained a chaotic, ill-defi ned aspect of federal administration. From the beginning, the consular service was an important, yet overlooked function of the early federal government. Untrained, underpaid, and in some cases utterly disinterested in the day-to-day tasks of their position, consuls nevertheless became a cru-

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cial line of defense for both regular tars and officers. Outside the United States, consuls represented the fi rst and only available vestige of national authority. The fi rst half of the nineteenth century saw Congress and the federal courts engaged in an effort to extend the power of the nation, but in practical terms, that task fell to consuls. Particularly after the 1835 act expanding the list of shipboard crimes, the consul’s office became the venue in which altercations at sea were fi rst argued. The consul heard the complaints of captains and the excuses of the men in cases of revolt and insubordination. He heard justifications for desertion and for putting men off of vessels. He heard claims of abuse from men against officers. Even if his authority did not permit him to judge such cases in a legal sense, the reports he wrote and the depositions he took became the core of a later case in federal court. Politically, the consular service was a backwater, a patronage plum used to reward unimportant supporters who were lured by the possibility of wealth, prestige, influence, or commercial opportunities they saw as benefits of the job. To most Americans, the consular service was simply too distant to matter, and the majority “had little occasion to interest themselves in the character or usefulness of our representatives abroad.”5 In both the eighteenth and nineteenth centuries, and in the historical scholarship that has followed, the consular service has been underexamined.6 The consuls were, in essence, facilitators of commerce, with, as an afterthought, a national purpose. Much of the work was mundane. The records of consulships in major ports contained endless volumes of carefully worded “Marine Extensions of Protest,” formal records justifying the late arrival of a ship (usually because of weather) that could be used for insurance purposes or to explain to owners back in the United States that the captain hadn’t dawdled on the voyage. Nevertheless, although many of the tasks that fi lled consuls’ days did not fi re their own imaginations, let alone that of the nation, the position became a critical site in the ongoing process of defi ning American identity, citizenship, and the role of the law. The period from the creation of the independent consular service in 1792 to the Civil War saw the growing importance of consuls as agents of the national interest. Initially, consuls played an important role in the impressment crisis beginning in the 1790s, serving on the front line in defending the rights of American citizens forced into the Royal Navy. After 1815, however, consuls’ primary duties involved ensuring that American ships and American commerce moved smoothly through their ports. Seafarers often exploited—and in the case of impressment were exploited by—the mutability, unverifiability, and lack of defi nition of na-

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tional identity in the late eighteenth and early nineteenth centuries. Seamen not only traveled from nation to nation and jurisdiction to jurisdiction by virtue of their profession, but they often made use of the confusions on the margins of the societies they passed among, shifting their identities and allegiances as benefited them at the moment. Impressment proved that the state could also make use of the unverifiable character of citizenship among seafarers, defending whatever standard or rejecting whatever “proof” of citizenship suited its manpower needs. Despite its importance to seafarers and American commerce, the consular service never became a priority for any antebellum administration. According to consular historian Charles Stuart Kennedy, “Neither the secretaries of state of successive administrations nor their clerks in the State Department paid much attention to the consuls’ activities.”7 According to Kennedy, the nineteenth-century consular service was “lacking in pattern or continuity; it [was] even chaotic. Untrained men were acting on their own with minimal guidance, responding to local events, each according to common sense and instinct.”8 In essence, they operated out of their own personal and idiosyncratic understanding of their duties. By extension, they were forced to come to their own individualized defi nition of the protections of citizenship, of the rights of laborers, of the limits of officers’ authority, and of the relationship between individual Americans and their national government. The problems Hawthorne faced during his four-year tenure in Liverpool reflected the problems seen by consuls throughout the antebellum era. A number of administrations acknowledged the problems, but failed to act. As secretary of state, Martin Van Buren investigated problems with consuls in 1830. His successor, Edward Livingston, admitted in 1833 that the fee structure of the consular service was “injurious to the reputation of our country. . . . oppressive to our commerce,” and “degrading” to the consul, but reform lagged.9 After decades of confusion and neglect, a movement to reform the service began to take hold. A petition to the Senate by G. W. Montgomery, US consul at Puerto Rico, in 1838 also went unadopted,10 but a small group of consuls, merchants, and administrators who had been agitating for change for decades fi nally prompted a major, if incomplete, overhaul in 1856, toward the end of Hawthorne’s term. The specific problems a consul faced varied by post. In Tahiti, consuls contended with large numbers of men deserting from whalers, preferring the ease of island life over the harsh and dangerous duty on board a whaleship. In Honolulu, however, the problem was reversed, as captains sought any excuse to dump expensive American seamen in favor of cheaper Ha-

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waiians.11 In some cases, the problems became bizarre and outlandish. James R. Lieb was forced to house a lion that had been gifted to the president of the United States from the ruler of Tangier while pleading with the secretary of state to arrange transport for the beast to the United States.12 In 1829, the consul for Paris wrote to Washington requesting money for transport home of six Osage Indians who had been brought to France by a French officer who had hoped to profit from displaying them but had left them destitute and starving.13 The consular service took provisional shape in the hands of Thomas Jefferson, the fi rst secretary of state under the Constitution. Two letters of instructions from Jefferson and one act of Congress articulating the basic parameters of the consuls’ responsibilities served as the defi ning core of the consular service throughout the antebellum period. Later, three acts of Congress, one in 1803, one in 1840, and a major restructuring of the service in 1856, expanded the responsibilities (if not the authority) of consuls to serve as protector of American citizens and facilitator of American trade abroad. The consular service of the United States began both haphazardly and inauspiciously. The fi rst consul to hold the title, William Palfrey, appointed to France by the Continental Congress in 1780, was lost at sea before ever reaching his post.14 Even for those who made it far enough to take up their position, confusion reigned among the few consular officers appointed before 1789. John Adams and Franklin both despaired of the state of US foreign affairs and urged, in vain, for the creation of a coherent consular system.15 Amid the confusion, however, some structure began to take shape. By the time the United States secured its independence in 1783, Congress had already divided the foreign service into two classes of overseas agents: “ministers” and “consuls.” Although the distinctions and specific duties of each group overlapped and remained murky, ministers served primarily diplomatic functions, while consuls (still sometimes described as “agents” or “commercial agents”) focused their activities on facilitating US commerce and aiding American citizens abroad.16 Congress appointed a small handful of consuls before the Constitution came into effect, but no coherent system of appointment, expectations, or pay had been created. Jefferson, who witnessed the shortcomings of the existing “system” fi rsthand as US minister to France from 1785 to 1789, sought to bring some coherence to the small but growing collection of US agents and consuls abroad. A major difficulty stemmed from the absence of any mention of such an office in the Constitution. Whereas the Constitution granted the federal courts jurisdiction over “admiralty

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and maritime” matters,”17 and afforded Congress the right to legislate for Americans on the seas,18 the role—or even the existence—of federal agents in foreign ports was not addressed. Prior to 1792, Congress appointed consuls one at a time as a need arose, often with wildly different duties and schemes of pay.19 As secretary of state in George Washington’s administration, Jefferson stepped into this vacuum of authority to attempt to bring some coherence to the “system” he inherited. The consular service would bear the imprint of Jefferson’s structure for the next half century.20 Indeed, the post Hawthorne took up in 1853 had not changed in its main contours since Jefferson’s day, even if the scale and practice of the American shipping it sought to serve had changed dramatically. Although President Washington urged Congress to bring forward some legislative defi nition of the consuls’ responsibilities, the legislature failed to act until 1792.21 Without the aid of Congress, Jefferson issued two circulars, one in 1790 and the next the following year, that provided instructions for consuls.22 The circulars, built in part out of provisions he had previously negotiated in a treaty with France, served as the basic instructions for the men serving as consuls. In the fi rst circular, Jefferson requested that each consul “communicate to me, every six months, a report of the vessels of the United States which enter at the ports of your district,” and delineated the differences between consuls’ and vice-consuls’ authority. The fi rst circular also granted consuls the right to wear naval uniforms, which it then described so consuls could have them made.23 What the well-dressed consul should wear continued to be an issue of symbolic importance. As representations of the United States, what they wore constituted a small but significant project of national self-defi nition. How a consul, often the only official representative of the nation in a port, and sometimes the only one in an entire country, comported himself reflected upon the nation as a whole. Jefferson’s solution was to offer consuls the garb of naval officialdom, but others insisted that such a uniform did not befit the symbolic representative of a revolutionary Republic. An ornate uniform was designed and prescribed for consuls in 1815, although few actually adopted the garb for any but formal state occasions.24 The costume’s use was reiterated in an 1838 circular, but, by 1853, Secretary of State William L. Marcy urged consuls to eschew such brocaded puffery for garments that reflected “the republican simplicity of the country they represent.”25 Marcy’s call for a democratized costume did not satisfy all consuls, however, some of whom felt their uniforms were necessary for them to be taken seriously by officials of the nation in which they served.

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Hawthorne, arriving at his post in the year the old uniform began to be phased out, bemoaned the lack of a uniform he felt would be in keeping with the importance of his station.26 Finally, Jefferson ended his instructions with a broad entreaty not to annoy officials of the host country: “It will be best not to fatigue the government in which you reside . . . with applications in unimportant cases. Husband their good dispositions . . . never indulging in any case whatever a single expression that may irritate.”27 In this last request, Jefferson again understood the ways in which consuls would be reflections of the young Republic to the world. Particularly in the early days of the Republic, any precedent set could impact the new nation’s image, and in the difficult international situation following independence, his advice was all the more important. Sartorial suggestions and instruction for consuls to comport themselves carefully aside, Jefferson’s initial missive did little to clarify consular duties and authority. The 1791 circular repeated the request for regular correspondence and complained that Congress had yet to act in defi ning the consular service more fully, but did little to clarify the specifics of a consul’s job.28 That Jefferson had to repeat his plea for regular reports from consuls indicated a problem that continued to plague the consular system for decades to come. As late as 1853, the year Hawthorne took up residence in Liverpool, the State Department reiterated Jefferson’s plea that consuls remember to write home. “It is found that no returns have been received from several consulates,” noted Secretary of State William L. Marcy in a warning to consuls, “and that in some of those transmitted, there are, apparently, irregularities in the statements required to be made semi-annually to this Department. . . . The omission to make reports . . . will be regarded as a sufficient cause for removal from office.”29 Given the many reasons other than ability, training, or diligence that brought men into consular posts, it is no surprise that the dispatches sent back to Washington varied in frequency, organization, and quality. Moreover, considering the confusing instructions given to consuls, it would be at best challenging and at worst impossible for them to apply federal power systematically. Nevertheless, US consuls were in the position to shape incompletely, and on occasion incoherently, the meanings of federal authority for those who came into their offices. Congress fi nally articulated some basic defi nitions for consular service in 1792.30 The act made consuls responsible for “the protection of the interests of American citizens, especially seamen.”31 This law, which required consuls to handle the affairs of Americans dying abroad, “succor

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American seamen in distress,” and arrange free passage for stranded seamen back to the United States, made explicit the consul’s role as protector of and aid to American seafarers. 32 However, the act was long on responsibilities and short on authority. It assigned consuls a list of duties while leaving the character and limits of the authority they wielded undefi ned. Almost immediately after passage of the 1792 act, consuls found their primary task of aiding and protecting American seamen expanding in importance and complexity. In 1793, France and Britain commenced what would be twenty-two years of warfare. The confl ict impacted American trade as the United States tried to remain neutral, but found both warring parties unwilling to countenance American trade to its opponent. More important for American seafarers, however, was the rise in impressment, the coerced conscription of seamen into the British navy. The increase in the Royal Navy’s need for manpower brought a corresponding expansion in the defi nition used by British captains to determine who was a subject of the British crown and thus available for impressment. Near the turn of the nineteenth century, American consuls, particularly in British ports, found themselves awash with petitions and pleas from seamen who claimed to be American but had nevertheless found themselves pulled off of US vessels and forced to serve the British navy. Between 1804 and the beginning of the War of 1812, the consul in London alone received 7,854 petitions of impressment. 33 Part of the problem stemmed from the lack of a clear definition of precisely who was a citizen. No federal defi nition of American citizenship existed until after the Civil War. The primary evidence of a seafarer’s status as a citizen was the Seaman’s Protection Certificate, a brief document, usually issued by a clerk in the customhouse in his home port, which identified his place of birth and gave a short description. Some seafarers went to sea with no more proof of their citizenship than a note from their mother. 34 Consuls, who in the best of times lacked authority and the respect of the national officials where they served, found themselves overwhelmed. 35 James Maury, consul at Liverpool during the height of the impressment crisis, complained, “I observe what, in America constitutes a citizen of the United States differs from what is here considered the justification. A subject of this country, settled since the peace in the territories of the U.S. altho’ admitted there as a citizen is nevertheless here a subject of this country.”36 Maury’s exasperation illustrates the complexity and fluidity of identities in the Atlantic world. How, in an age that offered no clear legal defi nition of who was a citizen, could consuls effectively defend the interests of American seafarers

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in the midst of the impressment crisis? At some posts, consuls began seeking to prove citizenship for seafarers without protection papers by issuing the papers themselves, 37 or through an interview designed to prove a seaman’s origins. 38 In these cases, consuls took on the task of adjudicating citizenship themselves. Thus, despite their limitations, consuls became an important aspect of the response to the crisis, serving as intermediaries between impressed seamen, British authorities, and the Department of State. Amid the throes of the impressment crisis, consuls began noting another major issue stemming from US vessels in the early years of the Republic. Because seamen who abandoned their vessel forfeited their wages, unscrupulous captains could seek fi nancial benefit by driving crewmen to desert. Desertions caused problems for consuls, who were, according to the 1792 act, responsible for seamen left stranded in their ports. Destitute seamen dumped in foreign ports by officers looking to hire cheaper labor in those ports turned to US consuls to avoid starvation and seek passage home. Although the State Department was required to reimburse consuls for such expenses at the rate of twelve cents per man per day, funds were often slow in coming, and, in ports with a large population of American seafarers, consuls found themselves overextended. 39 The aid afforded to shipless seafarers in foreign ports further bonded seamen to consuls as benevolent representatives of a nation that provided for their welfare. Congress addressed both the impressment and the coerced-desertion problems with a new law in 1803. The act made explicit the requirement that captains of American vessels “deposit [their] register, sea letter, and Mediterranean passport40 with the consul, vice consul, commercial agent or vice–commercial agent,” or risk a five-hundred-dollar fi ne.41 It also required masters to maintain a complete copy of the ship’s articles, indicating every member of the crew and his citizenship. Additionally, the act put in place a fi ne of three months’ wages against captains for any man improperly discharged, with two-thirds of the fee going to the wronged seaman and the fi nal third “to be retained for the purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States who may be desirous of retuning to the United States and for the maintenance of American seamen who may be destitute.” Finally, the act required consuls to report an accounting of these funds to the State Department twice yearly.42 The 1803 act expanded the responsibilities of the consul as protector of American seafarers. Although it did not defi ne the parameters of consuls’ authority, it effectively forced them into a judicial capacity, determin-

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ing when a man had been wrongly removed from a vessel, and granting the power to assess the relevant fi ne. It also required consuls to operate what was, in essence, the fi rst federal social welfare program, using collected fi nes to support and transport destitute seafarers. Consuls found themselves acting as advocates for and aids to Americans abroad, and especially those in the maritime industry. The consul became a symbol of a benevolent nation, which sought to protect Americans against foreign and domestic mistreatment. Significantly, the process of turning to the consul, an officer of the federal government, for aid strengthened the bond between seamen and the nation and made more important their status as citizens. The 1803 act also turned consuls into arbiters of who could claim the rights of an American citizen The consul had considerable latitude in determining whether or not an applicant for relief was indeed an “American seaman,” and in deciding if the man’s plight warranted relief.43 However, according to the interpretation of both consuls and the federal courts, the citizenship that mattered most was that of the vessel. If the Stars and Stripes flew from the stern of a vessel, all those on board would be considered “American seamen” for the duration of their employment, and had the right to seek protection and redress from the American consul. In fact, a foreign citizen or subject remained an “American seaman” until the occurrence of some “overt act” on his part, such as shipping in a foreign vessel or “abandoning the calling of a seaman.”44 Despite its intent to protect seamen against abandonment in foreign ports, the 1803 act instead incentivized brutality. Some captains simply terrorized men into deserting to avoid paying wages, leaving the men destitute and reliant on the consuls. When they didn’t bully or brutalize the men into desertion, some unscrupulous captains simply sailed away without the men they didn’t want, claiming the men had deserted.45 Counsels were further thwarted in their application of the act by the confused and incomplete way many masters kept the ship’s articles. Although the act mandated that captains maintain clear records and post a bond of four hundred dollars to ensure they would not leave men overseas, “great carelessness had been usual in making up the ships’ lists.”46 Vague descriptions and oft-revised articles meant consuls often could not make out who was supposed to be on the ships or whether or not articles had been violated. Regular tars also exploited the law and the consuls who executed it. Just as some seafarers sought pragmatic opportunity through the courts with unscrupulous lawsuits, some men saw consuls as a potential source of cash or as a way to punish captains they disliked with a damaging com-

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plaint. Hawthorne noted how easy it was for consuls to become cynical about their duties from dealing with the steady stream of petitioners, “beggars, cheats, simpletons, unfortunates, so mixed up that it is impossible to distinguish one from another, and so, in self-defense, the Consul distrusts all.”47 Although incoherent oversight from Washington and a confusing array of needy petitioners at their doorstep left some consuls cynical, dismayed, or overwhelmed, out of necessity US consuls developed their office into an important outpost of the federal government in a period of national defi nition. If few back in the United States understood the significance, seafarers and consuls did. For Americans abroad, the consul became the embodiment of the United States in a foreign port. For foreign powers and businessmen, the consul represented the most direct, day-to-day interaction with the young American Republic. According to C. Edwards Lester, who served as consul at Genoa and Rome, a competent consul, “unaided by an Ambassador or commercial treaty can do more for his country and its interests, than ambassadors and treaties can ever effect alone. . . . A good Consul, on the spot is worth to the commerce of a country, more than all the treaties in the world.”48 Kennedy agrees, explaining, “For the fi rst 130 years of the United States as an independent nation, the principal business of the Department of State overseas was in the hands of American consuls, not American diplomats.”49 In addition to performing “an informal kind of proto-diplomacy,”50 consuls acted as the personal face of the nation for both Americans abroad and foreign nations. This group of untrained political appointees, in essence, became the embodiment of the nation, and, like the federal courts, an important site of national self-defi nition. The Treaty of Ghent in 1815 marked the end of the impressment issue, but the beginning of a new era of importance for consuls. As American trade expanded after the War of 1812, the growing number of Americans and American vessels traveling the world prompted a need for officials to handle all sorts of issues. In 1800, consuls had been appointed to 62 cities worldwide.51 By 1826, the United States had 110.52 The consular service exploded in size after the election of Andrew Jackson in 1828. With the arrival of the “spoils system,” consular posts became valuable—and potentially lucrative—rewards for loyal party apparatchiks. Kennedy notes that “patronage and profit” plagued the consular system from the beginning, but the politicization of appointments expanded dramatically during the Jacksonian era.53 By the end of Jackson’s fi rst term in 1833, another 42 new consulates had been created, and by 1860, the number of consular offices had ballooned to 282.54

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The consular service may not have been as politicized as the appointment of some domestic offices (the postal service in particular), but consulships—especially those thought to be the most lucrative, like Liverpool, Le Havre, and Havana—became prized political plums.55 Hawthorne certainly fit the model of a politically appointed consul, having written a campaign biography of his classmate at Bowdoin College, President Franklin Pierce. Still, even if the situation was not as bad as with some other federal appointments, the political appointees who fi lled the consular ranks in the 1830s and 1840s were often not up to the daunting task before them. Most consuls received little or no practical training before they took up their post, and they entered into the complex and conflicting world of consular authority unprepared. At the very least, argued Lester, the consul “should fully understand the structure, the history, the spirit, and the policy of the nation he represents.” All too often, found Lester, this was not the case.56 If basic knowledge was often lacking, the kind of specific knowledge a thorough counsel would need could be found at very few posts indeed. Despite the importance of consular positions for the nation and its trade, many men accepted such posts for less than noble reasons. For some, the position offered prestige and an opportunity for travel. In 1826, James Fenimore Cooper served as consul in Lyon (after turning down a less desirable post in Sweden). Cooper, by most accounts, saw the position solely as an honor. He used his post as a social lubricant and an opportunity to take his family on the grand tour.57 Cooper was not alone in simply ignoring his post. Hawthorne commented that his predecessor had been appallingly lax, describing “an American shipmaster, who complained that he had never, in his heretofore voyages, been able to get sight of the American Consul.”58 The problem was bad enough that, by 1853, the State Department had to issue explicit instructions that long absences would warrant removal from office.59 Men of arts and letters often sought consular posts as both a symbol of their accomplishments and a source of cash between projects.60 For men like Cooper and Hawthorne, consular appointments came to be seen as the American equivalent to the various honorary knighthoods and titles doled out to artists by European monarchs. Hawthorne and Cooper were only two of a list of authors and artists thus rewarded.61 Of course, literary skill was no guarantee of diligence or competence as consul. Although Hawthorne took to his post earnestly, Cooper saw little reason to accept the work that went with the honor.62 Other consuls sought commercial advantage by taking a post in a city

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where they already conducted trade. According to Edward Livingston, secretary of state for Andrew Jackson, in a report from 1833, “In many, perhaps the greatest number of cases, the office is sought . . . chiefly, for the advantages and the influence it will give to extend the commercial affairs of the officer.”63 Others saw the post as a stepping-stone to higher office. As consul, Nicholas Trist seems to have been far more interested in furthering his career back in Washington than in fulfilling the duties of his position.64 Even when good men were appointed, it did not guarantee consistent consular coverage. In particular, turnover proved a major problem. Speaking of his own post at Genoa, Lester comments, “Is it any wonder that, up to 1841, during the short period of four years, the Consulate passed through five different hands—three of whom were foreigners; nor that after I left the office it went through three hands in twelve months?”65 Such brief tenure in the post of consul meant that, in many ports, when there was a consul, he was almost certain to be new and unfamiliar with his office. If consuls were often inattentive, underprepared, or even incompetent, there was almost no way to remove bad men from the position. The system developed with “no means of ascertaining the condition of the great majority of offices except through statements of the officers themselves or of American travelers who had occasion to visit them.”66 Even in the late twentieth century, “no assurance exists, other than the integrity and ability of the consul” that the consul will discharge his duty to seafarers (or officers) legally or appropriately.67 Hawthorne received his post in Liverpool like many of his era, as a political favor from a powerful friend, although his previous job at Boston’s Custom House prepared him better than many. Hawthorne was also more conscientious, and focused his attention particularly on issues of shipboard cruelty.68 Back at the customhouse, his complaints about the “dull, spineless men” who worked with him and his attention to detail made him unpopular with both coworkers and clients. According to one account, his manner sparked rage, and one frustrated captain “attempted to throttle” Hawthorne for his meticulous attention to detail.69 He was no different as consul, penning over a hundred dispatches back to the State Department, well more than consuls in even comparably busy ports.70 Hawthorne was appalled in particular by the conditions he saw under which American seamen served. “His dispatches, sometimes lengthy and empathetic, indicate his personal embroilment in problems which obtruded themselves onto his attention. Notable was that of the condition of seamen on board American vessels calling at Liverpool. He returned to this matter many

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times, making personal appeals at the highest levels in Washington and elsewhere and continued to do so even after his retirement, not without success.”71 Of course, diligence in communicating with Washington was only a part of the consul’s job. Nicholas Trist, while in the plumb assignment of consul in Havana, penned “incredibly long letters and reports to Washington—reports so full of trivia one wonders if the recipients ever fi nished reading them,” but nevertheless found himself ousted in 1839 after being accused of inattention to the needs of Americans in that port.72 Many also believed that the post could be a path to wealth. Although the fee-based pay enticed some men to accept consular positions with visions of wealth, few did as well as they would have hoped. “Some Consuls go abroad with exaggerated ideas of the emoluments of the office,” noted Lester, only to leave quickly when their dreams of riches and foreign travel were punctured by tedious work and limited reward.73 In some cases, rather than becoming rich, consuls found that the position led to fi nancial ruin. Sylvanus Bourne served as consul for twenty-six years, the majority of that time in Amsterdam, before dying penniless in 1817, his last letter to Congress still hopeful that it would pass legislation to improve consuls’ fi nancial situation.74 Although they could charge fees for the basic tasks of their job, like certifying crew lists and ships’ papers and taking depositions, many if not most honest consuls found that their fees were at best barely sufficient. The cost of caring for distressed seamen, however, often easily outstripped the fees consuls brought in. By the time Lester complained of the fi nancial difficulties faced by consuls, Congress had increased the reimbursable per diem for seamen in care of the consul by eight cents, but consuls still struggled. Lester explained, “You are authorized by law to expend only twenty cents per day . . . for distressed seamen. A seaman is discharged from a vessel sick; he goes to the hospital— is destitute and naked—he must have clothes and food and lodging . . . and yet twenty cents per diem is the allowance for this. And the government has been known to protest Consul’s drafts even for twenty cents per diem.”75 The fee system was the main structural problem in the consular service according to reformers, who believed it spawned inefficiency and corruption. Because, in many posts, the fees made for a paltry income, the insufficient pay “made it impossible for the consul to maintain his due social standing and influence in the community.”76 Worse, the fee system prompted desperate consuls to go beyond the bounds of their authority in an attempt to extort inflated fees from those they were supposed to aid. In a review of the service from 1830, Secretary of State Martin Van Buren reported that in lesser ports insufficient fees prompted greed and fraud as,

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on their own authority, consuls instituted “irregular and exorbitant fees” to make up their shortfall.77 Throughout the years leading up to the Civil War (and beyond), seamen and masters alike complained of incompetent, ineffectual, or fee-hungry consuls more concerned with their own wealth or commercial interests. “I have made several applications to Mr. Lyman, Consul & Agent in London, but can get no redress. Mr. Lyman has no influence in London or if he has won’t use his authority for protecting his fellow citizens.”78 For their part, consuls often did lack the knowledge and influence to fulfi ll their duties. James Maury, one of the more organized early consuls, lacked the legal knowledge to know how to advise Americans in his port. In 1808, he wrote to the US ambassador at London from his post in Liverpool, asking about the legal particularities of an American charged in British courts: “As the time now approaches for the trial of Mr. Carter, I beg the favor of you to inform me whether (being a foreigner) he is not enabled by the laws of this country to a jury consisting one half of foreigners, & if so, whether you would advise his availing of the privilege.”79 In 1861, George True, consul for Funchal, complained that he lacked the basic materials to understand his authority. He wrote the minister at Lisbon, concerned that “unfortunately there is no copy of the treaty between Portugal and the United States at this consulate. I see by a reference to it in the ‘instructions’ that judicial powers are conferred upon our consuls by it—to what extent I am not advised.”80 Similarly, J. Howard March, consul at Madeira, complained of confusion about how to apply the rules for discharging ill seamen.81 Legal scholar Charles B. Harris notes that, as late as 1976, “no statute contains a clear defi nition of an American seaman for purposes of consular protection, advice and relief.”82 Precisely whom a consul could—and could not—protect or correct remained confusing for all parties. Whatever the legal niceties, consuls often had to act decisively, and beyond the vague parameters of their explicit duties. By some measures, consuls wielded considerable authority. “The consul’s authority to deal with disputes involving the internal order of the vessel . . . supersedes even that of the ship’s master,”83 explains Harris. However, precisely what that power was, or how it might be wielded, was a complicated question. This confusion proved frustrating for consuls, who never felt secure in their authority. “The duties, the rights, the powers, and the responsibilities of our Consuls are not fully or clearly defi ned,” complained Lester, who noted that, although each consul received a small pamphlet outlining his duties, “no Consul can manage much light from those meager instructions

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on any point of doubt or difficulty.”84 If the lack of consistent reporting made early federal maritime jurisprudence confusing, the situation was far worse in the hands of consuls. For Hawthorne, the vague, expansive character of his office prompted a more existential frustration, and he felt the pressure of representing the nation for all Americans in Liverpool as both a responsibility and a strangely depersonalizing experience. In his words, “It impressed me with an odd idea [of] having somehow lost the property of my own person when I occasionally heard one of them speaking of me as ‘my Consul’!”85 Disconcertingly, the consul became not as much an individual as an impersonal embodiment of the nation, more office than man. Hawthorne also bemoaned his lack of authority and influence to confront the very real tasks before him. Particularly in reflecting on the unusually grim case of Daniel Smith, a sailor who died in Liverpool in 1855 after a brutal beating at the hands of his captain, Hawthorne noted the injustice of his inability to ensure that the captain would be punished. “This was hardly a fate, certainly, and a strange thing to happen in the United States at this day,—that a free citizen should be absolutely kidnapped, carried to a foreign country, treated with savage cruelty, and left to die on his arrival. Yet all this had unquestionably been done and will probably go unpunished.”86 Smith’s case may have been unusually egregious—shanghaied and murdered by the captain—but the sense of powerlessness, confusion, and frustration Hawthorne expressed was doubtless shared by other conscientious consuls. In theory, the consuls wielded limited power, and their actions were subject to review by the courts later, but as a practical matter, consuls were required to act in capacities well beyond their official authorities. According to Lester, the consul “has no judicial power or authority. . . . His decisions are binding on no one: The Alpha and Omega of his office and dignity is that of a counselor, who can give advice but never exercise authority.”87 In practice, however, consuls regularly found themselves forced into exercising broad authority over the ships and men who came to their harbors. They had to remove dangerous men from vessels, interdict violent officers, bar unseaworthy ships from sailing, all the while unsure of their authority to do so. When asked for an opinion on the consul’s authority, one jurist gave the thoroughly unspecific answer that he should “exercise, with discretion, just as much authority as is necessary to secure justice between man and man.”88 This vagueness made consuls’ application of their authority uneven, but it is also part of why, historically speaking, the

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consuls are so interesting. Their relative autonomy and growing importance made consulship a critical site of national defi nition. Consuls saw their responsibility grow after 1835. Not only was USflagged commerce expanding rapidly to points all over the globe, but the new legal regulations for seafarers of every rank meant more work for consuls. As increasingly litigious mariners swelled the federal courts’ dockets back at home, the law made consuls important participants in the legal struggle that started to underlie the struggles over authority on the decks of American ships. In turn, as the consul became an important arbiter in this struggle, the desirability of limiting men’s access to the consul increased. Captains had to call on the consul; the regulations in the 1803 law required masters and consuls to complete paperwork every docking. Involving regular seamen with the consul, on the other hand, could mean costly delays and potentially expensive interference. Particularly as men became better versed in the legal regulations of their employment, seeking redress through the consul proved an attractive option for seafarers, and captains did their best to limit that possibility. Because the consul wielded vague but broad authority, and because he, unlike jurists on the federal bench, was in no way required (or, often, even able) to keep abreast of the latest practices and developments in the regulations, allowing the men to speak to the consul was always an unpredictable undertaking. Since passage of the 1803 act, some observers decried its shortcomings and the inefficiencies of the consular service in general. By the 1830s, a chorus of consuls, captains, merchants, and reformers called for an overhaul to both the structure and the duties of consuls. Congress fi nally responded in 1840 with a law designed to solve the problems consuls encountered after the 1803 and 1835 acts that had swamped, bewildered, and impoverished them. Now consuls could dismiss a seaman with wages after being petitioned by either a seafarer or a captain. Consuls had explicit authority to assess whether or not a master was in breach of the ship’s articles and intervene on behalf of the seaman, including forcing the master to pay out three months’ wages.89 At last, consuls were able to “discharge any mariner on such terms as will, in [their] judgment, save the United States from the liability to support such mariner” with the assent of the master.90 The goals became minimization of the duress on seafarers, and of the cost on consuls and the nation’s treasure. The act also greatly increased penalties for captains who abused men or tried to get rid of expensive or undesirable men without going through the consul. If masters violated the requirements of the act, they were “liable to each and every individual injured

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thereby . . . and, in addition thereto, [were] liable to pay a fi ne of one hundred dollars to be recovered by any person suing therefore.”91 The act reiterated the consul’s power to assess the seaworthiness of vessels and the adequacy of provisions, and to discharge seamen with three months’ wages if the vessel was found wanting.92 It also attempted to solve the problem of slipshod articles. To avoid doctoring and deceit, ship’s articles submitted to the consul had to be “a fair copy, in one uniform handwriting without erasures or interlineation.” Henceforth, any alterations “shall be deemed fraudulent” unless “satisfactorily explained” to the consul.93 Most important, however, the new legislation strengthened seafarers’ access to consuls. In the words of Harris, the 1840 act “conferred upon American consuls ultimate control over American seamen within their consular districts.”94 Although it had long been a practice for seamen to petition consuls for relief, the 1840 act made that right explicit and inviolable.95 In essence, the act inserted the consul far more aggressively into the workings of the ship. He alone determined when a man could be discharged, and on what terms. He assessed the seaworthiness of the vessel. He could accept or reject the ship’s articles and hold the ship at port until satisfied. The 1840 act may not have changed the way in which the consular service was organized, but the provision guaranteeing seamen’s right to petition the consul became a crucial site in the struggle over authority on the seas. Now captains not only had to contend with the post facto interference of the courts upon their return home, but the men could also ask the consul in every port to examine and second-guess the actions of the officers. Judge Peleg Sprague saw the right to petition the consul as so important that “it may be called the habeas corpus of the seaman,” and insisted that “the court will carefully and vigorously defend its inviolability.”96 If the right to seek the aid of consuls became an important part of seamen’s arsenal in defending themselves against officers’ power, it also strengthened their connection to the federal government. Just as the 1835 Crimes Act placed the federal court system as arbiter between crew members and officers, the 1840 act extended the reach of the federal government in the form of its consuls into interactions at sea. This “habeas corpus” for seafarers turned the consuls into the most important advocates of seamen’s rights. As Harris notes, from its earliest days, “the United States has always regarded the consul as a protector and an advisor of its seamen,”97 but the 1840 act gave new strength to the claim. By the late 1840s, the courts began to assert this right aggressively, noting that, even when a man’s going ashore to see the consul was impractical or dan-

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gerous, it was the master’s responsibility to request that the consul come to the ship instead.98 In practical terms, the provision that guaranteed access to the consul became an important protection for seafarers, and ensured greater compliance by officers with the other laws meant to protect seamen. But it meant even more in symbolic terms. The federal government interposed itself in the form of consuls into the daily workings of the ship. Seamen understood that these representatives of the federal government wielded authority superseding that of the master. Like the courts, consuls linked mariners to the nation. The consular system fi nally underwent a comprehensive reform in 1856, after years of complaints from those who had been dealing with its shortcomings fi rsthand. Congress initially enacted a massive reform in March 1855, but only six weeks after it was to come into effect, that act was superseded by a more comprehensive bill the following August.99 In practical terms, the 1856 act did little to change the duties of consuls. Instead, it reorganized their pay, eliminating the fee-based pay in important posts and instituting salaries for most consuls. Consulates were divided into two groups. The more important posts were identified as “Schedule B” positions; those consuls were granted salaries ranging from as high as $7,500 per year (at Liverpool) down to $1,000 (Prince Edward Island, in British Canada, and Stuttgart, Württemberg). Consuls in less important cities made up “Schedule C,” with annual salaries ranging from $500 to $1,000.100 Schedule B consuls were expected to live on their salaries, and were banned from operating as merchants on their own account, so as not to be tempted to put their own pecuniary interests above those of the nation. Schedule C consuls, on the other hand, were permitted to trade and augment their salaries with fees.101 More than anything, the 1856 act represented the federal government’s fi nally asserting control over the largely feral development of consular practice. Whereas the 1792 act that created the consular service runs a scant nine sections, the 1856 reorganization encompasses thirteen pages in Statues at Large, and is subdivided into thirty-four sections. Unlike the acts from 1803 and 1840, which remained largely intact,102 the focus of this reorganization was not on consular duties but on tightening federal oversight across the system. For the fi rst time, an attempt was made to give defi nition to the various titles under which men serving consular functions operated. The confusing collection of consul generals, consuls, and commercial agents were all identified as “consular agents” in charge of their post, as opposed to deputy consuls, vice-consuls, and vice commer-

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cial agents who served under the responsible consular agents.103 Although this seems at fi rst glance to be basic housekeeping, the 1856 act marked a new seriousness on the part of the national government to shape the policy of its officials abroad rather than the reverse. Whereas in early days, the Department of State pleaded with consuls to report to Washington at all, after 1856, the federal government not only dictated how consuls were to keep their records, but it began issuing standard logbooks to ensure record keeping was uniform across posts. Even stationery would now be shipped from Washington for all official uses.104 The act made explicit that consuls were presidential appointees, and that their operations were controlled by the executive branch.105 It also pointed the way toward a more rational and professional service in the future by creating the position of “consular pupil” in an effort to develop a corps of trained, professional men who could be slotted into consular posts in the future, already experienced from their apprenticeship under a consul.106 Perhaps most important, the 1856 act established new penalties for wayward and corrupt consuls. Six separate sections of the act explained the various fi nancial and criminal penalties for perjury, dereliction of duty, fraud, or incompetence on the part of consular officers.107 The explicit delineation of punishment speaks both to the checkered history of consular practice and to a new rigor the federal government sought to impose on overseas operations. Some of the most important duties of consuls—assessing citizenship and determining who could be relieved of duty on a vessel—remained in the hands of consuls, but with more explicit instructions. Although consuls could still make judgments about the nationality of paperless Americans, the law explicitly warned that “knowingly and willfully” granting a passport to someone ineligible would open the consular official up to prosecution.108 The act also reasserted consuls’ responsibility for seafarers as described under earlier statutes, and granted consuls the authority to withhold the necessary papers for a vessel to sail until all outstanding issues and fees had been taken care of.109 The change in pay structure radically altered the position of consuls, to the chagrin of holders of more lucrative posts. Hawthorne worried about the impact of the new system, but the compensation in Liverpool remained fairly consistent with what it had been under the old regime.110 By some accounts, the new salary structure was too low to fulfi ll its goal of discouraging corruption, but whether successful in its aims or not, it represented a major attempt to systematize the consular service.111 As dramatic a change as the 1856 act was, it did little to alter the basic

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tasks of consuls. Their day-to-day responsibilities were perhaps clarified but remained largely unchanged. From the earliest days of the service forward, consuls toiled in the small work of nation building. In the aggregate, they may have served a grand purpose in shaping and ordering American identity and commerce abroad, but most of the work was dull and repetitive. The marine protests and other paperwork of the consulate may have been mundane, but even amid the drudgery, some consuls understood the larger symbolic nature of their position. Because they were often the lone representatives of the nation, consuls were not only powerful protectors of seamen in unfriendly ports, they became the embodiment of the young nation—and specifically of its federal government—for Americans and foreigners alike. At Madeira, a series of consuls and vice-consuls pestered the State Department for a new flag to replace the one damaged by the sun in hopes of presenting a symbol appropriate for the nation. Once the flag was secured, they immediately set about requesting a new consular seal to use on documents.112 The flag also proved a problematic issue at Canton, where an oversize Old Glory flying above the consulate offended Chinese authorities.113 In Havana, the captains flew the American flag inverted to protest the imprisonment of one of their number in a Spanish jail by order of the US consul. The consul, Nicholas Trist, decried this protest as unpatriotic “flag foolery.”114 Thomas N. Carr arrived in Tangier to take up the post of consul only to fi nd that his predecessor, James R. Lieb, had gone insane from the stress of his position. Carr encountered Lieb in the crumbling consular building, “Wrapped up in the American flag, he would spend whole nights upon the terrace, making signals, by running lanterns up and down the flag staff, to the fleet which he had ordered from the Mediterranean for the purpose of battering the town; at the same time uttering the most discordant sounds, and alarming the inhabitants.”115 Most consuls might not have presented so tragic or symbolic an image as poor Lieb driven mad and wrapped in the nation’s flag, but the consul himself and the consulate were powerful symbolic manifestations of the nation. In less dramatic fashion, Hawthorne understood his office as a beacon, a welcoming symbol of home. Hawthorne described the dubious offices he inherited from his predecessor as decorated in American kitsch, a pastiche portrait of national identity: On the walls of the room hung a large map of the United States (as they were, twenty years ago . . . ). Further adornments were some rude engravings of our naval victories in the War of 1812, together with the

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Tennessee State House, and a Hudson River steamer, and a colored, life-size lithograph of General Taylor, with an honest hideousness of aspect, occupying the place of honor above the mantel-piece. On the top of a bookcase stood a fierce and terrible bust of General Jackson, pilloried in a military collar which rose above his ears, and frowning forth immitigably at any Englishman who might happen to cross the threshold.116

Although he found the décor both outdated and overwrought, Hawthorne elected to keep things as he found them. Rather cheekily, he suggested that the style “fairly represent[ed] the American taste in the fi ne arts,” and that he kept it intact because the overall effect “reminded me so delightfully of an old-fashioned American barber’s shop.”117 More seriously, however, Hawthorne saw something important in the patchwork of American symbols he inherited. “My patriotism,” Hawthorne explained, “forbade me to take down either the bust or the pictures,” because he saw the consulate as “a little patch of our nationality imbedded into the soil and institutions of England.”118 His whimsical description of his office betrayed a more earnest sense of its mission, and of his mission as consul. He was supposed to embody the nation, to present a refuge for Americans abroad, be they distressed seamen, merchants with business to conduct, or travelers seeking the comfort of the familiar trappings of home. Tasteless as the decorations may have been, Hawthorne’s office was, as he said, a “little patch of our nation” on foreign soil, and he as its occupant needed to fulfi ll the symbolic as well as prosaic functions of his position. The stylistic mélange of Hawthorne’s office served as a perfect metaphor for both the consular service and American identity as a whole in the years of the early Republic. The aggregation of symbols—generals, battles, images of commerce, even the outdated map—portrayed a nation still defi ning itself symbolically and territorially. In this consular office thousands of miles from US shores, the nation struggled to defi ne itself through a haphazard set of symbols and personages. There, an authorturned-consul, whose writing sought to defi ne the nation through literature, met seafarers seeking to defi ne their place within American identity and law amid a collection of disjointed symbols of national pride. It was there on Brunswick Street in Liverpool that the defi ning of the nation took place. In the larger scheme of early federal history, the consular service developed as an afterthought, the incoherent product of a confused and stilldeveloping national government. Early consuls were appointed when US

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commerce to a port warranted it, or when a commercial treaty required it, and consuls often were simply Americans (or even foreigners) whose commercial interests could be enhanced by an official post. Nevertheless, consuls and their interactions with the Americans, especially seamen, who came before them became an important part of the national discourse of self-defi nition. Consuls, like the nation as a whole, were engaged in a dynamic process of defi ning the parameters of American rights and identity. Much like the men whose pleas and petitions they heard, US consuls struggled to understand and articulate their position within larger systems of governance and citizenship, themselves still being defi ned. As with the courts and with seafarers themselves, consuls became part of an important discourse that stretched to Americans around the globe. Not only in the issues before them, but in what they wore, how they outfitted their office, and how they responded to their expanding duties as guardians of Americans and American interests, consuls represented, as Lester explained, a “sacred” trust, and an important node in the discursive network that defi ned American identity for Americans themselves and the wider world.

Ch a pter Eigh t

“The Very Laws That Preserved Their Liberty”: Seamen, Citizenship, and National Identity

In the sight of their Creator, and in sight of the law, they are all equal, though each one is bound to do his duty, like a man, in the station where he has placed himself by his own consent. —William Sullivan, Sea Life1 I did not care so much for getting anything out of him, as I did for justice. —Statement of Charles Burnham, Burnham v. Hussey 2

I

n 1853, the crew of the whaler Polynesian wrote to the American consul at Honolulu to complain of treatment at the hands of their officers and to request the consul’s assistance. In doing so, they took the opportunity to explain their understanding of their place in United States society: We wish you, sir to understand that seamen are not always the poor, degraded class of beings you may have supposed. We, as well as yourself, have lived in the United States, under “the banner of the free,” we know something of the laws and institutions of the country, and we also know that the humblest citizen has the privilege of calling to account the highest officer, for misconduct in office. 3

The crew of the Polynesian pointed out that they not only understood themselves to be Americans but also insisted that they receive the treatment due freeborn citizens of the United States. Seamen spent far more time in court than typical workers in antebellum America. More important, they spent it in federal court. Seamen understood their national identity the way many Americans did in the post174

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revolutionary United States, but they also experienced the nation with a primacy not available to most citizens of the new nation. The typical American worker before the Civil War did not sign a contract agreeing that he was “to be paid pursuant to . . . the laws of the Congress of the United States of America,” although seafarers did.4 Congress oversaw the details of their work, and most ship’s articles were printed with sections of the various federal codes covering seafarers’ conduct and rights. As a result, the ritual of the captain reading aloud the articles to the crew reinforced not only the officers’ authority but also the power of the law and the nation. Christopher Tomlins has argued that “by the early nineteenth century the rule of law assumed a vital role as the integral constituting element of the society,”5 and that the law helped to give meaning and coherence to “democracy, sovereignty, and citizenship” in the early United States.6 In no place was this so true as at sea. Nevertheless, seamen’s claim on “citizenship” was tenuous. If seamen saw themselves as free and able men who were prepared to participate in the life of the new nation, their claims were met with (at best) anxiety and (more frequently) hostility. Legal authorities regularly described seamen as something other than “regular” Americans, noting that they were a brutal, dangerous, and untrustworthy lot. Many insisted, as captains long had, that seafarers could not be expected to understand any principle more sophisticated than the sting of the lash.7 In particular, the limitations on their freedom made the assertion that “liberty” was a central tenet of the new nation both palpable and poignant for men at sea. Seamen had to defend their claim to liberty because it was under siege from all sides. Even as they were curtailed by increasing federal regulation, officers still held sweeping power over seamen. The law bound them to their ship until the end of the journey; once seamen entered into a contract, they could not opt out. Additionally, the courts, while asserting that seamen did have many of the rights of other Americans, often demeaned or discounted their testimony in court. As the background of seafaring men began to change in the 1840s and 1850s, the justifications for their legal limitations also shifted. As the lure of the West, poor pay, and strict discipline made the sea less attractive to young men from traditionally maritime cities like Salem, Massachusetts, their number was replaced by foreign seamen. Daniel Vickers argues that jurists and other observers used this increasingly foreign character to defend limitations on rights of seamen.8 The personal honor and masculine identity defended by seamen and officers expanded into an assertion of national pride during the fi rst half

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of the nineteenth century. As both groups became more facile with and invested in the rules and regulations of the new nation, they began to invoke “rights” and “citizenship” as ways to bolster their position at sea and ashore. Additionally, they began to see the legal system as the best means to do so. The insistence on being seen and treated as a man grew into an insistence on being treated as an American man. Seafarers echoed the themes of democratic participation central fi rst to Jeffersonian and later Jacksonian democracy—arguing that they had as much claim on the privileges and protections of an American identity as did the “sirs” and “misters” who ruled them on the water. The impressment crisis of the 1790s and early 1800s fi rst brought seafarers into direct and dramatic contact with the apparatuses of the nationstate, and the connection strengthened as the powers of the courts and consuls expanded during the fi rst half of the nineteenth century. Later, in the wake of additional legal support afforded them by new laws in 1835, 1840, and 1850, seamen began to rely more heavily upon the federal courts and American consuls as their champions against officers who abused or mistreated them. Thus, they continued to seek refuge in a distinctly national identity, but now the defense was against fellow Americans on American vessels rather than an external royal oppressor. Their identity as Americans, or even their presence on an American-flagged vessel, meant they could expect and demand certain basic levels of treatment. When officers stepped beyond their legal bounds, seamen turned to the nation, in the form of its courts and consuls, to assert their identity and defend their rights. Patriotism was not new among seafarers either amid the impressment crisis or as expressed through courts and consuls in the later decades of the antebellum era. Indeed, seafarers felt a strong connection to the nation from its beginning. Seamen participated actively in the demonstrations preceding the Revolution, and remained engaged political actors in the national period.9 In addition to the revolutionary excitement that swept through the new nation, maritime workers engaged the apparatuses of the federal government from the earliest days, due particularly to the impressment crisis of the 1790s. Impressment had been a despised reality of maritime life throughout the colonial period, but independence made it a crisis of national identity for American seafarers.10 When Britain’s demand for sailors in the Royal Navy outstripped supply, British captains became ever more broad in their interpretation of who constituted a British subject and was therefore eligible for conscription into the navy.11 Impressment forced both seafarers and the national government to ad-

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dress questions of citizenship and national identity in ways that would otherwise have remained largely unexplored. The crisis of self-proclaimed “Americans” pulled from US-flagged vessels and coerced into service under another flag struck at the heart of national pride, and established seafarers as important symbols of the nation. For seamen themselves, however, impressment was a highly personal matter and the fi rst time seamen came to view the nation—and the apparatuses of its government—as their protector and champion, even if that protection proved to be precarious. Early US consuls in Britain and France found themselves swamped with petitions from men seeking exodus from the Royal Navy. That these seafarers often addressed their letters directly to the president or secretary of state indicates the extent to which they saw a direct connection between themselves and the national government. They may have been, as one group of imprisoned seafarers put it, a “class of unfortunate citizens,” but they were citizens nonetheless, and petitioned their government for defense and redress.12 In doing so, they voiced their desires in the republican rhetoric of the revolutionary age, seeking a return to “the bosom of their country in a land of liberty a safe retreat from the oppression of their persecutors.”13 Some scholars suggest that the revolutionary bombast of American seamen was at times as pragmatic as it was heartfelt.14 This may be the case, but regardless of whether the rhetoric was earnest or cynical, seamen quickly learned to deploy it and rely upon the nation and its ideology as their protector. In some cases, seamen literally emblazoned themselves with the nation. Mathias McGill went so far as to inscribe permanently the mark of his national identity, tattooing “U.S. in [an] oval on his left wrist.”15 Even if the connection were only skin deep, American seafarers wore their citizenship, literally and figuratively, for the world to see. The Seamen’s Protection Certificates, a precursor to a passport and the fi rst document issued that explicitly identified Americans as “a citizen of the United States of America,” became a badge of national identity, and a protection, however weak, against the encroachments of British power.16 Moreover, because individual states (and even municipalities) were not barred from issuing their own passports until 1856 (despite frantic objections by the Department of State) Seamen’s Protections were the only consistent documentary proof of national citizenship in the antebellum period. Yet they hardly represented a clear, coherent approach to the question of national identity. Seamen’s Protections demonstrate the nation’s incomplete and inconsistent approach to citizenship in the early Republic. Constitutionally

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speaking, no clear defi nition of what constituted a US citizen existed. Yet impressment forced American seamen to travel with some indication of their nation of origin. Issued by the federal customs official in each port, each with its own form, Seamen’s Protections fi lled the gap between the undefi ned constitutional character of citizenship and the practical need to identify Americans abroad. Consuls could also issue protections or passports, and, although the applicant was supposed to “prove” citizenship, it was left entirely to the discretion of the individual consul what constituted proof.17 The realities of maritime trade prompted the federal government to defi ne itself (or permit itself to be defi ned) in ways it was unprepared to do. In the issuance of protections, customs clerks, nearly the bottom rung of the federal structure, became, in essence, the arbiters of national identity. Legislatively, the federal government intervened in the impressment crisis in 1796, creating a system to handle the flood of claims trickling back to the government.18 That system relied heavily on the work of the Department of State in Washington and the few US consuls serving abroad, the most important being those in Britain and France. Much of the apparatus of the Department of State was built to cope with the needs of Americans abroad. By 1810, the department had created a form letter to be sent to the friends and families of impressed men asking for help in proving the hapless tar’s citizenship. The document, signed by the secretary, James Monroe, requested “that you will furnish me with such evidence on the subject [as] you possess, or can obtain from others, in a form the most authentic.”19 The need for the Department of State to create a form letter, signed by the secretary himself, indicates the extent to which the question of citizenship for American seafarers became an unavoidable issue for the federal government. Seamen’s understanding of citizenship became bound to the ability of the United States to defend their freedom. The federal government, on the other hand, was forced, at least with respect to seamen, to confront the need for a defi nition of national citizenship, something that would not be contemplated at the federal level until Scott v. Sanford in 1857, and not settled until the ratification of the Fourteenth Amendment to the Constitution in 1868.20 Impressment also provided the template for later reliance on the federal government by seafarers. In the words of one group of Americans forced to serve on HMS Belona in 1807, “We are all protected with American protections but they will not look at them. . . . We hope that the laws of the United States will protect us.”21 The “protection” they sought was from

Figure 8. A Seaman’s Protection Certificate served to identify a seafarer as an American. As such, it was the only explicit evidence of national citizenship in the United States before the Civil War. Despite the fact that such protections were supposed to ensure the rights of American seafarers, prior to 1815, they were often ignored by British officers looking to impress men into the ranks of the Royal Navy. The impressment crisis not only impacted seafarers and their communities, but also forced the federal government to defi ne and defend the citizenship of seafarers in a meaningful way. Additionally, the national shame of impressment of American seafarers made them into cultural icons of American identity, even after the impressments abated.

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the papers issued on behalf of the federal government, and from the “laws of the U.S.” Reliance on the “laws of the U.S.” would continue to grow after 1815 as seamen came to rely on the federal government to protect them not only against foreign enemies but from officers on their own vessels. For their part, the courts found themselves adjudicating between old and new legal structures. As wards, seamen claimed the protection of the state much the same way servants in the seventeenth and eighteenth centuries appealed to their masters. As Americans, however, in a republic predicated on personal liberty, seamen claimed rights as well as (and, at times, in confl ict with) those protections.22 In some respects, seafaring labor presaged developments ashore, as the “idiosyncratic,” “heterogeneous relationship” of master and servant became rationalized during the fi rst half of the nineteenth century.23 While the ship’s articles, in common use in the colonial era and codified into law in the fi rst moments of the constitutional Republic, delineated and regulated labor at sea, the maritime setting remained distinct from the rising tide of legal scholars asserting “the existence of a generic law of master and servant.”24 Not only was the maritime instance unique in its legal origins and in its federal rather than state oversight, but the intense and dangerous situations frequent in shipboard discipline meant that maritime labor remained wedded to older, more personalized forms of labor control. Despite changes on land, officers and courts defended a “strict, hierarchical, personal and physical regime of authority” until at least 1850.25 A subtle shift took place during the fi rst half of the nineteenth century as both seamen and the courts moved from defending seamen by invoking protection to invoking freedom and rights instead. Although many jurists balked at asserting the same rights and freedoms for seamen as for terrene workers, their justifications for continuing to defend stricter controls over these “servants” by the “masters” of the vessels became longer and more tortured in their logic.26 The debates laid before consuls and articulated in courtrooms became the arguments bandied about between seamen and officers at sea, as both learned to interpret and rely upon the law to bolster their claims in future disputes. Through this discourse, men at sea developed an increasingly sophisticated view of their own place as laborers, as freemen, and as Americans. Roughly parallel to what are now called “jailhouse lawyers,” seamen developed a rich knowledge of the law as it related to them and to their employ, and increasingly used legal arguments—and threat of legal action—to undergird complaints to their officers. Likewise, officers invoked the law as the source and justification of their authority, beginning each

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voyage with a reading of the ship’s articles, which contained excerpts of acts of Congress dealing with seamen. Just as seamen’s travel facilitated the creation of communities across regions and the development of one of the early truly “national” discourses, the federal government, through its courts, sought to articulate a national policy to govern its ships and waters. The cases stemming from onboard altercations that found a venue in the federal courts raised several important legal issues. First, federal jurisdiction over maritime and admiralty cases marked an early assertion of federal power. During a period when the federal government seemed small and distant to most Americans, any use of federal authority set significant precedent. Moreover, legislators in the early federal period saw American shipping as a central element of the young nation’s future. Beginning with the tariff, one of the fi rst pieces of substantive legislation passed by the First Congress, the United States moved to support and expand its operation in the sea-lanes.27 International trade was one of the few responsibilities of the national government under the Articles of Confederation. From the ratification of the Constitution forward, it was clear that one of the important roles of the new federal government would be to organize and regulate American interests and citizens on the water. Congress fi rst dictated how ships were to be registered and governed in 1789 and laid out the basic terms of maritime labor, pay, and discipline the following year.28 Congress took pains to legislate clear rules for the registration, management, and operation of American ships, but its attempts to bring clarity to shipboard governance and discipline took more than a century to cohere. Federal courts had tremendous difficulty comprehending the slights, violence, and other incidents that took place on ships. The courts’ role was precarious. First, and probably most significant, the courts had to make sense of events that happened far from the watchful eye of civil society, frequently at a substantial temporal distance, and among men who were seen by most in society as (at best) “a species by himself”29 and (at worst) intractably “reckless.”30 Moreover, the courts were often further hampered by the limited availability of even the most essential witnesses, who often had shipped out again by the court date. Finally, as discussed in chapter 2, judges faced the daunting task of creating a coherent practice and application of the law without the luxury of a standardized reporting system to give them access to other judges’ decisions. If interpreting events at sea was difficult for the learned judges of the federal bench, it was all the more confusing a task for the political appointees who made up the majority of the United States’ consular service. Usually without any legal training,

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consuls had to make sense of a complex and ever-changing set of regulations, all the while remaining unclear about the specifics of their responsibilities and privileges. With respect to the question of “rights,” these cases presented thorny but important issues. Despite the seamen’s vociferous assertions of their own freedom, legally they occupied a more tenuous position. While engaged on a ship, seamen were technically wards of the state, neither wholly freemen nor wholly bondsmen. Their designation as wards served as justification for some of the unusual protections seamen enjoyed from their government, forming the core of a woefully inadequate but nevertheless unprecedented involvement of the government in their welfare. In contrast, the more coercive and draconian elements of maritime labor, including corporal punishment and the criminalization of quitting and desertion, also drew their justification from seamen’s status as wards. Whatever the republican rhetoric of seamen, whatever their claim, like those on the Polynesian, that they had rights to participate in the “land of the free” like any American, they were continually reminded that the sea was not a democracy. Significantly, “liberty” to a seaman meant shore leave—time spent off the ship. Justice Joseph Story expounded on the necessarily undemocratic character of sea life in a decision from 1846: However uneducated or inexperienced, seamen cannot but know that they and the master on the deck of the vessel are not acting together in the same capacity, and like equals or citizens, adopting or opposing measures, by each one’s taste, or by the popular vote, as at a town meeting; but acting together for a time, one with the powers, for the benefit of all, and the other without those powers, for the same benefit of all, and by the agreement of all. 31

The sea could not be, argued Story, a democratic environment without jeopardizing the safety and security of all who traveled the waters. 32 Instead, he took a contractual view, arguing that American seafarers willingly entered into a temporary forfeiture of their freedoms while they sailed. Thus, though seamen did have all the rights of any American, many of those rights were in abeyance for the duration of their duty to the ship. Seamen were not equal before the law, whatever the grand promises of the American Republic. Their testimony was discounted commensurate with the perceived excesses of their character. Officers frequently complained of treacherous seamen conspiring to bring specious charges of cruelty or of withholding wages after the fact, a kind of post hoc mutiny

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following the end of the journey. Nor were such complaints entirely unwarranted. Within the vast number of complaints sworn before the courts and consuls abroad were the claims of conniving men seeking to enrich themselves through lies. Whether such malfeasance occurred frequently or not, the courts remained sympathetic to officers’ pleas of conspiracy against them. Even Richard Henry Dana, the men’s self-proclaimed champion, noted that, in court, “there is always to be allowance made for false swearing and exaggeration by seamen, and for combinations among them against their officers; and it is to be remembered that the latter have often no one to testify on their side.”33 Despite portraying himself as (and naming his guidebook) The Seaman’s Friend, 34 Dana felt it important to warn that it was officers who faced disadvantages in the courtroom, and that the testimony of regular tars should be viewed with suspicion. Indeed, the juries who heard such cases often did seem to heed Dana’s warning. In a case from 1837, despite the testimony of several seamen that the officers had been brutal, the judge cautioned the jury that “seamen were very apt to swear loosely, and to swear together as a body or as a crew,” and the jury acquitted the officers “without leaving their seats or deliberating two minutes.”35 In 1816, John Williams’s coconspirators on the Plattsburg urged Williams’s participation in a mutiny to take vengeance on their unjust captain by asking if he was a man or not.36 As late as 1837, a seaman named Smith barred the captain from flogging a messmate by warning, “No man shall be flogged on board this ship while I can strike a blow.”37 By 1851, however, seamen relied more often on the law to support the assertion of their rights, as when seaman “Russell cursed the captain & said what he would do when he got to New York,” implying legal action. 38 Seamen defended both their legal and traditional rights, and they availed themselves increasingly of the courts and consuls as the way to assert their claims. Seafarers reflected the changing sense of democratic participation that swept the United States in the fi rst half of the nineteenth century. Seamen had been active participants in the mass demonstrations of the revolutionary era and remained a regular presence in the rallies and parades of Jacksonian America. Yet even though they seldom became involved directly as voters in the political races of the era, seamen built a strong and sophisticated connection to the nation through the federal courts. Whether as defendants or as prosecution witnesses, seamen and ships’ officers were involved in a majority of the criminal cases heard before 1861 in New York’s federal courts, and their petitions and complaints in civil courts choked the dockets. 39 Abroad, American consuls bemoaned the ex-

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pense in money and time spent dealing with complaints ranging from the trivial to the dire coming from seamen who petitioned them with increasing frequency and sophistication.40 Colonial Americans turned to the law frequently, in many places suing one another with abandon, and little had changed by the federal period. Nevertheless, most Americans had little contact with the federal government beyond the post office, and only a handful had any contact at all with the federal courts.41 To most Americans before the Civil War, dayto-day contact with government or the law was at the local or state level. Because the Constitution granted jurisdiction over the seas to the federal government, the regulation that existed for maritime labor was ostensibly entirely federal. Additionally, unlike most forms of land-based labor, where regulation was limited and labor law drew its origin in common law, the sea was a broadly—and increasingly—regulated environment.42 As a result, seafarers’ strongest connection to and contact with legal authority was at the federal level, making seafarers “Americans” as their primary legal identification. By contrast, most landlubbers in the United States subscribed to a regional, state, or local identity more often than to a broader and more abstract national identity. According to Circuit Judge C. M. Hough, “In its early years the work of the federal courts, could have attracted no public attention; its remoteness from the ordinary life of the average citizen is very marked.”43 Those involved in international trade, however, whether merchants, officers, or seamen, represent a substantial exception. Due to the federal jurisdiction over the seas, seamen and officers found themselves involved in the federal court system with a frequency frustrating for all parties. Indeed, excepting the odd mail theft, crime on federal land, or counterfeiting case, the federal courts in New York existed almost primarily to adjudicate cases at sea.44 Indeed, the courts’ interpretations and delineation of the extent and limits of seamen’s rights was the starting point for federal involvement with labor and labor law. As William Sullivan explained to seamen in his guidebook, on American ships, the federal government could both protect and punish seamen as necessary: “If the officers or crew of an American ship do any wrong on the high seas among themselves, it is not a matter in which any other nation can lawfully take part. It is a matter of which the laws of the United States only can take notice.”45 Paul Gilje argues that some American seafarers were at best ambivalent, pragmatic patriots, who relied on lofty assertions of liberty only when they saw them as useful to their more immediate needs and desires. To an extent, he’s precisely right: seamen’s fealty to the nation often waxed and

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waned for purely practical and self-interested reasons. At their most Machiavellian, seamen saw the law as simply a means to obtain cash from the ship via a civil suit or to punish a despised officer. Stories of successful suits against officers traveled fast along the waterfront, and federal courts’ efficiency contributed to their expanding use (and abuse) by seamen. District Judge Joseph Hopkinson of Pennsylvania complained in 1839 that “the speed and facilities of trial here, with the moderate costs attending it, offer a temptation to seamen, under bad advisors—generally their landlords—to try experiments in bringing suits on false and frivolous pretences.”46 Hopkins and other legal authorities decried the proliferation of dockside attorneys who profited off of the federal system by urging naïve tars into dubious civil cases against their officers. It is true that such “land sharks” often cared less about principle, or even the welfare of their seafarer clients, than they did about their own profit. But to dismiss as mere opportunism all seamen’s assertions of the law and nation as their champion misses the larger significance. Whatever its initial motives, each case, each petition before a consul in a foreign port, further bonded seamen to the nation and invested the apparatuses of the federal government in the defense and regulation of these workers. Whether opportunistic or not, seamen put their faith in the structures and rules of the nation. William Sullivan touted his guide to Sea Life by warning how vital an understanding of the law was to even the simplest of seafarers: There is no business among men, which is more exactly ordered by law, than that which is done in ships and vessels. But there are a great number of those who follow the seas, who know not what the law is, nor where to look for it. If the law were before them, it is not easily read and understood by all who ought to know it. The law, so far as necessary to be known for common purposes, can, and will be stated so plainly, as to enable any reader to understand it for himself.47

From the good offices of writers like Sullivan and Dana, and through the more direct experiences of seamen in court and before consuls, seafarers developed an increasingly sophisticated understanding of the law, at least as it related to themselves. This growing understanding gave them both a language with which to argue for their rights and a forum in which to make that argument. As seamen became increasingly knowledgeable about the legal system, the legal system in turn became more nuanced and complex in response to their claims, charges, and petitions. An incident from the decks of the

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Courier in 1842 illustrates the extent to which seamen began to understand the law and use it in their defense. When Addison Grindell, the mate, caught seaman John Gilbert returning to the ship, he grabbed him, saying, “You black son of a bitch, you go on shore without liberty,”48 and struck the returning man. Believing the blow to be improper because, first, it had not been authorized by the captain and, second, it had not been applied appropriately, Gilbert responded with a warning: “I then said to him, Mr. Grindell you have taken the law into your hands, and if there is any law in New York when I get there I will have satisfaction.”49 Grindell was less than pleased with Gilbert’s high-minded response. “Damn the law,” replied Grindell. “If I’ve got to pay I’ll pay for something.”50 He proceeded to beat Gilbert severely, including several brutal kicks to the groin, which led to twenty days of infi rmity. Although his fi rst attempt to invoke the law as his protector met with a painful result, Gilbert was savvy enough to save as evidence the shirt drenched with the blood he shed during the beating. He also made sure to implicate the captain, Michael Duggan, by making clear from whom the orders originated. He asked Duggan “if he allowed it. He replied that he allowed the mate to act [at] his own pleasure if a man gave him any insolence.”51 Officers also used the law as a shield. When charged with the murder of one of his crew during an 1848 voyage, Peter Johnson, captain of the Unicorn, engaged actively in his own defense, providing his attorney with a diagram in his own hand to show that the men who claimed to be witnesses had had an obstructed view of the alleged crime. Further, he provided an explanation of his actions in densely worded legal prose written in his own hand that must have warmed the heart of his counsel, Richard Henry Dana Jr. “I do not see any proof of this beating,” argued Johnson, “and if a man is to be convicted on such a case I should think that there ought to be a clear proof of it if any such thing had taken place on board the ship, everyman would have taken notice of it and all hands could have told a strate [sic] story.” He went on to insist that the crime as alleged was physically improbable: “Again is there any reason to believe that I could lift a man up by the hair of the height of 6 feet as stout in proportion, and in the presence of 6 more able men than myself without them interfering. I believe that all hands have said that they saw me beating this man, then let me ask who did steer the ship at that time or was the ship left to the mercy of the Ocean, there must certainly be a falsehood some where.”52 Regardless of whether Dana aided Johnson in crafting his statement, its words betrayed an understanding of the kind of dispassionate rationality central to the legal system. Johnson did not argue about his rights or privi-

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leges as captain, nor did he insist he needed to defend his honor. Instead, he argued his case in terms designed for the logical realm of the courtroom. The growing foreign-born population in the forecastles of American vessels caused anxieties for jurists and reformers, but it only heightened the importance of citizenship for those American-born seamen who remained. Just as American citizenship provided a crucial but often imperfect shield against impressment into the Royal Navy before 1815, in the later years of the antebellum period, seamen saw their status as Americans as an essential defense of their rights—a protection not against the excesses of the British Empire but against those of their own nation. Seamen had to be careful how and to whom they made assertions of citizenship, as the case of John Gilbert makes clear. Appeals to lofty ideals could enrage rather than soothe the officers. When Charles Burnham appealed to the consul at Manila about mistreatment at the hands of Captain Samuel B. Hussey, Hussey demanded, “‘Do you suppose you will ever get anything out of me?’ I told him, that I did not care so much for getting anything out of him, as I did for justice. He said ‘if I had known that before, I w’d have torn you to pieces, limb from limb;—God d’n you.’”53 Hussey’s rage may have stemmed from the fact that he was fighting against the historical tide in his confrontation with Burnham. By 1848, officers had long been complaining about the incursions that the courts and consuls had made into their authority. In only two more years, Congress would even remove the centerpiece of discipline at sea, the lash, from their hands. In that context, to hear so bold a claim for “justice” from a seaman invoking an outside federal authority must have made Captain Hussey feel that his authority was under siege. Burnham’s claim of equal protection was tantamount to a subversion of the bedrock of power, status, and security at sea. If Burnham could vet all of his master’s actions through the consul, then, in essence, with the aid of the federal government, Burnham was now master, and Hussey was subject to his subordinate’s sense of justice, so long as Burnham could persuade the consul of his case. Moreover, Burnham’s growing understanding of his rights and legal options was also likely enraging. Whereas earlier seamen and officers might have meted out “justice” themselves, through the good offices of a handy belaying pin or the lash, invoking the courts only after a struggle on the deck, Burnham sought out the consul fi rst. Significantly, Burnham turned to the nation rather than his fists or shipmates as the primary defender and advocate of justice. In addition to their intricate involvement with federal law, seamen understood their national identity because it stood in ready contrast to the

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national identity of their foreign shipmates. Not only did international travel bring seamen into contact with different nations, but the multinational and multiethnic character of crews on American ships threw the American identity of US seafarers into strong relief. For seamen, being an American became important precisely because it could be compared meaningfully to something else. Seamen contrasted their American identity with the identities of their foreign compatriots, usually favorably. Whether in terms of superstition (like Dana’s claim that his compatriots on the Pilgrim distrusted Finns because they could manipulate the weather)54 or a more sinister impetus for violence against members of a despised nation, seamen experienced their national identity with a primacy that those in less diverse environs could not. The national categories seamen used to identify themselves and one another conflicted and overlapped. In one case from an incident on a merchant vessel turned fi libustering privateer in 1820, the defendant, George Mitchell, described nine of his shipmates as “American”; five as “Englishmen”; three as “Irish”; one each as a “Carolinian,” a “Philadelphian,” and “a real Yankee”; and one simply as “a fellow who can talk all languages.”55 As Mitchell’s description shows, mariners had a great number of personas available to them, whether national, regional, or even narrower. Despite the fact that such labels were fluid and overlapping, they did matter enough, at least to Mitchell, to use them to categorize his shipmates. Most pragmatically, seamen defi ned their Americanness as something that should afford them better treatment—at least better than that received by their foreign shipmates. Paul Gilje has argued that seamen wrapped themselves in the mantle of their nation whenever they thought it would bolster their case in the public eye. “They adopted patriotic rhetoric,” suggests Gilje, “but they were concerned mainly with protecting their liberty.”56 Impressment victim Thomas Tibbs complained about his fellow seamen’s fickle loyalty for resisting “the very laws that preserved their liberty and keep them from disappearing,”57 in seeking to subvert Jefferson’s 1807 embargo of foreign trade.58 In some cases, litigious seamen seemed to see their attachment to the nation in remunerative rather than republican terms, as in the case of Cornelius Ravens, a seaman who angrily warned his officers in 1834, “When I get you to the United States I’ll make you pay for this every farthing you have got in the world.”59 Foreign seamen, like ship’s steward Charles Burnham, were acutely aware that they often were expected to be ignorant of the protections of American law, and therefore less likely to complain about harsh treatment. After being struck by Captain Samuel B. Hussey, Burnham warned him he

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was no ignorant tar from a foreign land: “I said, ‘Captain H. you think you can do with me, as you have a mind to because I am a foreigner.’”60 Although claims for participation in the nation by seamen often fell on suspicious ears, some did acknowledge the important role seamen played. Frederic Sawyer noted that, by 1840, seamen were beginning to be seen as an important part of the body politic, explaining, “The character and wants of seaman are now every day becoming more fully and better understood, and their rights are beginning to become a topic for frequent and serious remark.”61 Similarly, John Truair justified his call for moral uplift among seamen in nationalistic terms. “The moral improvement of seamen is important in a political point of light,” argued Truair. “It is a given principle tested not only by the history of all ages, but by universal fact, that moral and religious men make the best subjects in any government.”62 Both the importance and the fluidity of national identification can be seen in a story from Nicholas Isaacs’s memoir. Forcibly removed from an American craft to a British naval vessel in the fi rst years of the nineteenth century, Isaacs and a compatriot complained that the officer had no right to seize them: “‘I am an American Citizen,’ said my companion to the British officer who ordered him in the boat. ‘I don’t care for that,’ replied the officer, and then he added authoritatively, ‘get into the boat.’”63 When their bold assertion of national identity failed to impress the new master, however, Isaacs took a different approach, producing not only papers asserting his American citizenship but also papers identifying him as a subject of the Danish crown—to no avail.64 That Isaacs could demand the rights of an American and then claim the privileges of a Dane a moment later says much about the way national identity was constructed on the water. Isaacs and his shipmate claimed their American identity with passion, but the Norwegian-born Isaacs was pragmatic enough to change his appeal (and his nationality) when he saw that the British officer was unimpressed by his American protection. Similarly, Jon Williams, a seaman from upstate New York who had spent much of his childhood in Quebec, adopted the French persona of “Joseph Antoine” to dodge the press-gangs. Despite this ruse, Williams twice found himself impressed into the British navy.65 Although seamen like Isaacs and Williams often took a pragmatic view of citizenship and were willing to claim whatever identity seemed most promising at the time, many American seamen felt strongly about their status as Americans. Indeed, despite his willingness to become Danish the moment it proved convenient, Isaacs described a strong sense of himself as an American. He viewed his impressment into the British navy

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not merely as a tragic personal turn of events but as a national shame. After making his escape, Isaacs explained, “What a disgrace it is to the proud lion-flag of England, that it is defended by so many involuntary seamen!”66 He also noted that, after the War of 1812 effectively settled the impressment issue, “England has learned to respect our flag, and the expression ‘I am an American Citizen,’ will henceforth be as effectual to shade her sons as that of ‘I am a Roman Citizen,’ was formerly.”67 Receiving their “rights” as Americans became a central theme in the petitions and complaints seamen brought to the courts and consuls. They regularly compared themselves to slaves. Richard Henry Dana recalled a shipmate objecting to a flogging by saying “I’m no negro slave, sir.”68 Melville, too, deployed this imagery when his semiautobiographical Redburn bemoaned his life at sea: “Miserable dog’s life is this of the sea! Commanded like a slave, and set to work like an ass! Vulgar and brutal men lording it over me, as if I were an African in Alabama.”69 Perhaps nowhere was this comparison as acute as on a slave ship, as Emma Christopher notes in her study of sailors on British slavers before 1807.70 Slavery was an easy and symbolically potent comparison for American seafarers and others, but in the American idiom, which privileged freedom above all virtues, comparing one’s plight to that of a slave had special resonance.71 For Americans on land as well as at sea, the metaphor of slavery served, much as it did for Americans of the revolutionary generation, as a powerful image to set limits on what a free man would stand. Because of the power of such metaphors, seamen of color had all the more reason to assert their national identity and citizenship, for their place—both at sea and in the nation—was far more tenuous than that of their white shipmates. Following Denmark Vesey’s slave uprising in 1822, southern states passed draconian laws restricting the movements of black seamen arriving in southern ports.72 Northern shipmasters complained that black seamen were increasingly being seized and imprisoned in southern ports, and sought redress from Congress.73 One hundred fi fty Bostonians engaged in merchant shipping presented a petition to Congress objecting to the imprisonment—at their expense—of black seamen traveling to southern ports. The petition argued that such treatment violated their rights as citizens. Congress, however, remained more concerned with the commercial rather than the civil rights of citizens.74 William Lloyd Garrison’s Liberator spoke out against the limitations placed upon black seafarers, claiming it “is a violation of citizenship, guaranteed by the second section of the fourth article of the Constitution of the United States.”75

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Ironically, their status as Americans proved to be a hindrance rather than a benefit to black seamen. Although pressure brought an end to the incarceration of foreign seamen of color in ports in the southern United States, in most states, black Americans still could not enjoy shore leave in the South. In 1852, Garrison pointed out the irony of citizens of the United States faring worse in their own nation than foreign subjects: It is remarkable that they who suggest this change propose a different rule for the colored seaman of France and Great Britain. The government of these countries has a means of enforcing the rights of their subjects in South Carolina. It is proper, therefore, that a black cook from a British vessel should go to shore unmolested. Massachusetts has no such resource. If, therefore, there is a colored man among the crew of a Massachusetts vessel, he is seized, and imprisoned until the vessel departs. The citizens of the Free States of the Union are not to be allowed the same liberties in the Slave States as the subjects of a European kingdom.76

Garrison echoed the feelings of many black seafarers, who came to fear southern ports of call. In addition to the risk of incarceration, black seamen also feared being sold into slavery by unscrupulous officers.77 Another antislavery advocate, William E. Channing, linked citizenship to manhood. Channing described an incident on board the Creole during which slaves being transported from Norfolk, Virginia, to New Orleans rose up, seized the ship, and sought the protection of British territory where slavery was illegal. In the case, he found opportunity to discuss the meaning of citizenship for all seafarers, and the critical differences between South and North: “After all, in these free states, a man is still a Man. He knows his rights, he respects himself, and acknowledges equal the claim of his brother.”78 Even in northern ports, black seamen found themselves at a disadvantage before the law. Federal judge Samuel Betts of New York was infamously lenient toward captains engaged in the slave trade. In 1849, Captain Smiley of the John E. Davidson threatened his black steward, George Beckett, by warning that “Becket[t] should never see New York again.”79 Whether the threat was murderous or implied that Beckett would be sold into slavery remained unclear, but it was Beckett who ended up paying the price for his violent altercation with Captain Smiley. He was convicted of assault with a dangerous weapon and served three years in prison.80 Nevertheless, the rights of black seamen were, on occasion, taken se-

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riously in northern courts. In an 1853 case from New York, several black seamen were charged with revolt for refusing to accept the addition of an unscheduled port of call in the American South en route to their destination in South America. New York’s Judge Betts agreed with the seamen that a stop not delineated in the articles—particularly one that could be seen as dangerous—could not be added without the crew’s consent.81 Race operated at sea differently than it did ashore. Always contested, contingent, and shifting categories, blackness and whiteness became simultaneously more malleable and more complex at sea. First, seafarers engaged a broader set of racial, ethnic, and national categories than most of their counterparts on land. Ships traveled the world, exposing crews to different societies, peoples, cultures, and attitudes. Additionally, because many crews were comprised of men from different lands and backgrounds, the ships themselves became a creative rearranging of racial categories. Particularly on whaleships, which made heavy use of Native American, Cape Verdean, and Polynesian tars, categories were extremely fluid. On the one hand, seafaring gave black Americans unprecedented mobility and status. No other antebellum work environment was as integrated as life at sea; by 1803, 18 percent of seamen were black. Although this level of opportunity diminished somewhat over time, the sea remained a uniquely diverse workplace.82 Moments of confl ict, however, call into question the extent to which white seamen fully embraced their black shipmates as peers and equals. For, though their time at sea may have been a radicalizing force for many, it was not an environment entirely disconnected from the mores and attitudes of life on land; few grew up at sea. Racial categories may have operated differently at sea, but they did not disappear. Even in cases of mutiny and piracy, when seamen broke beyond the bounds of conventional society, they often did not live up to the radical promise of the moment. After murdering the officers and seizing the ship in 1816, the crew of the Plattsburg began to disintegrate along racial lines. When they arrived in Norway, after dividing their take of over three thousand dollars apiece, the mutineers told their one black member that, though they had shed blood together at sea, they would not lodge together on land, for, as they explained to him, “We told Samberson to look out for another house; for it was not customary in America, for whites and blacks, to mess together.” Understandably, Samberson “went away, not very well pleased.”83 Samberson’s exclusion actually worked to his benefit, however, as the other three conspirators were quickly arrested by Norwegian authorities and returned to Boston for trial and eventual execution.84

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Particularly cruel officers felt it safer to single out black men in their service for brutality with less fear of either uprising or legal consequences. The cook, who was frequently a black man, was often a primary target for the venal passions of officers. Such was the case with poor John Brown, who signed on as cook and steward for a voyage to Portugal on the Macundy in 1837. According to the testimony of his shipmates, Captain Evan Farwell subjected Brown, who was perhaps not the skilled cook he had claimed to be when he signed the articles, to a string of punishments designed to be both brutal and humiliating. According to testimony, a few days into the journey, the diminutive Brown’s pant leg snagged on the deck, forcing him to trip and to break a set of dishes he had been carrying. Captain Farwell immediately stripped Brown of his duties, forced him to sleep in the leaky longboat with the hogs, cut off his trousers at the knee and his shirtsleeves at the shoulder, and shaved his head. Farwell beat Brown repeatedly, and Brown “begged the captain not to strike him anymore [saying] he would do his work as well as he was able.”85 Farwell did not relent, however, and when concerned crew members tried to aid the ailing Brown by spelling him at the pump and letting him rest in the forecastle, they were warned not to interfere. “The captain and mate came frequently forward and told us not to allow that black fellow down there,” explained Walter Landells, one of the crew.86 Brown was kept at work pumping or chopping wood all but three hours a night, and beaten more than daily until he grew ill and “asked to go down and die,” which he did four days later.87 The crew of the Macundy clearly felt empathy toward their poor cook, and sought to aid him through stealth, by the gift of a hat and some bedding. Nevertheless, they were unwilling to confront Captain Farwell directly about the abuse. Of course, it might well have been unwise to speak strongly to so hostile a man. Nevertheless, Farwell may have felt safer indulging his violent passions against a black seaman, who was increasingly not the equal of his white counterparts at sea or on land before the law. Black seafarers were aware of and rejected the limitations put upon their identity as “Americans” both on land and at sea. Six years before John Brown succumbed to the brutality of Evan Farwell and the harsh Atlantic conditions, Judge Betts asked another black seaman, Thomas J. Wansley, if he had anything to say in response to a sentence of death that had been pronounced for his participation in a mutiny on the Vineyard. Wansley used his opportunity to express his disillusionment with both the law and the nation that he believed had singled him out for abuse because of his skin color. Wansley charged the court as follows:

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He had always known a difference of color produced a difference of treatment, where white men were judges. They had taken blacks from their own country, and scattered them over their own settlements, and had treated them differently from those of their own country. There was an antipathy, as he knew, entertained by the whites against the colored persons. He had found it so himself, both as regarded the witnesses and the jurors in this case, and at the hands of the District Attorney.88

Nor was this Wansley’s first encounter with the hazards of being a black man in an increasingly white world. He had previously served in the US Navy on board the Delaware 74 and had been an object of sport and cruelty to his white shipmates. Judge Betts, however, swept away Wansley’s critique of American justice, arguing, “Whatever prejudice he might imagine existed growing out of distinctions of color, the utmost impartiality had been observed in this case.”89 At least in its official stance, the law did not make a distinction between black and white seafarers. With the exception of cases from the late eighteenth century, the official criminal complaints filed by the grand juries did not identify the color of the defendants. How the racial dynamics operated among the flesh-and-blood participants in court may well have been another matter, whatever the protestations of Judge Betts. Of course, the famous case of the Spanish vessel La Amistad made the rights of black men a major issue when it came before the Supreme Court in 1841. Although a cause célèbre in fashionable circles, the Amistad had no practical benefit for seamen of African origin. Although the ship had been built in the United States, the “mutiny” on the Spanish-flagged Amistad—an uprising among Africans being transshipped between ports within the Spanish Empire—did not bear on the lives, rights, or conditions of black Americans sailing before the mast. In the abstract, the Amistad case marked an important federal assertion of the humanity of black men. The court carefully avoided, however, any comment on the status of either free or enslaved black Americans. The human cargo of the Amistad had entered the United States’ waters despite the 1808 outlaw of the Atlantic slave trade, ruled the court, and so the owners of the ship had no claim to its “cargo.”90 Black seamen had, within their assertions of both rights and manhood, a heightened symbolic importance. The words of J. Roberts, a free black seaman on board the Lorena who asserted, “I am a black man, not a black dog,”91 had a resonance substantively different from the claims on man-

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hood and personal dignity of his white shipmates. Seafarers of all backgrounds defi ned themselves in terms of citizenship and as stakeholders in the American project, but both the tenor and reception of such claims were impacted by the racial categories that existed at sea and ashore. From the earliest days of the nation, seafarers understood themselves as an important part of the United States. Through their actions on the decks of American ships and, later, their testimony in court, they asserted that they were Americans, and demanded the rights that status should afford them. Seamen themselves argued that, as Americans, they had rights that should be protected, and they were active and informed participants in the body politic. In the revolutionary era, many seafarers played a role in protesting the Stamp Act and continued their activism through the

Figure 9. Seamen manifested their sense of themselves as Americans in various ways. Patriotic imagery was common among seafarers, whether in tattoos or in pieces like this scrimshaw work. In courts, in memoirs, in song, and in visual arts, seamen expressed their understanding of themselves as citizens of a revolutionary republic.

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Revolution.92 Indeed, Thomas Paine credited much of the political ideology in Common Sense to his time at sea.93 In many ways, American seamen were the quintessential Jacksonians.94 They demanded equal access to the rights and privileges of citizenship. Questions of citizenship for mariners were far more concrete than they were for most of the nation. While the nation debated the meaning and extent of American “liberty” and the uniqueness of the American character in the abstract, seamen painfully understood the limits of their liberty, and had real experiences with other lands and peoples with which to contrast their own American character. They were bound to the nation by an increasingly complex legal structure that made their participation direct and palpable. Although their pressure did force the federal courts fi rst to consider and then to defi ne their status as Americans, seamen remained limited, by both law and convention, in the ways in which they participated in and were protected by the federal government. Despite these limitations, it is significant that seafarers’ rights became one of the fi rst important tests of federal law, the federal courts, and a national identity. Because they pressed Congress to regulate their work environment, and the courts to delineate how those rulings would be applied, seamen prompted the machinery of the new nation for defi nitions and structure. John Truair was speaking of the value of the skilled merchant seaman as a potential asset in naval confl ict when he claimed that Britain and the United States both owed their existence to seamen, but in the American example, it is as true on a more abstract level. Seamen forced the federal government not only to defi ne the rights a seaman enjoyed as an American but also to begin to defi ne “American.” The issue of impressment brought nationwide attention to the position of American seafarers, and made their status as members of the Republic an important national cause. Seafarers’ status as Americans became, at least on a macro level, a vital political issue, as politicians railed against the deprivation of liberty represented by impressments and, later, warned that the disappearance of the true American “tar” put the nation in jeopardy. Because this debate about the “crisis” of American seamen continued in various forms throughout the antebellum era, both within and beyond the maritime world, seamen developed as a useful symbol of national identity, strength, manhood, and commercial prowess for writers across the political spectrum. Although they were often less concerned with the specific complaints of those who sailed before the mast, American writers, whether legal, political, or literary, increasingly turned to the sea to defi ne the nation, and its seafarers to defi ne the American man.

Chapter Nine

“We Are Eminently a Maritime People”: Seafarers and the American Character

The value of mariners to this great commercial country has not received from any class of persons on shore the consideration which it merits. . . . Mariners are they who are to man our wooden walls. —William Sullivan, Sea Life1 Sailors make an important class of men in every good government on earth. —John Truair, A Call from the Ocean 2

I

n 1812, New York pamphleteer William Sampson published a brief tract narrating the trials of two British naval officers accused of “murder and manstealing” against American seamen stemming from events on the ship Leander off of Neversink in New Jersey’s Atlantic highlands. Although Sampson’s account devoted almost no space to the specifics of the alleged crimes of Captains Henry Whitby and George Crimp, he did provide a detailed account of the courtroom drama. According to Sampson, the British officers showed nothing but disdain for the American legal system and chafed at the upstart nation’s interference with their authority. Henry Whitby openly mocked the proceedings. When asked how he would plead after hearing the indictment read, Whitby simply ignored the judge. From Sampson’s account: “The prisoner hereto made no answer but stood mute, and taking out a toothpick from his pocket, he began to pick his teeth herewith, and continued to do so, and hummed a couplet, of which the only words I could distinguish were ‘Britannia,’ and ‘bulwark.’”3 The second man charged, George Crimp, was less nonchalant but no more respectful of the American legal system. He objected strenuously to the rough makeup of the jury. What kind of a coun197

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try was this, demanded Crimp, where an English gentleman and an officer in His Majesty’s Royal Navy might be judged by Jews, Irishmen, Quakers, Portuguese, and a Dane?4 Both men were convicted of their crimes and sentenced to death by hanging. After conviction, the bluster the men showed in the courtroom failed them, and Whitby penned a dying declaration “in so trembling a hand, that though it was communicated to me, I have not been able to decipher the words.”5 Nevertheless, Sampson made an attempt to relate the confession that Whitby had penciled across two vellum sheets: **** ***** and ***** ***** and ***** ***** are d__d scoundrels, I was _____ by their lying, _____ and villain _____ to this disgrace. If ever _____ should _____ that _____ be hanged. I die in charity with all _____ but the Essex Junta, who have deceived and betrayed us _____ mercy _____ and remember _____ avoid bad company.”6

At the last moment, American justice proved merciful, and both men cheated the gallows when the British minister agreed to release “6257 Americans detained in the British fleet.”7 No such order was actually given, of course, and the stories of Whitby and Crimp are fiction, designed as a polemic arguing for war with Britain to make secure the rights of American citizens on land and at sea. Although fictional, Sampson’s parable says much about public perception of the relationship between seamen, the law, and the nation. It offered an opportunity to celebrate American diversity, and to contrast the hearty and egalitarian character of the young nation with the pomposity and brutality of the British navy. Sampson used his characters to highlight the differences between the two nations. The British defendants were portrayed as sullen, pompous, and wholly indifferent to the claims of American rights and independence. They demeaned the diversity of the nation (embodied in the jury), which, implied Sampson, was its strength. Additionally, and in contrast to the poor but honest seamen Crimp and Whitby abused and murdered, both revealed themselves as weak when confronted with their sentence. Whitby penned a trembling stock confession. His failure of nerve at the moment of judgment suggested what America could expect in a confl ict with Britain. The shallow puffery of Crimp and Whitby was to suggest that the imperial British lion was merely a paper tiger. The “trial” of Whitby and Crimp marks a transitional moment in both the form and content of the literature of the sea. The content of the narrative illustrates the political ideology of William Sampson and other “war

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hawks” in 1812. But the style he chose—a courtroom drama and death house confession—defi nes the audience he hoped to reach. That a court trial could be used as a vehicle for a war-hawk polemic suggests not only the extent to which court proceedings were familiar to his audience (he is, after all, parodying a familiar and popular formula) but also the extent to which the courts were seen as an embodiment of the American Republic. Whitby’s disdain for the court was his greatest crime.8 Though Sampson’s polemic hardly marks a high point in early national literature, his mock trial rode an early and important literary trend linking seafarers to the national character. According to Thomas Philbrick, “It was inevitable that this wide and varied maritime activity should fi nd expression in the literature of a people seeking to create a national identity.”9 Both the impressment crisis of the early nineteenth century and the rapid expansion in American cargo trade, fishing, whaling, and shipbuilding that followed the return of peace after 1815 rendered maritime subjects and themes useful to authors like Sampson and those who followed, including James Fenimore Cooper, Richard Henry Dana Jr., and Herman Melville. The impressment crisis drew the nation’s attention to seafarers and their status as Americans in dramatic fashion, and in doing so created a new literary role for Jack Tar: that of American hero.10 Rather than appearing primarily as pirates and criminals, impressed seamen became brave Americans who stood up against the continuing tyranny of the United States’ former colonial masters. Their plight—forced to serve in harsh conditions under the Union Jack—was at once a personal tragedy, a national shame, and evidence that the Revolution remained incomplete, and provided a rich vein of literary patriotism ready for authors to tap. Of course, just because “Jack Tar, American” became a useful political symbol for writers like Sampson and those who followed, does not mean that flesh-and-blood American seafarers necessarily embraced this role. Marxist scholars have long seen seamen as transcending nation. Most notably, Marcus Rediker and Peter Linebaugh argue that seamen were ardent internationalists who challenged the divisions among workers that came with the rise of the nation-state in the eighteenth and nineteenth centuries.11 Historians who examine seamen’s ideology question how much of seafarers’ stated republicanism was simply a tactic to improve conditions rather than earnest commitment to the cause.12 Even maritime memorialists like Dana, whose work makes up much of the historical record of antebellum seafarers, likely overstate both the personal and national character-building aspects of their adventures, if

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only to validate their own choices to go to sea. As Daniel Vickers notes, the exoticism and romanticism of sea literature and memoirs would have seemed laughably hyperbolic to the residents of seafaring towns like Salem, Massachusetts, where going to sea “was not a matter of individual choice as much as a local expectation.”13 Indeed, to the seamen of Salem and scores of other waterfront settlements, prosaic local attachments would often have trumped national identities on a day-to-day basis. Nevertheless, whatever seamen’s own ideological attachment to the new nation may have been, their rights as American citizens were important to Congress from the outset. In 1796, Congress passed the Act for the Relief and Protection of American Seamen, which sought to “inquire into the situation of such American citizens or others sailing under the protection of the American flag as have been impressed or hereafter may be impressed by a foreign Power.”14 Broader popular attention to the issue had to wait for the situation to worsen as the Royal Navy needed manpower during the Napoleonic Wars and found a ready supply on board the growing American merchant marine. As the numbers increased, the impressment issue brought the status of the seaman to national attention. Seamen suddenly became, at least rhetorically, the best of the nation, and the crucible of the national character.15 Evangelist and reformer John Truair went so far as to say, “It is not saying too much to affirm, that both England and America, at this moment, owe their national existence to their seamen.”16 To elite observers, the citizenship of seamen and the defense of their rights were important issues of international politics, even if many showed little concern for the rights of individual seamen. The impressments of American seamen into the British navy became a national scandal seen as a blight on the country’s honor, and it became a key rhetorical justification for the War of 1812. Even decades after the Treaty of Ghent effectively settled the impressments issue in 1815, it remained a powerful image of the perils that faced the young nation’s cherished liberty and independence. As a result, reformers and diarists latched on to impressments as a dramatic way to make their readers empathize with their subjects, and to distinguish the newly distinct character of the brave and patriotic American tar from the frightful, wanton, and dangerous types that continued to people the ships and docks of popular pirate literature and deathbed confessionals. By the 1820s, maritime reform organizations like the American Seamen’s Friend Society capitalized on the empathy for mariners brought about by the impressment crisis of the 1810s. Seamen, advocates argued,

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were not merely a metaphor for the United States’ sense of national pride but an important part of the society and the body politic.17 Even before he took the helm of the New York Port Society’s Mariner’s Church in 1824, the British-born Rev. John Truair understood that funding religious outreach would rely on linking his missionary work among seafarers to the national project. His mentor and leading force in the British and Foreign Seamen’s Friend Society, Rev. George Charles Smith, urged Truair to make his New York project a national one. As Smith explained to Truair in 1823, “Make it American, and every American citizen will feel more or less that it is his society and demands his aid.”18 Truair followed the advice, helping to create a separate American Seamen’s Friend Society in 1825, with its flagship publication The Mariner’s Magazine, a new American periodical distinct from the British Sailor’s Magazine.19 The following year, Truair published his manifesto on behalf of both his religious and national mission: A Call from the Ocean; or, An Appeal to the Patriot and Christian. Because it remained so dramatic a literary trope, authors stuck with impressments long after the actual threat had been settled.20 As late as 1845, Hawser Martingale continued to hammer against the tyranny of impressment to his audience, waxing that “their country could not protect them—and they were forced over the side, hurried on board ships of war—and compelled to serve the king of Great Britain, or be flogged unmercifully at the gangway—a singular alternative for an American citizen!”21 Indeed, for observers like Martingale, the citizenship of seamen never mattered so much as it did on a geopolitical level. The emotionally manipulative jingoism fostered by impressment pioneered by the likes of Sampson for political purposes in the early nineteenth century became fodder for Victorians anxious about the waning manliness of their effeminized modern world.22 By 1884, observers like memoirist and former tar Elbridge Brooks saw the impressment crisis as an important test in forging the mettle of the nation, when he argued, “All this, though disheartening, was serving a good purpose. It was developing the American Sailor. For, as is often shown, it is only through the harshest experiences that the stoutest manliness can come.”23 From his Victorian vantage point of a culture anxious about the national decline in manliness as the frontiersmen, adventurers, and seamen of a previous generation became the shopkeepers and clerks of the modern age, seamen represented everything that was best—and most imperiled—about American men.24 Going to sea, at least by proxy, represented a critical part of turning soft American boys into rugged American men. Brooks says of Dana’s memoir, “No American boy should be allowed to grow to manhood without having

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the opportunity to read this unaffected and manly recital of an American sailor’s experiences ‘before the mast.’”25 If Brooks can be dismissed as a Victorian romanticizing a bygone “manly” time, his purple prose builds upon earlier linkages between manliness and maritime adventure. After all, he encouraged the soft boys of his age to harden themselves for manhood with the words of Dana’s description of the 1830s. Indeed, the sheer popularity of boys’ running away to sea, both in reality and in literature before the Civil War, suggests that, for boys, the sea represented a quick and dynamic path to manhood. Such events were common enough along the waterfront that minors signing ships’ articles with false ages became a routine and open fraud. In 1857, a runaway from New Hampshire found himself in a Boston shipping office. According to Judge Peleg Sprague’s opinion, “He was then nineteen years of age, and so stated to the shipping master, who told him, that would not do, he must be twenty-one; he then said he guessed he was twenty one.” The shipping master then signed him to a whaler out of New Bedford, “without further inquiry.”26 In an 1844 case involving a young stowaway named Luscom on a Salem whaler, the owner claimed he should not have to pay the father for services the boy performed on board after discovery, noting “the practice of lads concealing themselves on board outward bound vessels, is an evil which the court should endeavor to suppress.”27 Judge Sprague disagreed, noting that little could be done to dampen the lure of the sea to such boys. Even if he were to rule that the boy’s father could be denied his son’s earned share of the catch, “that would have little influence upon the thoughtlessness of early youth, impelled by a spirit of adventure and an excited imagination.”28 Of course, not everyone valued equally the kind of manliness learned at sea. As Judge Sprague noted, Luscom’s father had not just lost four years of access to his minor son’s labor. More important, his son’s escape to the whaler meant his adult character was shaped by the sea, not by his father. According to Sprague, “Most important” was the father’s “losing control and supervision of his son during several years of the most critical period of his life, when his habits are to be formed, his education, perhaps, completed, and his occupation or profession determined.” Thus, noted Sprague sadly, “The most cherished purposes and fendest [sic] hopes, of the parent might thus be destroyed.”29 The link between the sea and the world of American letters is as old as it could be. The 1639 Almanack Calculated for New England, by Mr. Pierce, Mariner, reputedly the fi rst English-language book printed in

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the Americas, focused primarily on the waterways and fishing grounds of New England. 30 By the early national period, printing houses presented the public with a wide array of nautical guides, guidebooks for seamen and officers, logbooks, and all sorts of forms for use at sea. The world of the ships and courtroom connected directly with the world of American letters, for as America’s merchant marine swelled in the fi rst half of the nineteenth century, so did its place in both the legal and literary letters of the young Republic. According to Thomas Philbrick, the hundreds of sea novels, memoirs, and stories produced by American authors in the fi rst half of the nineteenth century marked an important attempt to craft a national identity through literature. He argues that “before 1850, the American frontier was primarily a maritime one, that the sea rather than the continental wilderness was the principal focus of the yearnings and imaginings of the American dream.”31 Centering his analysis on the maritime fiction of James Fenimore Cooper, he explores authors’ attempts to turn to the sea to chart, assert, and glamorize a distinctly American national identity in American literature. 32 Legal observers noted the importance of the maritime setting for the American project, too. According to theorist Erastus Benedict, the “American view” of maritime law, “springing out of the peculiar character of our institutions, considers that class of cases, as a most important branch of the national sovereignty, given to the General Government for the wisest purposes.” To him, the nation took legal shape through maritime matters as necessarily as “fi fty thousand miles of coast and shore of navigable waters” gave the nation its physical shape and commercial opportunities. 33 More recently, Robert Ferguson has shown a strong link between the law and an explicitly “American” literature in the early nineteenth century. Men like Richard Henry Dana Jr., Herman Melville, and James Fenimore Cooper, in both legal and literary works, sought to help shape and defi ne the nation. 34 It is not surprising, then, that the same figures who sought to defi ne the nation in expressionistic terms through literature also experienced the nuts-and-bolts process of expanding the legal authority of the apparatus of the nation-state. Dana’s Two Years before the Mast was celebrated as a literary masterpiece, a scathing exposé of shipboard life, and a call for reform. It also served as an excellent advertisement for his law fi rm in later years. With his wanderlust cured, Dana returned to Harvard, studied law, and his experience before the mast served as entrée into a legal career specializing in seafarers’ issues, focusing on the questions of rights and duties that he had begun to explore during his service on the Pilgrim. His second

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work, The Seaman’s Friend, put his legal and practical knowledge into a single guide for seafarers, officers, and attorneys. Melville, who also went to sea as a young man and later worked in the law, secured his literary place in the nation by returning metaphorically to the sea time and time again. In particular, his Billy Budd, Sailor, took inspiration directly from the celebrated case of the naval mutiny on board the Somers in 1843. Cooper, the author of more than a dozen sea stories and the fi rst history of the United States Navy, also had direct contact with legal cases brought by and against seamen. He served as American consul at Lyon, France, in 1826, although by most accounts he used his position more for the social opportunities it provided, and merely “played at being consul.”35 A decade later, during the 1837 session of the US Circuit Court in New York City, Cooper served as chairman of the grand jury, hearing fi rsthand the stories of violence at sea. Cooper, Dana, and Melville all took inspiration from direct contact with seafarers and the law. 36 Even important authors who did not write extensively about the sea found themselves reflecting on their position at the nexus where seafarers and the law met. Such was the case with Nathaniel Hawthorne, who served at the Boston Custom House for two years at the end of the 1830s and later was appointed American consul to Liverpool by college buddy President Franklin Pierce. 37 Although he often complained about almost everything, from his duties as consul to his lodgings to the English weather, Hawthorne saw his time in Liverpool as crucial in forging his sense of American identity. “I grew better acquainted with many of our national characteristics than in all my preceding life,” said Hawthorne of his years in Liverpool.38 Taken together, these legal, popular, and literary sources demonstrate that a broad cross section of citizens—seamen, officers, judges, legal scholars, and literary writers—were engaged through the maritime experience in a project of national defi nition for the early Republic. These two written worlds—fiction and law—are bound together not only by the fact that the same men engaged in both worlds but also by the fact that that both are attempts to render “frontiers” knowable and useful. Significantly, the two main conceptual and literal frontiers of the antebellum era, the ocean to the east and the territories to the west, are two places where a different attempt to defi ne the nation at the hands of a federal government expanding its reach, coherence, and power took place. Speaking of federal creation of territorial governments in the west and the expansion of federal maritime authority in this era, archaeologist and

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historian John Jenson argues, “These are the mechanisms for government power. These are where the tools are forged.”39 In an era in which, beyond the post office, the federal government had limited coherence for most Americans and exercised limited power in their lives, these two frontiers marked an opportunity used intentionally to expand federal power. American identity, whether literary assertion or legal authority, was defi ned at the national level in these two crucibles of culture, commerce, and power during the formational early national period. An American identity remained important to less literary-minded seamen as well, and they sought active participation in the nation and its rituals. Melville noted that the small mast by the cook’s house came to be known mockingly as the “liberty pole.”40 Hawser Martingale devoted an entire section of his Tales of the Ocean to the celebration of the Fourth of July at sea.41 In a bawdier example of the strength of seamen’s identification with their homeland, the chauvinism of American seamen seems to have extended even to a preference for American prostitutes in the dock districts of Europe.42 National chauvinism among seamen played out on shore as well as at sea. While enjoying shore leave in England, Melville’s fictional alter ego Redburn described a sailor’s boardinghouse displaying “the British Unicorn and the American Eagle, lying down by each other like the lion and the lamb in the millennium—a very judicious . . . device, showing a delicate apprehension of the propriety of conciliating American sailors in an English Boarding-House; and yet in no way derogating from the honor and dignity of England.”43 Officers also felt a strong connection to the American flag flying from their ship’s stern. Some captains seem to have taken their patriotism to heart in a brutal way, as was the case with one Captain White, whom Dana defended in 1851. According to the testimony of one of his victims, “Captain, he had a grudge against Englishmen,” and looked for an opportunity to whip English seaman.44 Francis Sherwood, captain of a New York packet and a staunch Connecticut Yankee, resigned his position rather than sail under a different flag when the company he sailed for went to a “flag of convenience” to avoid confiscation at the beginning of the Civil War.45 Even outside observers drew distinctions between American and foreign-born seamen. Hawthorne empathetically contrasted the American seamen who sought him out in Liverpool with those who beseeched him because they could not claim the protections of a democratic nation: “The men, whose appeals to the consul’s charity are the hardest to be denied are

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those who have no country—Hungarians, Poles, Cubans, Spanish Americans, French Republicans. All exiles for liberty come to me, as if the representative of America were their representative.”46 William Sullivan suggested that the greatest difference between an American and a European before the mast was the former’s understanding of future opportunities. In the United States, seamen had opportunities for advancement that they lacked abroad. According to Sullivan, “Foreign seamen may be as good men as any, but they are commonly men who do not expect to be any thing more than seamen, as they cannot become masters without being naturalized citizens.”47 For Sullivan, optimism born of opportunity was the most salient difference between American and foreign seamen. Officer tuned evangelist Captain Thomas V. Sullivan put it more succinctly than his namesake when he noticed with pride that “we are eminently a maritime people,”48 even as he called for additional training and government support to ensure that Americans would remain so in the future. But it was when seafarers sat down to write reflections on their time at sea that national chauvinism most came to the forefront. Elbridge Brooks, speaking of the 1830s, noted, “A Yankee crew, with a certain arrogance of its surroundings, was accustomed to commiserate and even to despise those whom fortune had placed in the ships of other nations.”49 Other memoirists made even more essentialist arguments. Nicholas Peter Isaacs infused his stories of two decades spent at sea with a venal antiCatholicism and hostility toward “Spaniards.”50 Similarly, Martingale regaled his audience with amusing stories based on the stereotyped shortcomings of “the Frenchman and the Spaniard.”51 In his Journal, Nagle described being threatened by Portuguese seamen, only to be promoted by the American captain to second mate due to his own inherent bravery and honesty. “Where is the fi ne sailor that threatened to heave the American overboard for not being a sailor?” asked the captain, who then demanded that the Portuguese “raskels” come aft to receive punishment.52 Charles Nordhoff summed up the American seaman’s sense of the maritime hierarchy, noting that American tars “looked down upon the ‘lime-juicers’ as they called English ships and sailors, as rather a stupid and semi-brutal lot. They laughed at the ‘parleyvoos,’ or Frenchmen, as better shoemakers than sailors. They despised the ‘Dagoes,’ or Spaniards as fellows who always lost the race.”53 Ever wistful for the heyday of manly American tars, Brooks noted, “The American sailor, in those ‘palmy days’ when there were American sailors, retained his manliness and his individuality where the seamen of other nationalities were apt to be surly, grum-

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bling, obsequious or time-serving, deceitful or insubordinate, according to their national characteristics or the nature of the service under whose flag they sailed.”54 Even Dana commented with considerable national pride that, “while foreign seamen sulk and grumble when ill-treated, injustice weighed more heavily in the breast of the American seaman, steeped as he was in the traditions of American liberty and justice.”55 Jingoism and national pride were not unique to American vessels or American seafarers, however. Nation was important to foreign seamen as well as their republican counterparts in the United States. After being condemned in an American court to hang for piracy in 1800, Pierre LaCroix wrapped himself in the rhetorical mantle of his own republic, writing a farewell letter to his family using the new calendar of the radical French Republic.56 Edward Jordan, who was hanged by British authorities in Halifax in 1809 for crimes aboard the Three Sisters, renounced both the British citizenship of his birth and his American home to identify himself as an Irish patriot before his execution.57 Similarly, the fi nal words of George Jones, convicted for his role in the Saladin mutiny in 1844, were to declare to the crowd gathered that “he is an Irishman, and from Clare.”58 Bill Johnston, a Canadian pirate, used the Revolution of 1837 as an opportunity to expand on years of piratical work along the Saint Lawrence River, identifying himself as the “Patriot Admiral” of Canada. Convicted and imprisoned at Auburn, New York, he was later pardoned by President William Henry Harrison.59 William Sullivan paid considerable attention to the status of merchant seamen as American citizens in his guidebook Sea Life. Sullivan wrote to be easily understood, seeing his book as a handy reference for all aspects of maritime work and life, and he took special care to present a primer on American civics, explaining what Congress is and how it functions, as well as why it was granted jurisdiction over the seas. Sullivan explained, in broad republican rhetoric, that the nation was called the United States of America “because the people who live in several states of North America, have agreed to make one nation out of the whole, for those purposes which concern the whole: they have agreed that men shall be chosen in the several states, who shall meet in the city of Washington once a year, and who shall be called, when they are met, a Congress, that is, men who have come together to make laws.”60 Not everyone saw seamen’s claims that they were full citizens and participants in the nation as a positive development. Martingale mocked the pretension of such claims of equality. “Although humble and submissive at sea, under a government purely despotic, [the seaman] is a great

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stickler for equal rights on shore. He is a great admirer of the leveling system; but like many modern Agrarians, who have never been drenched with salt water, he has a strange propensity for leveling downward instead of upward.”61 British observers in particular looked upon the assertions of American seamen with fear and concern. Mass defections and desertions from the British navy to the less draconian and better-paying American merchant service became a major issue, and a prime justification behind impressment. In addition, many observers blamed the influence of American republicanism for the mass mutinies at the Nore and Spithead in 1797 that paralyzed the Royal Navy. Indeed, though the seamen involved continually professed loyalty to the Crown and to Britain, the influence of recent events in the Americas and in revolutionary France had an obvious effect, as the men at one point considered giving their ad hoc naval government the title of “the floating republic.”62 In the nineteenth century, the notion of republican “equality,” whether American or French, remained troublesome for Britons at sea. The British seaman Aaron Smith expressed outrage at the low breeding and lofty attitudes of American seamen. Later, he described the mutiny of the crew on board his ship with the simple phrase “All subordination was at an end, and equality seemed to be the order of the day.”63 Indeed, if equality was a troublesome word for landlocked reactionaries, it could be a terrifying word at sea. Conservative Britons like Smith as well as Whiggish Americans fearful of the collapse of social deference could certainly empathize with ships’ officers, who felt their authority eroding (and along with it, they argued, their safety). To counter the effects of such dangerous “leveling” and “equality,” some observers sought to use citizenship to proscribe rather than enhance the rights of seafarers. Often, in the hands of legal authorities and guidebook authors, a seaman’s Americanness served to impose a duty upon him rather than imbue him with rights. As William Sullivan explained to seamen in his guidebook, on American ships, the federal government could both protect and punish seamen as necessary: “If the officers or crew of an American ship do any wrong on the high seas among themselves, it is not a matter in which any other nation can lawfully take part. It is a matter of which the laws of the United States only can take notice.”64 Justice Levi Woodbury, sitting for the Circuit Court in Massachusetts in 1846, explained that when seamen signed onto an American-flagged vessel, it “imposed a duty towards them[;] . . . it rendered them subject and responsible, while their

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service continued within our jurisdiction, to obedience to law.”65 Martingale warned, “An American sailor when abroad should recollect that he is a representative of his countrymen, and that it is in his power to convey to those among whom he mingles, a favorable impression of the general conduct, manners, and morals of his countrymen.”66 Upon sentencing the “pirates” Gibbs and Wansley to hang in 1836, Judge Samuel Rossiter Betts explained that their crimes seemed all the worse given the opportunities that their American citizenship had afforded the two. Explained Betts: You are American citizens, this country affords means of instruction to all: your appearance and your remarks have added evidence that you are more than ordinarily intelligent; that your education has enabled you to participate in the advantages of information open to all classes; the Court will believe that when you were young you looked with strong aversion on the course of life of the wicked—in early life, in boyhood, when you heard of the conduct of men, who engaged in robbery, nay more, when you heard of cold blooded murder; how you must have shrunk from the recital. Yet now, after participating in the advantages of education, after having arrived at full maturity, you stand here as murderers and robbers.67

To Betts, the crimes of Gibbs and Wansley were all the more heinous because of the opportunities available to them as Americans. The freedom they enjoyed as citizens meant they needed to be held to the highest standard of conduct. Indeed, the pageantry of an execution offered an opportunity to reinforce both the social order and the compassionate nature of the American soul. An account of the trial and execution of pirate Samuel Tully in 1812 noted that the crowd of fi fteen thousand who gathered in South Boston to watch Tully’s fi nal moments “evinced the affectionate sympathy which so eminently characterifies [sic] the American people.”68 The marshal presiding at Tully’s execution saw the occasion as a perfect opportunity to assert and celebrate the justice and wisdom of the national system. Although Tully had been executed, a coconspirator, Dalton, had been given a stay to continue his case. According to the marshal: The good people of the United States, when they formed their National Compact, wisely ordained among the duties assigned to the president, that he should execute the Laws with judgment and with mercy—

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while therefore he has left that man [pointing to Tully], who is now suspended between heaven and earth, a spectacle for men and angels, to suffer the pains adjudged him by the law—he has been disposed in mercy to respite the sentence of this man [pointing to Dalton], for a few days, that he may gain that information which may perhaps incline him to extend further favors.69

The marshal explained to the crowd that the mercy shown to Dalton illustrated that the United States’ fi rst focus was justice, not vengeance. The public ritual of the execution reinforced the just nature of the United States, reasserted the status quo, and reconfi rmed the rule of law in the nation. Antebellum seafarers, whether fictitious embodiments of the national character or flesh-and-blood Americans, defi ned themselves and were defi ned by others as Americans through their interaction with the nation itself. While symbolic and experiential claims of citizenship abounded, they are difficult for historians to pin down. However, through the literal point of intersection between seamen and the nation—the law—a clearer sense of the origins and contours of that metaphoric connection emerges. The grand claims of national character put forward in the works of Dana, Cooper, Melville, and others are but echoes of the actual arguments made at sea, and then in the courts and before American consuls abroad by seafarers. In turn, seamen and their advocates came to understand their rhetorical value to the nation, and sought advantage by asserting their importance to the nation. From the crisis of impressment to Jacksonian claims of equality, seamen used their national identity, just as the nation used them to seek to defi ne itself. The literature of the early Republic was, at root, a project of imagining the spirit of the new nation and the character of its citizenry. Whether metaphoric accounts of seafarers embracing the stout manliness of the rugged yet virtuous Republic, or the legal fi nery of jurists and consuls parsing the rights and responsibilities of those who came before them, those tasked with articulating the American character on the page used the dynamic point of intersection between the apparatuses of the nation (law) and the individual citizens on the water.

Conclusion

Jack Tar, American

“A citizen of the United States!” who shall dare touch him? That is to say, when he is a captain-citizen. As for the cattle-citizens who herd in the forecastle . . . their citizenship is quite a different affair. —Nicholas P. Trist, Consular Despatch 621 A great object has been gained when you have put any class upon the inquiry as to what their rights are. There is but little fear but that once ascertained they will uphold and defend them. —Frederic Sawyer, The Merchant’s and Shipmaster’s Guide 2

W

hen the Lorena took its brief, violent cruise in the East River in 1849, far more was at stake than fi rst appeared. The dispute—which began with perceived violations of unwritten rules of maritime practice, devolved into violence when personal honor was challenged, saw the invocation of the law through the ship’s articles, and eventually found its way into federal court—was at its core an attempt to negotiate over the rights and responsibilities of labor, the reach of law, and personal and national identity. From the ratification of the Constitution to the coming of the Civil War, seafarers battled on the decks of American vessels about the prosaic aspects of their work and about the imbalance of power that clashed in the tight quarters of the ship. Stemming from these everyday confl icts was a far deeper dialogue, one central to forming the legal and cultural identity of the young nation. The evolution of legislation overseeing shipboard labor, the judicial understanding of those laws, and seafarers’ use of (and resistance to) them redefi ned the relationships between seamen and officers, and seamen and the nation in the period before the Civil War. 211

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The participants on the Lorena demonstrated the willingness of seafarers to press for legal change, defend craft standards and personal honor, and demand that they be seen as Americans, full citizens, worthy of support and defense. In turn, they laid their increasingly sophisticated claims for participation in the nation before the courts for adjudication and redress. Throughout, both sides debated not just the specific incidents from the deck of a lone ship but also the underlying issues of labor, rights, honor, and citizenship. Once the courts ruled, their decisions were taken up by attorneys and authors who, in their articles and guidebooks, reinterpreted and reported the outcome. Their work was digested and reappropriated by other seamen and officers in a new round of negotiations and struggles at sea and in court. This book’s primary contention is that the law is far more central to how life and labor operated in the maritime setting than historians have heretofore acknowledged. American ships before the 1860s need to be understood as a legal environment just as much as a labor, cultural, or social one. Things that happened at sea, whether they ended up in court or not, were shaped dramatically by the changing legal understandings of the age. From the standpoint of the nation, maritime cases became the proving ground where national regulation and federal jurisprudence took meaningful shape. Seamen were far from mere clients of the state, buffeted for good or ill by the vagaries of developing regulation. For their part, seamen sought to expand their claims for better treatment by invoking their status as US citizens. In doing so, and in using the federal legal system to press these claims, seamen strengthened their link to the nation. Rather than the radical internationalists that some historians describe Atlantic seafarers as being in the eighteenth century, the crews of American antebellum vessels used the apparatuses of the legal system to press their case, to demand redress, and to assert their understandings of the privileges of manhood and citizenship. By one interpretation, this makes them decidedly unradical clients of the state, complacent to push for modest reforms from within existing hierarchies both small (the ship) and large (the nation). But such an interpretation belies the complexities of the ship-to-court-to-ship discourse, in which seamen pressed for their understanding of the rights and conventions of their craft, as well as their legal rights as citizens, amid rapid legal change. They sought advantage in each new law, seeking to bend its interpretation to their own needs. Moreover, their actions—legal and illegal—at sea prompted Congress and the courts to address these claims in the fi rst place. All sides participated in a maritime world that

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grew to accept a fluid mixture of law, convention, and personal honor as the essential core that governed expectations. Historians will continue to debate the extent to which the maritime setting was or was not “exceptional,” and arguments will long continue about whether seafarers created a unique, transnational culture distinct from their terrene neighbors or were simply workers in a particular arena, damper than most. Examining seamen’s lives on ship and their actions in court and before consuls tells much about the important but distinct maritime world. Yet the ways in which seafarers interacted with the apparatuses of the state have consequences that reach well beyond the water’s edge. Act by act, court case by court case, seafarers of all ranks saw the basic social relationships of their workplace reshaped through this discourse with federal authority. From the insertion of a written contract into the labor arrangement in the form of ship’s articles in the colonial era, to the clarifications of what constituted criminal behavior at sea in 1835, to the expansion of seafarers’ access to consular authority in 1840, to the prohibition against flogging in 1850, the law bound sea life into a tightening framework that in both radical and subtle ways changed the nature of the relationship among seafarers, officers, and the national state. The expansion of text at the top of ship’s articles, which grew crowded with acts of Congress—compressing the crew lists, ports of call, and wages for a voyage into the remaining space—graphically demonstrates the increasing significance of the law on US-flagged vessels. Those on board the Lorena found their actions framed by a set of legal structures that had grown dramatically in sophistication and complexity since the Constitution fi rst called for “admiralty and maritime” jurisdiction to be granted to the federal government in 1787. Whether intended to make the business of seafaring run smoothly, clarify the power of officers, or protect men from mistreatment, in the aggregate, the legal world that surrounded US-flagged commercial vessels was every bit as significant to how life and labor operated at sea as the technologies of sail and vicissitudes of weather. Despite its seemingly ancient origins and peculiar practices, maritime law became central to the structure of labor and the flow of commerce in the early Republic as the United States expanded its presence in the world. Moreover, in framing behaviors and expectations on ships, the federal government inserted itself into the heart of one of the most significant sectors of American society. Not only did the regulation of shipboard life mean seafarers interacted powerfully with the federal government itself, but, in the hands of jurists bent on expanding the power

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of the federal state (and in particular the judiciary), the series of congressional acts and the judicial interpretations that followed laid the groundwork for a far more coherent and powerful federal state. From the federal bench, jurists like Samuel Betts in New York, Peleg Sprague in Massachusetts, and John Story on the Supreme Court sought an expanded role for the federal government in ordering and promoting trade, and for providing coherent practice to the business of the young nation, presaging the leaps in federal power during the Civil War. As the laws changed, and as their interpretation by jurists, guidebook authors, and seamen themselves continued to develop, all parties in this discourse engaged in a struggle over both the legal rules and the craft norms of shipboard activities. Seafarers participated in a distinct culture at sea, different in practices, dress, terminology, and expectations from those ashore. This gendered web of personal expectations and craft traditions framed shipboard life. Yet, much as with men ashore in the antebellum era, shifting norms and rapidly changing economic realities meant that the challenges to personal honor and the rights and dignity of artisanal labor ashore had analogues at sea. Seamen and officers struggled to make sense of their own dignity as men, bound between developing maritime traditions, changing terrene expectations, and growing legal incursion into the daily orderings of their world. The expectations of shipmates, the pity of paternalist reformers, and the expanding reach of federal authority from outside the maritime world all challenged seafarers’ sense of themselves and their crafts. In response, they resisted, rejected, adapted, and adopted from these invading authorities and ideologies in ways that reorganized expectations at sea, and in ways that impacted expectations ashore as well. Of course, most men were not born at sea, nor did even the saltiest of old tars spend his entire working life away from shore. The idiosyncratic codes of honor and behavior that helped regulate shipboard behavior and determine when men grumbled, resisted, or even mutinied were deeply impacted, not only by legal developments originating ashore, but also by the large currents of gender ideology ashore. Notions of honor based on personal mastery, central to the underpinnings of command in the early days of the Republic, came under siege on three sides. The democratizing, egalitarian impulses of the Jacksonian age, reformist and Whiggish notions of self-mastery stemming from the Second Great Awakening, and officers’ discretion being usurped by legal regulation and more aggressive jurists all reordered understandings of personal honor and disciplinary control at sea in the years between 1789 and 1861.

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Changing notions of honor, informed by legal changes, also impacted what all at sea understood as the unwritten codes of convention of their craft. Far from unchanging, craft conventions and perceptions of what constituted “manly” or honorable behavior, and what men would accept from officers and vice versa, shifted over time. The fact that the most iconic form of corporal punishment—the lash—became “uncommon usage” according to the testimony of seamen well before it became explicitly illegal in 1850 illustrates this shift. At the same moment that seafarers sometimes used and sometimes chafed against legal changes in order to improve (or at least maintain) their customary rights at sea, officers of all rank faced pressure from reformers and encroachments from the law that collided with their understanding of honor as central to their command and safety. Multiple defi nitions of the verb to master—including mastery of the skills of navigation and seafaring, physical control of others under their command, and the self-mastery of middle-class restraint—pulled officers in multiple directions, prompting cries of undermining and a crisis of authority. Growing out of this confusing, contested tug-of-war for power between seafarers and officers, and between the reach of law and the pull of convention and honor, was a growing engagement of all parties with both the literal apparatuses of the nation and the philosophical rights seafarers could claim. The reach of the law turned seamen from wards to citizens, at least in their own eyes, and their claim that the nation be their defender became suffused with fi rst the republican rhetoric of the early Republic and then the democratizing ethos of the Jacksonian age. For their part, US consuls, the purported champions of seafarers’ rights while abroad, varied wildly in preparation for and interest in their job. These undertrained officials, whose numbers rose due to both the growth of American trade around the world and the proliferation of patronage positions in the Jacksonian era, found themselves forced to take on not only tasks of legal interpretation but also questions of real human need and grand philosophical importance. The hungry seafarers who showed up in the hallway outside Hawthorne’s consular office in Liverpool not only posed questions relating to immediate needs (food, shelter, and passage home) but also raised issues of legal responsibility (who pays, and what recourse does the consul have to make someone pay) and grander philosophical questions about who “counts” as an American for the purposes of consular protection, and what are the rights of seafarers, American or not, on American vessels. As such, consuls, too, were drawn into the grand discourses of rights, expectations, personal honor, responsibilities, and re-

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publican citizenship that tumbled out of violent outbursts like that on the Lorena. Although contemporaries often saw seafarers as distinct, exceptional, and dangerous, the seamen of the early Republic forced the new nation to build, through the courts and consuls, a system to defi ne itself. Citizenship, left undefi ned in the Constitution, and largely unaddressed federally until the end of the Civil War, had to be defi ned for the seamen who relied on the nation for support and defense. Seamen’s Protections and seafarers’ rigorous use of the apparatuses of the federal government not only bound seamen to the nation in powerful ways, but seamen also became critical sites of national defi nition and, eventually, convenient metaphors for the spirit of a new, dynamic, mobile, commercial nation, and a ready stand-in for the quintessential American character. In the years before the Civil

Figure 10. The prevalence of images of seamen demonstrates the extent to which the United States was an essentially maritime nation before the Civil War. This advertisement for “Young America Denims” illustrates how the maritime life had come to embody adventure and a crucible of rugged, distinctly American manhood. Throughout American culture, but especially in literature and advertisements like this, seamen were idealized as embodiments of the national project.

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War, the United States came to understand the seas as an important proving ground for American men, and seamen were romanticized into rugged exemplars of the strength of the national character. In deciding maritime cases, the federal courts had to develop concrete answers to such debated theoretical questions as the rights of labor, personal honor and dignity, and the meaning and privileges of citizenship. In the process, they shaped both the legal and popular understandings of these concepts, and the still uncertain role of law in the early Republic. That so many authors self-consciously engaged in defi ning the character of the American man turned to the water to do so, and that so many of them had witnessed fi rsthand the dynamic national pageantry of seafarers either in court or before consuls, makes explicit the link between the two. Disputes like the one on the Lorena may seem specific in origin and venue, but they are vast in implication and importance. These cases engaged one of the most important groups of laborers in a critical and constructive ongoing debate with the government itself at a crucial time in the development of the new nation. If this conversation ended here, it would already be of great historical importance. However, its reverberations echoed well beyond the courts. Seafarers were part of a dynamic labor environment, where changing legal regulation and traditional conventions, themselves unstable and fluid, underwent subtle, but powerful changes in the early Republic—changes that responded to, informed, and resonated with the dramatic changes taking place ashore. Whether on the ocean or before the bar, seamen and officers used the law, their craft identity and personal honor, and their rights as citizens to debate the critical questions faced by the nation. Maritime legal developments not only were central to the commercial growth of the young nation but also served as important building blocks of federal authority, even as this republican, legally constrained sea became the metaphoric crucible of a distinctively and quintessentially American identity. Thus, seafarers’ words and deeds forced the nation, in the form of courts, Congress, and consuls, to address and defi ne itself and the relationship between the nation and its citizens in concrete, meaningful terms.

Notes

Introduction 1. James Fenimore Cooper, introduction to The Wing-and-Wing (New York, 1843), 8. 2. Sir James Marriott, cited in the opinion of Judge Bee, Ellison et al. v. The Bellona, D.C.D.S.C. (1798), Case No. 4,406, U.S. Dist. LEXIS 14, 8 F. Cas. 556, 1 Bee 106. 3. United States v. James Jones et al., C.C.S.D.N.Y. (1849), deposition of Joseph Conway, April, 12, 1849. 4. Ibid., deposition of William Robertson, April 12, 1849. 5. Ibid., deposition of John Flood, April 12, 1849. 6. Ibid., deposition of Captain Joseph Conway, April 12, 1849, and deposition of Chief Mate Ebenezer Williams, April 12, 1849. 7. Although many civil cases are referenced herein, the main focus remains on criminal cases. Similarly, the focus remains on the American-fl agged merchant marine, not because the organization of life or labor in the navy was so different (although important differences certainly existed), but because the legal structures differed substantively between the merchant and naval services. Although early English Admiralty courts did not draw such a clear distinction, generally speaking, military justice has a substantially different history and origin, and it is the intersection between seafarers and officers who have signed articles as employees in a regular commercial endeavor, not for military service, that best illustrates the complex intersection of the individual and the nation that I am examining. 8. For a comparison of British and American maritime regulatory developments in a similar period, see Leon Fink, Sweatshops at Sea: Merchant Seamen in the World’s First Globalized Industry, from 1812 to the Present (Chapel Hill: University of North Carolina Press, 2011), 9–63. 9. The circuit court, created in 1790, has records of 1,043 criminal cases through 1861. The district court, which maintained separate criminal records beginning in 1846, heard 830 criminal cases though 1861. Except where otherwise noted, case fi le information from these courts was found at the New York branch of the National Archives and Records Administration (NARA). Records come from Record Group #21 and

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comprise the fi les and docket books of the Circuit Court and District Court for the Southern District of New York (hereafter C.C.S.D.N.Y. and D.C.S.D.N.Y., respectively). Because of changes and discrepancies in the organization of fi les, pre-1853 C.C.S.D.N.Y. cases are identified by defendant only, while later C.C.S.D.N.Y. and D.C.S.D.N.Y. records include docket numbers. The C.C.S.D.N.Y. criminal case fi les are cataloged as RG-21 #175; the docket books from 1853 to 1906 are RG-21 #68. For the district court, the 1846–68 case fi les are RG-21 #195; the docket is RG-21 #196. Cases from the Boston law practice of Richard Henry Dana Jr. are part of the Dana Collection at the American Antiquarian Society, Worcester, Massachusetts (hereafter AAS/Dana). Additional materials have been drawn from consular records (RG-84, housed at the NARA facility in College Park, Maryland), and the complementary dispatches from American consuls abroad in the records of the Department of State (RG-59, also housed in College Park). 10. On the recent historiographical debates surrounding seafarers and their labor, see Daniel Vickers, “Beyond Jack Tar,” William and Mary Quarterly, 3rd ser., 50, no. 2 (April 1993): 418–24; and Matthew Raffety, “Recent Currents in Nineteenth Century Maritime History,” History Compass 6, no. 2 (2008): 607–26. 11. Legal scholars have examined the exceptional nature of maritime and admiralty law (see chap. 2), but only a handful of scholars have made use of court records to examine maritime life and labor. Daniel Vickers and Vince Walsh point to maritime law as a useful site of further inquiry in Young Men and the Sea (New Haven, CT: Yale University Press, 2005). Paul A. Gilje, in Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania, 2004), makes good use of court records throughout. A narrower example can be found in Kathryn Mudgett’s examination of a single famous case from 1835 in “‘Cruelty to Seamen’: Richard Henry Dana Jr., Justice Story, and the Case of Nichols and Couch,” American Neptune 62, no. 1 (Winter 2002): 47–68. For an earlier period, Marcus Rediker uses court cases to dramatic effect in Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates and the Anglo-American Maritime World, 1700–1750 (New York: Cambridge University Press, 1989). 12. Marbury v. Madison, 5 U.S. 137 (1803), 5 U.S. 137 (Cranch); and US Constitution, art. III, § 2. See also David W. Robertson, Admiralty and Federalism: History and Analysis of Federal-State Relations in the Maritime Law of the United States (Mineola, NY: Foundation Press, 1970), 1. 13. On the complexity of these multi-authored accounts, see Mudgett, “‘Cruelty to Seamen,’” 51–52.

Pa rt I 1. William Langewiesche, The Outlaw Sea (New York: North Point Press, 2004), 3. 2. The law went to sea, but the seas were to be, in their conception, spaces outside of any specific sovereign jurisdiction. The Dutch jurist and philosopher Hugo Grotius’s Mare Liberum (1609) fi rst articulated the notion that the seas are open for all nations to trade. Significantly, though, Grotius, an attorney for the Dutch East India Company, was writing not to justify a lack of law or jurisdiction for the sea, but rather to insist

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that all nations could, for their own vessels, use their own laws to promote their own national interests. See James Brown Scott, introduction to Grotius, The Freedom of the Seas (New York: Oxford, 1916), vi. For a contemporary articulation of the principle, see Erastus C. Benedict, The American Admiralty, Its Jurisdiction and Practice: With Practical Forms and Directions (New York: Banks, Gould, 1850), § 4. 3. Elizabeth Manke, “Empire and State,” in The British Atlantic World, 1500–1800, 2nd ed., ed. David Armitage and Michael J. Braddick, 196–206 (New York: Palgrave Macmillan, 2009). 4. Linda Colley, Britons: Forging the Nation, 1707–1873 (New Haven, CT: Yale University Press, 1992), 55–105, 132–45. 5. Drew McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill: University of North Carolina Press, 1980), 9. 6. A recent conference brought together work explicitly examining this radical aspect of seafarers: “Mutiny and Maritime Radicalism: A World Survey,” International Instituut voor Sociale Geshedenis, Amsterdam, Netherlands, June 16–18, 2011. 7. Gautham Rao, “Visible Hands: Customhouses, Law, Capitalism and the Mercantile State of the Early Republic” (PhD diss., University of Chicago, 2008), 30. 8. Frederic Sawyer, The Merchant’s and Shipmaster’s Guide, in Relation to Rights, Duties, and Liabilities (Boston: Benjamin Loring, 1840), v; and Joseph Blunt, The Shipmaster’s Assistant and Commercial Digest, 9th ed. (New York: E. & G. W. Blunt, 1857), iii.

Ch a pter 1 1. Herman Melville, Redburn (New York, 1849; repr., with an introduction by Harold Beaver, New York: Penguin Books, 1986), 181. Page reference is to the reprint edition. 2. See Robert G. Albion, The Rise of the Port of New York, 1815–1860 (1939; repr., Devon, UK: David & Charles, 1970). 3. Leon Fink, Sweatshops at Sea (Chapel Hill: University of North Carolina Press, 2011), 11; and Paul Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania, 2004), 24. 4. The economic importance of American seafaring has been debated by scholars and pundits since the beginning of the American Republic. Notable classics in the field include John G. B. Hutchins, The American Maritime Industries and Public Policy, 1789–1914: An Economic History (Cambridge, MA: Harvard University Press, 1941); Robert G. Albion, The Rise of the Port of New York (New York: Charles Scribner’s Sons, 1939); and Robert G. Albion, Square-Riggers on Schedule: The New York Sailing Packets to England, France, and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938). See also Samuel Elliot Morison, The Maritime History of Massachusetts, 1783–1860 (Boston: Houghton Mifflin, 1921). For a more recent example focused on the Canadian Maritimes, see Eric W. Sager with Gerald E. Panting, Maritime Capital: The Shipping Industry in Atlantic Canada, 1820–1914 (Toronto: McGill-Queens University Press, 1996). 5. Thomas Paine, Common Sense (1776).

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6. Charles Tyng, Before the Wind (1833; repr., New York: Viking, 1999), 17. Page reference is to the reprint edition. 7. Among the best of these accounts is John A. Butler’s Sailing on Friday: The Perilous Voyage of America’s Merchant Marine (Washington, DC: Brassey’s, 1997). Also useful is Margaret Creighton’s exploration of the whale fishery, Rites and Passages: The Experiences of American Whaling, 1830–1870 (New York: Cambridge, 1995); and Daniel Vickers with Vince Walsh’s study of Salem, Massachusetts, Young Men and the Sea (New Haven, CT: Yale University Press, 2005). Judith Fingard’s Jack in Port: Sailortowns of Eastern Canada (Toronto: University of Toronto Press, 1982) studies seafarers more in port than at sea, but is nonetheless helpful. 8. Unlike workers on land, whose wages had no legal protection from their employers’ bankruptcy, seamen could sue in court for the seizure of the ship and its tackle under the legal principle of “bottomry” if wages were unpaid for any reason. Indeed, because of the ease with which men could put liens against ships, such suits became a substantial percentage of federal civil proceedings before the Civil War. This protection has its origins in the prefederal period. As Richard B. Morris notes, seamen were able to claim the rights of contract for wages, whether that contract was oral or written, in colonial North America. Morris, Government and Labor in Early America (1946; repr., New York: Harper & Row, 1965), 235. Page reference is to the reprint edition. 9. From a practical standpoint, both terms refer to a certificate asserting the national character of the vessel. “Registration” was (and remains) required for vessels primarily engaged in international commerce, while coasting and inland vessels, as well as fishing vessels, are “enrolled.” Henry Campbell Black, Black’s Law Dictionary, 6th ed. (St. Paul: West, 1990), sv “enrolled,” “registration.” 10. Charge to grand jury, Circuit Court, D. Rhode Island (November 15, 1853), 30 F. Cas. 981, 1853 U.S. App. LEXIS 583, 1 Curt. 590. 11. Thomas V. Sullivan, Scarcity of Seamen (Boston: J. Howe, 1853), 3. 12. Margaret S. Creighton, Rites and Passages: The Experience of American Whaling, 1830–1870 (New York: Cambridge University Press, 1995), 198. 13. George W. Dalzell, The Flight from the Flag: The Continuing Effect of the Civil War upon the American Carrying Trade (Chapel Hill: University of North Carolina Press, 1940). American whalers also fled US jurisdiction by selling to French and British interests in anticipation of the War of 1812. See Ernest S. Dodge, New England and the South Seas (Cambridge, MA: Harvard University Press, 1965), 30. 14. Creighton, Rites and Passages, 16–40. See also Edouard A. Stackpole, The SeaHunters: New England Whalemen during Two Centuries, 1635–1835 (Philadelphia: J. B. Lippincott, 1953), 452–73. 15. Although the American fi rm of Edward Knight Collins did challenge Cunard between 1847 and 1856 in the transatlantic steam trade by culling some of Cunard’s high-end customers, Cunard survived the trade war and managed to remain the preeminent provider of steam transportation across the Atlantic. Alex Roland, W. Jeffrey Bolster, and Alexander Keyssar, The Way of the Ship: America’s Maritime History Reenvisioned, 1600–2000 (Hoboken, NJ: John Wiley and Sons, 2007), 162–67. 16. Steven L. Snell, Courts of Admiralty and the Common Law: Origins of the

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American Experiment in Concurrent Jurisdiction (Durham, NC: Carolina Academic Press, 2007), 255. 17. Butler, Sailing on Friday, 49; and An Act to Provide for the Better Security of the Lives of Passengers aboard Vessels Propelled in Whole or in Part by Steam, July 7, 1838, 5 Stat. L., 304. 18. On the development of riparian steamboats, see Roland, Bolster, and Keyssar, Way of the Ship, 121–22, 130–38. Jurisdictionally, the inland waterways remained contested. Federal jurists like Judge Samuel Rossiter Betts of New York (S.D.N.Y.) and Justice Joseph Story argued adamantly (and eventually successfully) for a defi nition that included the vast majority of inland navigable waters, but the point was in doubt for much of the rise of steam power on rivers and lakes. For an impassioned defense of federal authority on inland waterways, see Benedict, American Admiralty, §§ 125–56. 19. Felix Riesenberg, Standard Seamanship for the Merchant Service (New York: Van Nostrand, 1922), 9. 20. Gilje, Liberty on the Waterfront, 80–81. 21. Margaret Creighton, “The Private Life of Jack Tar: Sailors at Sea in the Nineteenth Century” (PhD diss., Boston University, 1985), 77. 22. Thomas V. Sullivan, Scarcity of Seamen, 8. 23. In his close reading of Salem, Massachusetts, Daniel Vickers notes wisely that grand, cosmopolitan maritime cities like London, New York, Liverpool, and Boston were the exception, and that many seafarers remained connected to land communities. Vickers, Young Men and the Sea, 77, 130. Other scholars, like Jesse Lemisch and Paul Gilje, seek to reintegrate maritime labor into the political realm of the young Republic. Jesse Lemisch, Jack Tar vs. John Bull: The Role of New York’s Seamen in Precipitating the Revolution (New York: Garland Publishing, 1997); and Gilje, Liberty on the Waterfront. 24. Eric W. Sager, Seafaring Labour: The Merchant Marine of Atlantic Canada, 1820–1914 (Toronto: McGill-Queen’s University Press, 1986), 10. 25. See Jonathan A. Glickstein, Concepts of Free Labor in Antebellum America (New Haven, CT: Yale University Press, 1991). 26. W. Jeffrey Bolster, Black Jacks: African American Seamen in the Age of Sail (Cambridge, MA: Harvard University Press, 1997), 76. 27. Thomas V. Sullivan, Scarcity of Seamen, 8. 28. Briton Cooper Busch, Whaling Will Never Do for Me: The American Whaleman in the Nineteenth Century (Lexington: University Press of Kentucky, 1994), 2. 29. Sager, Seafaring Labour, 12. 30. Richard Henry Dana Jr., Two Years before the Mast (Boston, 1840; repr., with an introduction by Thomas Philbrick, New York: Penguin Books, 1986), 120. Page reference is to the reprint edition. 31. William Sullivan, Sea Life; or, What May or May Not Be Done and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates and Seamen (Boston: James B. Dow, 1837), 68. 32. See especially Robert Keith Schaeffer, “The Chains of Bondage Broke: The Proletarianization of Seafaring Labor, 1600–1800” (PhD diss., SUNY Binghamton, 1984); and Lemisch, Jack Tar vs. John Bull, 9.

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33. Sager, Seafaring Labour, 14. 34. Albion, Port of New York. Whaleships evoked frequent descriptions as “floating factories,” due both to the work performed and to the dreadful stench and conditions created by blubber rendering. Ironically, however, whalemen continued to be paid by shares, thus sharing the risk and reward with the captains and owners in a way that true factory workers (and merchant seamen) did not. 35. Seamen’s days were divided into regular “watches,” but the weather and wind determined what work could or could not be done on that watch. 36. Thomas V. Sullivan, Scarcity of Seamen, 9. 37. David Alexander, “Literacy among Canadian and Foreign Seamen, 1863–1899,” in Working Men Who Got Wet, ed. Rosemary Ommer and Gerald Panting (St. Johns, NS: Maritime History Group, 1980), 32. Cited also in Sager, Seafaring Labour, 3. Lemisch also describes the typical seaman as “simply a landman gone to sea.” Lemisch, Jack Tar vs. John Bull, 6. 38. “Class” in the Marxist sense did not exist at sea before the Civil War, although some scholars have argued that seamen were being “proletarianized” before 1800. Schaeffer, “Chains of Bondage Broke.” The situation at sea conformed more with Max Weber’s description of “status.” Max Weber, “The Distribution of Power within the Political Community: Class, Status, Party” (1914), reprinted in Economy and Society, ed. G. Roth and C. Wittich, 926–40 (New York: Bedminster Press, 1968). Hierarchy at sea was more than just a question of economic position; it relied heavily on personal skill and honor. Seafaring was a skilled profession, and, as Eric Sager notes, skill was central to the production of social relations at sea. Sager, Seafaring Labour, 6–12. By contrast, Daniel Vickers argues that “class” was central to maritime labor, for, “while at sea . . . mariners were paid laborers in the employ of merchant capitalists, and while both parties shared an interest in the success of the voyage, they profited from it in different ways,” but notes that, at least for eighteenth-century Salem mariners, “the influence of class begins to dim” when one takes into account the fact that seafarers were not necessarily bound to a single class status for their entire working lives, whether or not they continued to earn their living on the water. Vickers, Young Men and the Sea, 127. 39. Seamen, due to their “general improvidence and rashness,” were treated as “wards of admiralty,” afforded special protections from the federal government, especially the courts. Black, Black’s Law Dictionary, 1583–84. 40. Though the captain was charged with the dispensing of food and medicine, it was the ship itself that was liable for these provisions. Christopher L. Tomlins, Labor, Law, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 338, supra 19. 41. Benjamin Franklin, The Autobiography of Benjamin Franklin (New York: G. P. Putnam’s Sons, 1890), 15, 36. 42. Creighton, Rites and Passages, 52. 43. Frederick Pease Harlow, The Making of a Sailor; or, Sea Life aboard a Yankee Square Rigger (Salem, MA: Marine Research Society, 1928; repr., Mineola, NY: Dover, 1988), 4. Page reference is to the reprint edition. 44. William Sullivan, Sea Life; Thomas V. Sullivan, Scarcity of Seamen; and Harry P. Skallerup, Books Afloat and Ashore: A History of Books, Libraries, and Reading

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among Seamen during the Age of Sail (Hamden, CT: Archon Books, 1974), 18–40, 78–108. 45. Samuel Eliot Morison, The Maritime History of Massachusetts, 1783–1860 (1921; repr., Boston: Northeastern University Press, 1979), 107. Page reference is to the reprint edition. 46. Skallerup, Books Afloat and Ashore, 22, 204. 47. Melville, Redburn, 86. 48. Daniel Vickers, “Beyond Jack Tar,” William and Mary Quarterly, 3rd ser., 50, no. 2 (April 1993): 418–24. 49. See Matthew Raffety, “Recent Currents in the Nineteenth-Century American Maritime History,” History Compass 6, no. 2 (2008): 608–9. 50. Fink, Sweatshops at Sea, 9–63; cf. Sean Wilentz, Chants Democratic (New York: Oxford University Press, 1984). 51. William Sullivan, Sea Life, 91. 52. Ibid. Also see Charles Tyng, Before the Wind (1833; repr., New York: Viking, 1999), 38; and Andrew Shewan, The Great Days of Sail (1927; repr., London: Conway Maritime Press, 1996), 19, 41. Page references are to the reprint editions. 53. K. Jack Bauer, A Maritime History of the United States (Columbia: University of South Carolina Press, 1988), 58. 54. Craig J. Forsyth, The Merchant Seaman and His Industry (New York: Taylor & Francis, 1989), 6. 55. John Bunker, “A History of the SIU” (Seafarers International Union), accessed July 14, 2008, http://www.seafarers.org/aboutthesiu/history.asp. 56. The most common form of protest, simple desertion, was almost exclusively an individual act. Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700–1750 (Cambridge: Cambridge University Press, 1987), 115. 57. Gilje, Liberty on the Waterfront, 141, 150; and Keith Mercer, “Northern Exposure: Resistance to Naval Impressment in British North America, 1775–1815,” Canadian Historical Review 91 (June 2010): 199–232. 58. Forsyth, Merchant Seaman and His Industry, 4–7. 59. William Sullivan, Sea Life, 33. 60. Mariam G. Sherar, Shipping Out: A Sociological Study of American Merchant Seamen (Centreville, MD: Cornell Maritime Press, 1973), 2. 61. Forsyth, Merchant Seaman and His Industry, 5. 62. Peter Linebaugh and Marcus Rediker, The Many Headed Hydra: Sailors Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000). 63. Lawrence Osborne, “A Pirate’s Progress: How the Maritime Rogue Became a Multicultural Hero,” Lingua Franca (March 1988): 35–42; Sager, Seafaring Labour, 3–20; Rediker and Linebaugh, Many Headed Hydra, cf. Schaeffer, “Chains of Bondage Broke,” 211–13; and David Cordingly, Under the Black Flag: The Romance and the Reality of Life among the Pirates (New York: Random House, 1995). 64. Jesse Lemisch and John K. Alexander, “The White Oaks, Jack Tar, and the Concept of the ‘Inarticulate,’” William and Mary Quarterly, 3rd ser., 29, no. 1 (1972):

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109–42; G. E. Manwaring and Bonamy Dobrée, Mutiny: The Floating Republic (1935; repr., London: Century Hutchinson, 1987). This argument was also the organizing principle for a conference: “Mutiny and Maritime Radicalism: A World Survey,” International Instituut voor Sociale Geshedenis, Amsterdam, Netherlands, June 16–18, 2011.

Ch a pter 2 1. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, 1833), § 1666. 2. Antoninus, Digest of Justinian, book 14, title 2, § 9. 3. Erastus C. Benedict, cited in Proceedings Had on November 3, 1939, in the United States District Court for the Southern District of New York on the One Hundred Fiftieth Anniversary of Its Organization (Boston: Merrymount Press, 1939), 10; also cited in H. Paul Burak, History of the United States District Court for the Southern District of New York (New York: Federal Bar Association of New York, New Jersey, and Connecticut, 1967), 4. See also Georgina Betts Wells, Life and Career of Samuel Rossiter Betts (New York: Maurice Sloog, 1934), 25. 4. Wells, Samuel Rossiter Betts, 11–12; and Samuel Rossiter Betts fi le, Archive of Williams College, Williamstown, MA. 5. Joseph G. Rayback, “A Myth Re-examined: Martin Van Buren’s Role in the Presidential Election of 1816,” Proceedings of the American Philosophical Society 124, no. 2 (April 1980): 110–11, 116–17. 6. Burak, District Court for the Southern District of New York, 1–3. 7. David W. Robertson, Admiralty and Federalism (Mineola, NY: Foundation Press, 1970), 18–27. 8. Robert G. Albion, Square Riggers on Schedule: The New York Sailing Packets to England, France, and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938), app. I; and Jeffrey B. Morris, Federal Justice in the Second Circuit: A History of the United States Courts in New York, Connecticut and Vermont, 1787 to 1987 (New York: Second Circuit Historical Committee, 1987), 51. 9. On the growing importance of New York as a port, see Robert G. Albion, The Rise of the Port of New York, 1815–1860 (1939; repr., Devon, UK: David & Charles, 1970); and Rohit Aggarwalla, “Seat of Empire: New York, Philadelphia, and the Emergence of an American Metropolis, 1776–1837” (PhD diss., Columbia University, 2002). 10. US Constitution, art. III, § 2. 11. See Erastus C. Benedict, The American Admiralty, Its Jurisdiction and Practice: With Practical Forms and Directions (New York: Banks, Gould, 1850), §§ 360–96. 12. Frank L. Maraist and Thomas C. Galligan Jr., Admiralty in a Nutshell, 4th ed. (St. Paul: West Group, 2001), 1; and Benedict, American Admiralty, §§ 46, 51. 13. Grant Gilmore and Charles L. Black Jr., The Law of Admiralty, 2nd ed. (Mineola, NY: Foundation Press, 1974), §§ 1.2–1.4. For an exhaustive history of surviving medieval documents in maritime law, see Traver Twiss, ed., Monumenta Juridica: The Black Book of the Admiralty, vol. 1 (London: Longman, 1871), xx–cxl. 14. Robertson, Admiralty and Federalism, 37–60. 15. A series of articles by George F. Steckley explore the nitty-gritty of Admiralty

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proceedings during the seventeenth century, which set the terms for much of the practice in the American setting. See Steckley, “Merchants and the Admiralty Court during the English Revolution,” American Journal of Legal History 22, no. 2 (April 1978): 137–75; “Litigious Mariners: Wage Cases in the Seventeenth-Century Admiralty Court,” Historical Journal 42, no. 2 (June 1999): 315–45; and “Bottomry Bonds in the Seventeenth-Century Admiralty Court,” American Journal of Legal History 45, no. 3 (July 2001): 256–77. 16. Henry Campbell Black, Black’s Law Dictionary, 6th ed. (St. Paul: West, 1990), sv “maritime.” 17. Black, Black’s Law Dictionary, sv “admiralty.” Although, in modern usage, Black’s draws little distinction between the defi nitions of “maritime” and “admiralty,” historians and legal scholars see this subtlety as historically important. Benedict, American Admiralty, § 189. 18. Benedict, American Admiralty, §§ 74–110. 19. In admiralty practice, liens taken by owners or by the captain on behalf of the vessel are technically enforceable against the actual hull (literally, the “bottom”) of the ship. This not only provides the creditor with a means of enforcing his or her bond (the ship cannot move without its hull), but also means that the creditor bears the risk in the event of a loss at sea. If the hull is not recoverable, the bond is forfeit. Black, Black’s Law Dictionary, 186. 20. Eduardo C. Robreno, “Learning to Do Justice: An Essay on the Development of the Lower Federal Courts in the Early Years of the Republic,” Rutgers Law Journal 29 (1998): 67, supra 8, 68. For a discussion of the distinct practices in the various polities within the empire, see Benedict, American Admiralty, §§ 114–17. 21. Benedict, American Admiralty, § 118; and Bernard Schwartz, Main Currents in American Legal Thought (Durham, NC: Carolina Academic Press, 1993), 12. 22. Benedict, American Admiralty, § 118. For the text of the specific commissions, see Benedict, American Admiralty, §§ 121–60. 23. Ibid., § 163. 24. Of course, the press-gangs that forced seamen into the Royal Navy were the most palpable and hated manifestation of state power throughout the maritime communities of the Anglo-Atlantic. See Nicholas Rogers, The Press Gang: Naval Impressment and Its Opponents in Georgian Britain (New York: Continuum, 2007); Denver Brunsman, “Men of War: British Sailors and the Impressment Paradox,” Journal of Early Modern History 14 (Spring 2010): 9–44; and Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America,” William and Mary Quarterly, 3rd ser., 25 (July 1968): 371–407. For Canadian resistance to the press-gang, see Keith Mercer, “Northern Exposure: Resistance to Naval Impressment in British North America, 1775–1815,” Canadian Historical Review 91 (June 2010): 199–232. For an old, but still instructive, view of the press-gang’s origins and operations, see, John R. Hutchinson, The Press-Gang Afloat and Ashore (London: Eveligh Nash, 1913). 25. Benedict, American Admiralty, §§ 118, 165. 26. Legal Papers of John Adams, vol. 2, edited by L. Kinvin Wroth and Hiller B. Zobel (Cambridge, MA: Athenaeum Press, 1965), 202, cited in Schwartz, American Legal Thought, 14. See also David S. Lovejoy, “Rights Imply Equality: The Case against

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Admiralty Jurisdiction in America, 1764–1776,” William and Mary Quarterly, 3rd ser., 16, no. 4 (October 1959): 459–84. 27. Schwartz, American Legal Thought, 200. 28. Richard B. Morris, Government and Labor in Early America (1946; repr., New York: Harper & Row, 1965), 228. Page reference is to the reprint edition. 29. The fi rst reference to an admiralty court in Massachusetts dates earlier, from 1666, but was likely a regular court sitting “in admiralty” for a specific case rather than a new, ongoing structure. See John Noble, “A Few Notes on Admiralty Jurisdiction in the Colony and in the Province of the Massachusetts Bay,” Publications of the Colonial Society of Massachusetts 7 (1906): 150–54. Not all colonies, however, sought to expand their own control over maritime matters. By contrast, neighboring Connecticut took a very limited view of its own admiralty authority, not even granting its courts jurisdiction over basic wage cases, a mainstay of admiralty in the British tradition. See William R. Casto, “The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates,” American Journal of Legal History 37, no. 2 (April 1993): 127. 30. Prize courts dealt with ships captured by war vessels and licensed privateers. After the ratification of the Constitution, prize cases came under the authority of the federal district courts. Black, Black’s Law Dictionary, 1200. For a fuller exploration of the law of prizes and privateers, see Donald A. Petrie, The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail (Annapolis, MD: Naval Institute Press, 1999). 31. Robertson, Admiralty and Federalism, 1. 32. Casto, “Origins of Federal Admiralty Jurisdiction,” 128–29. 33. Articles of Confederation, art. IX; and Casto, “Origins of Federal Admiralty Jurisdiction,” supra 59, p. 128. 34. Steven L. Snell, Courts of Admiralty and the Common Law: Origins of the American Experiment in Concurrent Jurisdiction (Durham, NC: Carolina Academic Press, 2007), 211–32. 35. Maraist and Galligan, Admiralty in a Nutshell, 2. 36. Snell, Courts of Admiralty, 376. 37. Ibid., 378. 38. Ibid., 2–3. 39. Robertson, Admiralty and Federalism, 1–2; See also, Frederick Bausman, “Admiralty and Maritime Jurisdiction,” 36 American Law Review, 182–183 (1902). Robertson in particular argues persuasively that earlier scholars, following on the work of Judge Putnam, have misread the Constitutional Conventioneers’ as more ambivalent about federalizing admiralty matters than they actually were. 40. Publius (Alexander Hamilton), The Federalist 80 (1788). 41. David R. Owen and Michael C. Tolley, Courts of Admiralty in Colonial America: The Maryland Experience, 1634–1776 (Durham, NC: Carolina Academic Press, 1995), 226. 42. Snell, Courts of Admiralty, ix. On the impact of the Constitution on maritime jurisdiction more broadly, see Snell, Courts of Admiralty, 232–59. 43. An Act to Establish the Judicial Courts of the United States, September 24, 1789 (1 Stat. 73).

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44. Publius (Hamilton), Federalist 80. 45. Richard B. Morris, Government and Labor in Early America (New York: Harper, 1946), 225–61. David W. Robertson sees colonial admiralty in a somewhat more positive light, noting that colonial vice-admiralty courts were “regarded as dispensers of reasonably efficient justice.” Robertson, Admiralty and Federalism, 93. 46. US Constitution, art. III, § 2; Story, Commentaries on the Constitution, § 1666; and Robertson, Admiralty and Federalism, 6. 47. Act to Establish the Judicial Courts of the United States, chap. 20, § 9. The full text reads: And be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fi ne not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be infl icted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.

48. Ibid. 49. Robertson, Admiralty and Federalism, 18–21; Lawrence M. Friedman, History of American Law, 2nd ed. (New York: Simon and Schuster, 1985), 258–60; and Snell, Courts of Admiralty, 312–20. 50. Snell, Courts of Admiralty, 198, supra 258. 51. Robertson, Admiralty and Federalism, 105. 52. Robreno, “Learning to Do Justice,” 555–56. 53. Robertson, Admiralty and Federalism, 3; and Robreno “Learning to Do Justice,” 560. See also Publius (James Madison), The Federalist 44 (1787); and Publius (Alexander Hamilton), The Federalist 78 (1788). 54. G. Edward White, History of the Supreme Court of the United States, vols. 3–4,

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The Marshall Court and Cultural Change, 1815–1835 (New York: Macmillan, 1988), 427–28. 55. The fi rst that attempted to compile all major federal decisions was The United States Digest. Total coverage was not achieved, however, until West Company began production of Century Digest after the Civil War. Indeed, even the Supreme Court did not require written reporting of its decisions until 1834. See Edwin C. Surrency, A History of American Law Publishing (New York: Oceana, 1990), 34, 61. 56. Surrency, History of American Law Publishing, 61. 57. Richard W. Peters, Admiralty Decisions in the United States District Court of Pennsylvania (Philadelphia, 1807); and Surrency, History of American Law Publishing, 67. 58. On the “treatise tradition” in American legal publishing, see Surrency, History of American Law Publishing, 29; and Ann Fidler, “‘Till You Understand Them in Their Principal Features’: Observations on Form and Function in Nineteenth-Century American Law Books,” Papers of the Bibliographical Society of America 92 (December 1998): 437–39. 59. Sprague (1793–1880) served as district judge for the District of Massachusetts from 1841 to 1865. Story (1779–1845), about whom far too much has been written to survey here, served as associate justice of the US Supreme Court from 1811 to 1845. 60. Sean Patrick Adams, “The Tao of John Quincy Adams,” Common-Place 9, no. 1 (October 2008). 61. The Osprey, U.S.D.C. D. Mass., 1854; and Story, Commentaries, 245–57. 62. F. E. Parker, preface to Decisions of Hon. Peleg Sprague, in Admiralty and Maritime Causes, in the District Court of the United States for the District of Massachusetts, 1841–1861 (Philadelphia: T. & J. Johnson, 1861), iii. 63. Snell, Courts of Admiralty, 385–88. 64. Samuel Rossiter Betts, A Summary of Practice in Instance, Revenue and Prize Causes: In the Admiralty Courts of the United States, for the Southern District of New-York; and Also on Appeal to the Supreme Court: Together with the Rules of the District Court (New York: Halsted and Voorhies, 1838); and Peleg Sprague, Decisions of Hon. Peleg Sprague in Admiralty and Maritime Cases, vol. 1 (Philadelphia: T. & J. Johnson, 1861). Erastus C. Benedict dedicated to Betts his treatise American Admiralty. 65. Charles Abbott, A Treatise on the Law Relative to Merchant Ships and Seamen, 3rd American ed., ed. Joseph Story (Exeter, NH: George Larson, 1822). 66. White, History of the Supreme Court, 429. 67. DeLovio v. Boit, 7 F. Cas. 418 (C.C.D. Mass., 1815). 68. Letter from Joseph Story to Henry Wheaton, September 5, 1815, W. Story, The Life and Letters of Joseph Story (1851), 1:266, cited in White, History of the Supreme Court, 431. For a detailed account of the facts and issues surrounding DeLovio, see White, History of the Supreme Court, 428–44. 69. The Supreme Court fi nally explicitly upheld and endorsed DeLovio in Insurance Co. v. Dunham, 78 U.S. (11 Wall.) (1871). See also White, History of the Supreme Court, 488 supra 80. 70. Story, a pragmatist, was not universally consistent in his arguments for nationalizing oversight of inland waterways, insisting on “concurrent” rather than exclu-

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sively federal jurisdiction. Friedman, American Law, 259. As late as 1829, he was hostile to the theory of applying federal jurisdiction to an event taking place in Boston Harbor. See United States v. Grush, 26 Fed. Cas. 48, No. 15,268 (C.C.D. Mass., 1829); and “Late and Important Decisions,” U.S. Law Intelligencer and Review (1829): 214–15. 71. Benedict, American Admiralty, § 225. 72. Cited in Robertson, Admiralty and Federalism, 32. 73. On Story as a Whig partisan, see Carl B. Swisher, The History of the Supreme Court, vol. 5, The Taney Period, 1836–64 (New York: Macmillan, 1974), 43. On Story as a “commercial moralist” in league with other northeastern reformist Whigs and activists, see Edward J. Balleisen, “Bankruptcy and the Entrepreneurial Ethos,” Australian Journal of Legal History 8 (2004): 67. 74. White, History of the Supreme Court, 483. 75. Ibid. 76. T. Baty, “Judge Betts and Prize Law,” Transactions of the Grotius Society, vol. 11, Problems of Peace and War, Papers Read before the Society in the Year 1925 (London: Sweet and Maxwell, 1925), 21. 77. Friedman, American Law, 259. 78. Ramsay v. Allegre, U.S. Sup. Ct. (25 U.S. 611) (1827). 79. See also Ira Brunson, “Admiralty Jurisdiction,” Report of Proceedings of the Washington State Bar Association for 1911 (Olympia, WA: Effenbee Publishing Company, 1911), 126. On Justice Johnson as a resister of the expansion of federal power, see A. J. Levin, “Mr. Justice William Johnson, Jurist in Limine: Dissent and the Judging Faculty,” Michigan Law Review 47, no. 4 (February 1949): 477–536. 80. Snell, Courts of Admiralty, 390. 81. An Act for the Punishment of Certain Crimes against the United States, 1st Cong., 2d Sess., Ch. 9, April 30, 1790, §§ 8–13, 16; and An Act for the Government and Regulation of Seamen in the Merchant Service, 1st Cong., 2d Sess., Ch. 29, July 20, 1790, §§ 1–2. 82. “Registration” was (and remains) required for vessels primarily engaged in international commerce, while coasting and inland vessels, as well as fishing vessels, are “enrolled.” Henry Campbell Black, Black’s Law Dictionary, 6th ed. (St. Paul: West, 1990), 530, 1284. 83. For most mercantile journeys, wages were calculated monthly; fishermen and workers in whale fisheries were paid in shares of the catch; men serving on privateers were paid shares of the value of prizes captured. 84. An Act for the Government and Regulation of Seamen, §§ 1–2. 85. The need for signed articles on international journeys descended from British law of the 1720s that insisted, “Every seaman who ships himself on board a merchantship for any voyage shall be obliged to sign an agreement for wages within three days.” Significantly, however, nothing was said as to the specifics of the agreement except that it must include pay and terms of service. 2 Geo. II., c. 36, § 2. This regulation was extended to include coastal as well as international trade by 31 Geo. III., c. 39. David Steel, The Ship-Master’s Assistant and Owner’s Manual (London: David Steel, 1799), 161. 86. William Sullivan, Sea Life, 31. 87. Francis G. Clarke, The Seaman’s Manual (Portland, ME: 1830), 253.

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88. Gladding v. Constant (1844), Fed. Cas. No. 5,468 [1 Spr. 73] (American Digest, 2571). 89. William Sullivan, Sea Life, 33. Ten dollars was paid to the federal government as a fi ne, with the other ten going to the seaman as “damages,” provided he brought suit. An Act for the Government and Regulation of Seamen, § 1. 90. The courts consistently ruled in favor of an “implied contract” to return to the port of origin. Thompson v. Faussat (1815), Fed. Cas. No. 13,935 [Pet. C.C. 182] (American Digest, 2571); and Bibbins v. Brookfield (1844), Fed. Cas. No. 1,384 (American Digest, 2569). The courts walked a less consistent path, however, in more general cases. Courts frequently ruled in favor of some kind of implied contract, as in the case of Jansen v. The Theodor Heinrich (1849), Fed. Cas. No. 7,215 [Crabbe, 226]. But in other instances, missing or faulty articles meant that no contract existed, or that any party could terminate employment at any time without forfeiture or penalty in other cases. United States v. White et al., D.C.S.D.N.Y. (1848), LEXIS 14, 28 F. Cas. 586, 6 N.Y. Leg. Obs. 239. 91. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1979), 160–210. 92. I. R. Butts, Laws of the Sea—The Seaman’s Assistant: Coaster’s and Fisherman’s Guide, and Master’s and Mate’s Manual (Boston: I. R. Butts, 1849), 7–11, 18; and Joseph Blunt, The Shipmaster’s Assistant and Commercial Digest, 9th ed. (New York: E. & G. W. Blunt, 1857), 34. 93. Cadmus v. Matthews, Fed. Cas. No. 2,282 [2 Paine 229], reversing the Cadmus (1830) Fed. Cas. No. 2,280 [Blatchf. & H. 139] (American Digest, 2569). 94. Horwitz, Transformation of American Law, 160–210; Lawrence M. Friedman, Contract Law in America: A Social and Economic Case Study (Madison: University of Wisconsin, 1965); and William J. Novick, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996). 95. Recent scholarship, however, has begun to take more seriously the importance of governmental regulation in the early Republic, especially regarding maritime matters. See Novick, People’s Welfare; cf. Gautham Rao, “Sailor’s Health and National Wealth,” Common-Place 9, no. 1 (October 2008); and John Odin Jensen, “Bulwarks against a Human Tide: Governments, Mariners, and the Rise of General Marine Hospitals on the Midwestern Maritime Frontier, 1800–1900” (PhD diss., Carnegie-Mellon University, 2000). 96. An Act in Addition to the Act, Entitled, “An Act for the Punishment of Certain Crimes against the United States,” 5th Cong., 2d Sess., Ch. 74 (July 14, 1798). 97. An Act in Addition to the Act, Entitled “An Act for the Punishment of Certain Crimes against the United States,” and to Repeal the Acts Therein Mentioned, 15th Cong., 1st Sess., Ch. 88, April 20, 1818; An Act to Protect the Commerce of the United States, and Punish the Crime of Piracy, 15th Cong., 2nd Sess., Ch. 77, March 3, 1819; An Act to Continue in Force “An Act to Protect the Commerce of the United States, and Punish the Crime of Piracy” and to Make Further Provisions for Punishing the Crime of Piracy, 16th Cong., 1st Sess., Ch. 113, May 15, 1820; An Act in Addition to “An Act to Continue in Force ‘An Act to Protect the Commerce of the United States, and Punish the Crime of Piracy’ and to Make Further Provisions for Punishing the Crime of

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Piracy,” 17th Cong., 2nd Sess., Ch. 6, January 30, 1823; and An Act More Effectually to Provide for the Punishment of Certain Crimes against the United States, and for Other Purposes, 18th Cong., 2nd Sess., Ch. 65, March 3, 1825. 98. Friedman, American Law, 281. 99. An Act More Effectually to Provide for the Punishment of Certain Crimes against the United States, and for Other Purposes. 100. An Act in Amendment of the Acts for the Punishment of Offences against the United States, 23rd Cong., 2d Sess. Ch. 40 (March 3, 1835). 101. Friedman, American Law, 286–87, 290. 102. “Important Decision,” Niles’ Weekly Register, August 15, 1835, 432. See also “Important to Merchants,” which reproduced the text of the act, Niles’ Weekly Register, March 28, 1835, 66. 103. James E. Valle, Rocks and Shoals: Naval Discipline in the Age of Fighting Sail (Annapolis, MD: US Naval Institute Press, 1996); Myra C. Glenn, Campaigns against Corporal Punishment: Prisoners, Sailors, Women, and Children in Antebellum America (Albany: State University of New York Press, 1984); Myra C. Glenn, “The Naval Reform Campaign against Flogging: A Case Study in Changing Attitudes toward Corporal Punishment, 1830–1850,” American Quarterly 25 (Autumn 1983): 408–25; and Leon Fink, Sweatshops at Sea (Chapel Hill: University of North Carolina Press, 2011), 45–50. 104. An Act to Provide for Recording the Conveyances of Vessels, and for Other Purposes, 31st Cong., 1st Sess., Ch. 27, July 29, 1850. 105. An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One, 31st Cong., 1st Sess., Ch. 80, September 28, 1850. 106. Charge to grand jury, Circuit Court, D. Rhode Island (November 15, 1853), 30 F. Cas. 981, 1853 U.S. App. LEXIS 583, 1 Curt. 590. 107. One important exception is Joseph B. Leake, “Punishment of Crime in the National Courts,” Western Jurist 42 (May 1883): 201–12. 108. See Robreno, “Learning to Do Justice.” 109. Linda Gordon, Pitied but Not Entitled (Cambridge, MA: Harvard University Press, 1994); and Glenn, Campaigns against Corporal Punishment. 110. For information on the complexities of British admiralty courts, see Leslie Gardner, The British Admiralty (Annapolis, MD: US Naval Institute, 1968); and Robertson, Admiralty and Federalism, 1–64. For earlier English precedents, see Steckley, “Merchants and the Admiralty Court,” “Litigious Mariners,” and “Bottomry Bonds.” For the colonial case, see Owen and Tolley, Courts of Admiralty, 25–43, 201–34. For the development of American maritime law more generally, see Daniel Vickers with Vince Walsh, Young Men and the Sea: Yankee Seafarers in the Age of Sail (New Haven, CT: Yale University Press, 2005), 214–51. 111. For more on the place of the US Southern District of New York and its jurists, and, in particular, Samuel Betts, in the development of admiralty law, see Jeffrey B. Morris, Federal Justice in the Second Circuit, 63–65; and Wells, Samuel Rossiter Betts, 27, 35. 112. Snell, Courts of Admiralty, 392.

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Ch a pter 3 1. Joseph Blunt, The Shipmaster’s Assistant and Commercial Digest, 9th ed. (New York: E. & G. W. Blunt, 1857), 14. 2. Pirate Captain, The Simpsons, “The Mansion Family,” episode 1112 BABF08, original airdate January 23, 2000. 3. On issues of corporal punishment at sea, see Myra C. Glenn, Campaigns against Corporal Punishment: Prisoners, Sailors, Women, and Children in Antebellum America (Albany: State University of New York Press, 1984); and Myra C. Glenn, “The Naval Reform Campaign against Flogging: A Case Study in Changing Attitudes toward Corporal Punishment, 1830–1850,” American Quarterly 35 (Autumn 1983): 408–25. 4. Cited in Aertsen v. Ship Aurora and James Brady, Dist. Ct. S.C. (1800), Bee, 161. 5. Richard B. Morris, Government and Labor in Early America (New York: Harper, 1946), 227. 6. Daniel Vickers with Vince Walsh, Young Men and the Sea (New Haven, CT: Yale University Press, 2005), 214. 7. An act for the Punishment of Certain Crimes against the United States, 1st Cong., 2nd Sess., Ch. 9, April 30, 1790, §§ 8–13, 16; and An Act for the Government and Regulation of Seamen in the Merchant Service, 1st Cong., 2nd Sess., Ch. 29, July 20, 1790. A separate act organized the fisheries two years later: An Act Concerning Certain Fisheries of the United States, and for the Regulation and Government of Fishermen Employed Therein, 2nd Cong., 1st Sess., Ch. 6, February 16, 1792. 8. Ellison et al. v. The Bellona, D.C.D.S.C. (1798), Case No. 4,406, U.S. Dist. LEXIS 14, 8 F. Cas. 556, 1 Bee 106. 9. An Act Supplementary to the “Act Concerning Consuls and Vice-Consuls, and for the Further Protection of American Seamen,” 7th Cong., 2nd Sess., Ch. 9, February 28, 1803. 10. An Act in Amendment of the Acts for the Punishment of Offences against the United States, 23rd Cong., 2nd Sess., Ch. 40, March 3, 1835. 11. George Ticknor Curtis, A Treatise on the Rights and Duties of Merchant Seamen, According to the General Maritime Law, and the Statutes of the United States (Boston: Charles Little and James Brown, 1841), 89. 12. Ibid., 88. 13. An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One, 31st Cong., 1st Sess., Ch. 80, September 28, 1850. 14. Charge to grand jury, Circuit Court, D. Rhode Island (November 15, 1853), 30 F. Cas. 981, 1853 U.S. App. LEXIS 583, 1 Curt. 590. 15. United States v. Charles Jenkins et al., C.C.S.D.N.Y. (1838), Draft of Special Verdict. 16. Charge to grand jury, Circuit Court, D. Rhode Island (November 15, 1853), 30 F. Cas. 981, 1853 U.S. App. LEXIS 583, 1 Curt. 590. 17. An Act to Promote the Welfare of American Seamen in the Merchant Marine of the United States; to Abolish Arrest and Imprisonment as a Penalty for Desertion

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and to Secure the Abrogation of Treaty Provisions in Relation Thereto; and to Promote Safety at Sea, 63rd Cong., 3rd Sess., Ch. 153, March 4, 1915. 18. An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One. 19. Frederic Sawyer, The Merchant’s and Shipmaster’s Guide, in Relation to Rights, Duties, and Liabilities (Boston: Benjamin Loring, 1840), v. 20. Hawser Martingale, Tales of the Ocean (Boston: William J. Reynolds, 1845), 141; and Arthur H. Clark, The Clipper Ship Era: An Epitome of Famous American and British Clipper Ships, Their Owners, Builders, Commanders, and Crews, 1843–1869 (New York: G. P. Putnam’s Sons, 1910), 127–29. 21. Clark, Clipper Ship Era, 128. 22. William Sullivan, Sea Life; or, What May or May Not Be Done and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates and Seamen (Boston: James B. Dow, 1837), 54. 23. Herman Melville, White Jacket (New York, 1850); Herman Melville, “Benito Cereno,” in The Piazza Tales (New York, 1856); and Herman Melville, Billy Budd, Sailor (London: Constable and Company, 1924). 24. Last v. Porter et al. (1847), Dana Case File 730, box 1, deposition of Charles James, second mate (AAS/Dana). 25. United States v. Charles B. Brookman, C.C.S.D.N.Y. (1859), Criminal Case 1–195, deposition of Brister Lewis. 26. United States v. Justus Marshall, D.C.S.D.N.Y. (1849), Criminal Case 1–189, deposition of James Jones. 27. United States v. Henry Schriever and William Harding, C.C.S.D.N.Y. (1842), deposition of Charles Stoddard. 28. United States v. Ferdinand Crocker, C.C.S.D.N.Y. (1858), Criminal Case 1–147/8, complaint. 29. See, for example, United States v. Thomas Lewis, C.C.S.D.N.Y. (1806). 30. Herman Melville, Redburn (New York, 1849; repr., with an introduction by Harold Beaver, New York: Penguin Books, 1986), 74. Page reference is to the reprint edition. 31. Herman Melville, Moby-Dick; or, the Whale (New York, 1851). For accounts of real-life Ahabs, see Margaret Creighton, Dog Watch and Liberty Days: Seafaring Life in the Nineteenth Century (Salem, MA: Peabody Museum of Salem, 1982), 39; and Joan Druett, In the Wake of Madness: The Murderous Voyage of the Whaleship Sharon (New York: Algonquin Books, 2003). 32. Hunt v. Colburn et al., District Court, D. Massachusetts (1853), Case No. 6,886, U.S. Dist. LEXIS 40, 12 F. Cas. 905, 1 Sprague 215. 33. John Jarvis v. Captain and Mate of the Ship Clairborne, Dist. Ct. S.C. (1808), Bee 248. 34. I. R. Butts, Laws of the Sea—The Seaman’s Assistant: Coaster’s and Fisherman’s Guide, and Master’s and Mate’s Manual (Boston: I. R. Butts, 1849), 56. 35. Vickers, Young Men and the Sea, 233. 36. Of the thirty-one cases, there were five convictions, fourteen acquittals, and twelve nolle prosequi. These figures may be skewed by the large number of cases in

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which the defendant’s rank is indeterminate. Of thirty-eight such cases, twenty-five resulted in conviction. If it may be assumed that a number of these cases involved officers, 16 percent would seem low; however, for cases in which the defendant can be identified as a regular seaman or cook, the jury convicted in twenty-seven of thirty-four cases. 37. Again, the numbers for officers are likely to be artificially low. In fi fty-one cases, mostly for an assault of one kind or another (the most frequent charge brought against officers) for which the status of the defendant(s) cannot be determined, the court recorded twenty-seven convictions, with many of the convicted being in all likelihood officers. Additionally, a large number of criminal cases against officers were brought concurrently with and in support of civil charges. Often, if the civil proceeding either was settled or was decided favorably for the seaman, the criminal charges would be dropped. 38. United States v. Hunt, C.C.D. Mass. (1841), Case No. 15,423, 25 F. Cas. 432, 1841 U.S. App. LEXIS 324. Additionally, in Gifford v. Kollock, a suit to recover wages from a whaling journey, Judge Ashur Ware noted that, while in earlier times officers’ punishment in the merchant service may have had a military character, that usage had fallen out of practice by the time of the US service. Gifford v. Kollock, District Court, D. Massachusetts (1856), Case No. 5,409, U.S. Dist. LEXIS 111, 10 F. Cas. 341, 3 Ware 45, 19 Law Rep. 21. 39. United States v. Simmons (1849), Dana Case File 887 (AAS/Dana). 40. Whatley v. Hotchkiss (1854), Dana Case File 1365, folder 1, box 9, complaint. 41. United States v. Collins, C.C. D. Rhode Island (1854), Case No. 14,836, 25 F. Cas. 545, 1845 U.S. App. LEXIS 518, 2 Curt. 194. 42. Cruel and unusual punishment was criminalized in 1835. As well as can be determined from the records, the New York federal courts (district and circuit) heard eight such cases before 1839, twenty-eight during the period 1840–1844, thirty from 1845 to 1849, forty-one from 1850 to 1854, and thirty-one from 1855 to 1861. 43. Charge to grand jury, Circuit Court, D. Rhode Island (November 15, 1853), 30 F. Cas. 981, 1853 U.S. App. LEXIS 583, 1 Curt. 590. 44. United States v. Paul Oliver, C.C.S.D.N.Y. (1835). 45. Fuller v. Colby, 1846, Fed. Cas. No. 5,149 [3 Woodb. & M. 1]. 46. Richard Henry Dana Jr., The Seaman’s Friend: Containing a Treatise on Practical Seamanship, with Plates; a Dictionary of Sea Terms; Customs and Usages of the Merchant Service; Laws Relating to the Practical Duties of Master and Mariner (Boston: Thomas Groom, 1851; repr., Delmar, NY: Scholars’ Facsimiles, 1979), 193. Page reference is to the reprint edition. 47. Charles Abbott, A Treatise of the Law Relative to Merchant Ships and Seamen, Enlarged with an Addenda Relative to Some Laws and Customs of the United States (Philadelphia, 1802), 109. See also Vickers, Young Men and the Sea, 224–25. 48. Turner’s Case, Fed. Cas. No. 9,523 [1 Ware (83) 77]. Carleton v. Davis repeats the “reasonable” standard in 1844. Carleton v. Davis (1844) Fed. Cas. No. 2,408 [2 Ware (Dav 221) 225]. 49. Blunt, Shipmaster’s Assistant, 14. 50. Dana, Two Years, 471.

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51. Charge to grand jury, Circuit Court, D. Rhode Island (November 15, 1853), 30 F. Cas. 981, 1853 U.S. App. LEXIS 583, 1 Curt. 590. 52. Ibid. 53. According to the Oxford English Dictionary, the English term master, connoting a man of leadership and authority, dates from at least 1000 CE. By 1330, the term shows up specifically describing a ship’s master or “master mariner.” By contrast, the civil use of captain to connote “master of a merchant vessel” is not found before the early years of the eighteenth century. Oxford English Dictionary, sv master, captain. 54. Francis G. Clarke, The Seaman’s Manual, Containing a Variety of Matters Useful to the Navigator (Portland, ME, 1830), 253; and Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1979), 186–88. 55. Charles Abbott, Treatise of the Law Relative to Merchant Ships and Seamen (Newburyport, MA: Edward Little, 1810), §§ 163–64. 56. United States v. Hunt, C.C.D. Mass. (1841), Case No. 15,423, 25 F. Cas. 432, 1841 U.S. App. LEXIS 324. 57. James Fenimore Cooper, ed., Proceedings of the Navy Court Martial in the Case of Alexander Slidell Mackenzie, a Commander in the Navy of the United States, &c., Including the Charges and Specifications of Charges, Preferred against Him by the Secretary of the Navy, to Which Is Annexed an Elaborate Review, by James Fenimore Cooper (New York: Henry G. Langley, 1844); and Buckner F. Melton Jr., A Hanging Offense: The Strange Affair of the Warship Somers (New York: Free Press, 2003). 58. United States v. Lunt (1855), Dana Case File 1510, box 12, undated clipping from the Boston Daily Advertiser (AAS/Dana); 1 Sprague 314. 59. William Sullivan, Sea Life, 50. 60. Christopher L. Tomlins, Labor, Law, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 223–31, 260–61. 61. United States v. Taylor, 28 F. Cas. 31, 32 (C.C.S. Mass., 1837) (No. 16,442). See also L. Steven Cox, “Sources of American Maritime Criminal Law,” Tulane Maritime Law Journal 26 (2001–2): 167. 62. Sawyer, Merchant’s and Shipmaster’s Guide, 143. 63. It should be noted that, while the captain could be charged with criminal wrongdoing and/or a tort from his actions, in the case of injury or wrongly withheld wages, it was not upon the captain, nor even the owners, but the ship itself that liability rested. See Tomlins, Labor, Law, and Ideology, 338 supra 19. 64. Elwell v. Martin et al., District Court, D. Maine (1824), Case No. 4,425, 1824 U.S. Dist. LEXIS 2, 8 F. Cas. 584, 1 Ware 45. 65. Sawyer, Merchant’s and Shipmaster’s Guide, 83–141 (masters), 145–75 (seamen), 141–44 (mates). 66. William Sullivan, Sea Life, 59. 67. United States v. Miller (1852), Dana Case File 1172, box 6, trial notes (AAS/Dana). 68. Humpreys v. Brig America, Dist. Ct. S.C. (1807), Bee, 248. 69. William Sullivan, Sea Life, 59. 70. See Humpreys v. Brig America, Dist. Ct. SC (1807), Bee, 248.

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71. United States v. Hunt, C.C.D. Mass. (1841), Case No. 15,423, 25 F. Cas. 432, 1841 U.S. App. LEXIS 324, opinion of Justice Story. 72. Sawyer, Merchant’s and Shipmaster’s Guide, 89–90. 73. United States v. Henry Sackett, C.C.S.D.N.Y. (1831), deposition of John Farland. 74. United States v. William Read et al., C.C.S.D.N.Y. (1840), deposition of Robert Richards. 75. United States v. John Proctor, C.C.S.D.N.Y. (1835), affidavit of John Proctor. 76. The Spirit of the Times, vol. 21, March 1, 1851, 20. 77. Sawyer, Merchant’s and Shipmaster’s Guide, 89–90. 78. William Sullivan, Sea Life, 47–56. 79. Dana, Seaman’s Friend, 131. 80. In this respect, shipboard discipline bears a similarity to slavery, in which the owner usually delegated the direct application of punishment to an overseer in order to insulate himself and his authority from the violence. 81. United States v. Stephen Murphy, C.C.S.D.N.Y. (1857). 82. Last v. Porter et al. (1847), Dana Case File 730, box 1, deposition of Charles James, second mate (AAS/Dana). 83. United States v. Tooke (1851), Dana Case File 1056, box 5, trial notes (AAS/Dana). 84. See Robert G. Albion, Square Riggers on Schedule: The New York Sailing Packets to England, France, and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938), 151–53. 85. In the district court, there were at least sixteen cases that charged a lesser officer. The circuit court heard at least forty-eight cases charging a mate or boatswain. Due to the incompleteness of the records, however, numbers for the district court are likely to undercount officers who stood as criminal defendants, given that indictments did not necessarily identify the rank of the accused. 86. Heavy mooring rope or chain. 87. United States v. John Hargraves, C.C.S.D.N.Y. (1833), deposition of John Hargraves. 88. Ibid.

Ch a pter 4 1. Charles Dickens, “We Mariners of England,” Household Words: A Weekly Journal, February 26, 1853. 2. United States v. Michael Duggan, C.C.S.D.N.Y. (1843), deposition of John Gilbert. 3. Dana Case File 1365, Ryder v. Carl (1854). 4. Matthew Raffety, “Recent Currents in the Nineteenth-Century American Maritime History,” History Compass 6, no. 2 (2008): 617–18. 5. John A. Butler, Sailing on Friday: The Perilous Voyage of America’s Merchant Marine (Washington, DC: Brassey’s, 1997), 41. 6. An Act for the Punishment of Certain Crimes against the United States, 1st Cong., 2nd Sess., Ch. 9, April 30, 1790, §§ 8–13, 16; An Act for the Government and Regulation of Seamen in the Merchant Service, 1st Cong., 2nd Sess., Ch. 29, July 20,

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1790; An Act Supplementary to the “Act Concerning Consuls and Vice-Consuls, and for the Further Protection of American Seamen,” 7th Cong., 2nd Sess., Ch. 9, February 28, 1803; An Act for the Regulation of Seamen on Board the Public and Private Vessels of the United States, 12th Cong., 2nd Sess., Ch. 41, March 3, 1813; An Act in Amendment of the Acts for the Punishment of Offences against the United States, 23rd Cong., 2nd Sess., Ch. 40, March 3, 1835; An Act in Addition to the Several Acts Regulating the Shipment and Discharge of Seamen, and the Duties of Consuls, 26th Cong., 1st Sess., Ch. 48, July 20, 1840; and An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One, 31st Cong., 1st Sess., Ch. 80, September 28, 1850. 7. See chap. 3. 8. David W. Robertson, Admiralty and Federalism: History and Analysis of Federal-State Relations in the Maritime Law of the United States (Mineola, NY: Foundation Press, 1970), 80. 9. United States v. James Jones et al., C.C.S.D.N.Y. (1849). 10. United States v. William Merchant et al., C.C.S.D.N.Y. (1844), deposition of George A. Francis. 11. United States v. Henry Moad, C.C.S.D.N.Y. (1832), deposition of Henry Moad. 12. Charles S. Kennedy, The American Consul: A History of the United States Consular Service, 1776–1914 (Westport, CT: Greenwood Press, 1990), 150; and Ernest S. Dodge, New England and the South Seas (Cambridge, MA: Harvard University Press, 1965), 47. 13. Kennedy, American Consul, 150. 14. Edgerly v. Hollis, Dana Case File 743, box 1 (1846), affidavit of Samuel Edgerly (AAS/Dana). 15. Charles Wilkes, Narrative of the United States Exploring Expedition during the Years 1838, 1839, 1840, 1841, 1842 (New York: George Putnam, 1851), 5:498; and Dodge, New England, 47. 16. Richard Henry Dana Jr., Two Years before the Mast (Boston, 1840; repr., with an introduction by Thomas Phillbrick, New York: Penguin Books, 1986), 348–51. Page citations are to the reprint edition. 17. United States v. James Clements, D.C.S.D.N.Y., Criminal Case #1–63 (1853), deposition of Solomon S. Riggs. 18. United States v. Lemuel Harvey, C.C.S.D.N.Y. (1835), statement of Captain Lemuel Harvey, taken on board the brig Falmouth. 19. Dana, Two Years, 153, 156. 20. Herman Melville, Redburn (New York, 1849; repr., with an introduction by Harold Beaver, New York: Penguin Books, 1986), 85. Page citation is to the reprint edition. 21. George Davis, Recollections of a Sea-Wanderer’s Life (New York: A. H. Kellogg, 1887), 89. 22. United States v. William Norman et al., C.C.S.D.N.Y. (1839), affidavit of Paul H. Latham supporting warrant. 23. United States v. William Peake et al., C.C.S.D.N.Y. (1836), deposition of James Lockman. 24. Ibid., deposition of Hampton Stuart.

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25. In a survey of work stoppages reported in the logbooks of whaleships, B. C. Busch fi nds that 13.4 percent of such incidents owed their origins to problems with quantity or quality of food, 8.7 percent to problems with unusual or excessive work, 7.4 percent to problems with the conditions of the vessel (including unseaworthiness, poor conditions of the forecastle, and insufficient provisions), and 15.2 percent to disagreements over the type or severity of punishment. The federal courts in New York heard relatively few cases from whaleships, however, and Busch’s numbers, though instructive, cannot be taken as wholly representative of New York’s packet and general shipping trade. Additionally, Busch’s data cover a longer time frame, from 1820 to 1919. Briton Cooper Busch, Whaling Will Never Do for Me (Lexington: University of Kentucky Press, 1994), 54 (table 4). 26. United States v. Patrick Cosgrove, C.C.S.D.N.Y. (1836); and New York Morning Herald, November 18, 1837. 27. United States v. Edward Hughes et al., C.C.S.D.N.Y. (1837), petition of the prisoners to the court. 28. New York Times, July 10, 1854. 29. Philip M. Hamer, “Great Britain, the United States, and the Negro Seamen Acts, 1822–1848,” Journal of Southern History 1, no. 1 (February 1935): 3–28; and Philip M. Hamer, “British Consuls and the Negro Seamen Acts, 1850–1860,” Journal of Southern History 1, no. 2 (May 1935): 138–68. 30. Acts, State of Louisiana, 1842, No. 123, § 1. 31. The Cynosure, D.C. Mass. (July 1844) (1 Sprague 88–89). 32. Joan Druett, Rough Medicine: Surgeons at Sea in the Age of Sail (New York: Routledge, 2000), 45. 33. United States v. Asa Smith et al., C.C.S.D.N.Y. (1835), deposition of Asa Smith. 34. Ibid. 35. Ibid. 36. Ibid. 37. Ibid. 38. Ibid. 39. United States v. Borden et al., D.C. D. Mass. (1857), 24 F. Cas. 120. 40. United States v. Thomas Litton, C.C.S.D.N.Y. (1846); United States v. Andrew Scott, C.C.S.D.N.Y. (1846); and United States v. Frederick Smith, C.C.S.D.N.Y. (1846), application for discontinuance of proceedings by parties and their counsel. 41. Busch gives a detailed account of the “Honolulu riots.” Busch, Whaling Will Never Do, 173–93. 42. Robert G. Albion, Square Riggers on Schedule: The New York Sailing Packets to England, France, and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938), 149. 43. An Act in Addition to the Several Acts Regulating the Shipment and Discharge of Seamen, and the Duties of Consuls, 26th Cong., 1st Sess., Ch. 48, July 20, 1840, § 16. See also Richard Henry Dana Jr., The Seaman’s Friend: Containing a Treatise on Practical Seamanship, with Plates; A Dictionary of Sea Terms; Customs and Usages of the Merchant Service; Laws Relating to the Practical Duties of Master and Mariner

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(Boston: Thomas Groom, 1851; repr., Delmar, NY: Scholars’ Facsimiles, 1979), 195. Page citation is to the reprint edition. 44. United States v. Edward Grigg, C.C.S.D.N.Y. (1841). 45. United States v. Lemuel Harvey, C.C.S.D.N.Y. (1835). 46. Ibid., statement of Captain Lemuel Harvey, taken on board the brig Falmouth. 47. William Sullivan, Sea Life; or, What May or May Not Be Done and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates and Seamen (Boston: James B. Dow, 1837), 73. 48. United States v. Sharp et al., C.C.S.D. Penn. (1815), Case No. 16,264, 27 F. Cas. 1041, 1815 U.S. App. LEXIS 231, 1 Pet C.C. 118. 49. George Comstock’s account appears in full as an appendix to Thomas Heffernan’s Mutiny on the Globe: The Fatal Voyage (New York: W. W. Norton, 2002), 219–36. 50. William Lay and Cyrus M. Hussey, A Narrative of the Mutiny on Board the Ship Globe, of Nantucket, in the Pacific Ocean, Jan., 1824 (New London, CT: William Lay and C. M. Hussey, 1828). The Globe incident remains one of the most famous mutinies on an American vessel, and has been written about at length. More recent accounts include Heffernan, Mutiny on the Globe; James A. Michener and A. Grove Day, “The Globe Mutineers,” in Rascals in Paradise (London: Secker & Warburg, 1957); Edwin P. Hoyt, The Mutiny on the Globe (New York: Random House, 1975); and Gregory Gibson, Demon of the Waters: The True Story of the Mutiny on the Whaleship Globe (Boston: Little, Brown, 2002). 51. United States v. Lemuel Harvey, C.C.S.D.N.Y. (1835). 52. James Bowes, Trial of Jones, Hazelton, Anderson, and Trevaskiss, alias Johnson, for Piracy and Murder on Board Barque Saladin, with the Written Confessions of the Prisoners (1844; repr., Halifax, NS: Petheric Press, 1967), 23. Page citations are to the reprint edition. 53. Ibid., 27. 54. Ibid., 11. 55. Ibid., 12. 56. Ibid., 20–21. 57. United States v. Edward Huges et al., C.C.S.D.N.Y. (1837). 58. United States v. Cromwell Wyman et al., C.C.S.D.N.Y. (1840). 59. Ibid. 60. United States v. James Jones et al., C.C.S.D.N.Y. (1849), deposition of William Robertson. 61. United States v. Nye et al. (1855), 27 F. Cas. 210, 18555 U.S. App. LEXIS 882, 2 Curt. 225. 62. United States v. Patrick Cosgrove (1835), deposition of Joseph Johnson, August 8, 1835. 63. United States v. Bordan et al. (1857), LEXIS 31, 24 F. Cas. 1202, 1 Sprague 374, 21 Law Rep. 100. 64. United States v. Cromwell Wyman et al., C.C.S.D.N.Y. (1840), deposition of Captain John Worth. 65. Busch, Whaling Will Never Do, 58 (table 5), 61.

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66. United States v. James Jones et al., C.C.S.D.N.Y. (1849), deposition of Robert McNally. 67. United States v. William Merchant et al., C.C.S.D.N.Y. (1844), deposition of Captain Russell H. Port. 68. United States v. Thomas Halloby et al., C.C.S.D.N.Y. (1838), deposition of Joseph Windust. 69. Ibid., deposition of First Mate Joel Ashbury. 70. Sir James Marriott, cited in the opinion of Judge Thomas Bee, Ellison et al. v. The Bellona, D.C.D.S.C. (1798), Case No. 4,406, U.S. Dist. LEXIS 14, 8 F. Cas. 556, 1 Bee 106. 71. Samuels, one of the most noted packet captains of his day, and by his own admission a harsh disciplinarian, wrote a memoir at the end of his long career, which was published posthumously. Although his tales become somewhat grandiose in the retelling, his remains one of the best fi rsthand accounts of the packet ships in particular. Samuel Samuels and Ralph D. Paine, From the Forecastle to the Cabin (Boston: Charles E. Lauiat, 1924). See also Albion, Square Riggers, 150.

Pa rt II 1. United States v. Edward Greenwood, C.C.S.D.N.Y. (1848). 2. United States v. David Pratt and Joseph Cently, C.C.S.D.N.Y. (1836), deposition of Thomas Johnson. 3. See, for example, Michael D. Pierson, Free Hearts and Free Homes: Gender and Antislavery American Politics (Chapel Hill: University of North Carolina Press, 2003); Mark E. Kann, A Republic of Men: The American Founders, Gendered Language, and Patriarchal Politics (New York: New York University Press, 1998); Noel Ignatiev, How the Irish Became White (New York: Routledge, 1996); Stephen Hahn, The Roots of Southern Populism: Yeoman Farmers and the Transformation of the Georgia Upcountry, 1850–1890 (New York: Oxford University Press, 1983); Scott A. Sandage, “Deadbeats, Drunkards, and Dreamers: A Cultural History of Failure in America, 1819–1893” (PhD diss., Rutgers University, 1995); Elliott J. Gorn, “‘Gouge and Bite, Pull Hair and Scratch’: The Social Significance of Fighting in the Southern Backcountry,” American Historical Review 90, no. 1 (February 1985): 18–43; and Elliott J. Gorn, The Manly Art (Ithaca, NY: Cornell University Press, 1986). 4. See especially Myra C. Glenn, “Troubled Manhood in the Early Republic: The Life and Autobiography of Sailor Horace Lane,” Journal of the Early Republic 26 (Spring 2006): 59–93; Margaret Creighton, Rites and Passages: The Experience of American Whaling, 1830–1870 (New York: Cambridge University Press, 1995); and Margaret Creighton and Lisa Norling, eds., Iron Men, Wooden Women: Gender and Seafaring in the Atlantic World, 1700–1920 (Baltimore: Johns Hopkins University Press, 1996).

Ch a pter 5 1. Frederic Sawyer, Merchant’s and Shipmaster’s Guide (Boston: Benjamin Loring, 1840), 145.

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2. Charles Dickens, “We Mariners of England,” Household Words: A Weekly Journal, February 26, 1853. 3. United States v. William Read et al., C.C.S.D.N.Y. (1840), deposition of Robert Richards. 4. Ibid. 5. John Truair, A Call from the Ocean; or, An Appeal to the Patriot and the Christian, in Behalf of Seamen (New York: American Seamen’s Friend Society, 1826), 3. 6. Jesse Lemisch, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America,” William and Mary Quarterly, 3rd ser., 25, no. 3 (July 1968): 372. 7. The notion of the performed self as a category of historical analysis owes much to Judith Butler’s work on gender, especially Gender Trouble (1990; repr., New York: Routledge, 2006), and the anthropologist Clifford Geertz’s work on culture as text and performance. See especially Geertz, The Interpretation of Cultures (New York: Basic Books, 1977); and Mark A. Schneider, “Culture-as-Text in the Work of Clifford Geertz,” Theory and Society 16, no. 6 (November 1987): 809–39. I also rely heavily on Rhys Isaac’s concept of “historical dramaturgy” as a means of examining the process of cultural performance, developed in Isaac, The Transformation of Virginia (Chapel Hill: University of North Carolina Press, 1982), 3, 324, 337, 350–56. 8. Sawyer, Merchant’s and Shipmaster’s Guide, 145. Marcus Rediker echoes Sawyer, noting that much of what made seamen’s dress and language so distinctive evolved out of the specifics of living and working at sea. Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates and the Anglo-American Maritime World, 1700–1750 (New York: Cambridge University Press, 1989), 11. See also Margaret Creighton, Rites and Passages: The Experience of American Whaling, 1830–1870 (New York: Cambridge University Press, 1995), 116–38. 9. Creighton, Rites and Passages, 162–89. See also Myra C. Glenn, “Troubled Manhood in the Early Republic: The Life and Autobiography of Sailor Horace Lane,” Journal of the Early Republic 26 (Spring 2006): 59–93. For the development of the new antebellum northern middle-class defi nition of “manliness” as involving restraint and temperance, rather than mastery of the outer world, see Michael D. Pierson, Free Hearts and Free Homes: Gender and Antislavery American Politics (Chapel Hill: University of North Carolina Press, 2003). For a useful distinction between “manliness” and “masculine” in a later era, see Gail Bederman, Manliness and Civilization: A Cultural History of Gender and Race in the United States, 1880–1917 (Chicago: University of Chicago Press, 1996), 5–30. 10. Mark E. Kann, A Republic of Men: The American Founders, Gendered Language, and Patriarchal Politics (New York: New York University Press, 1998), 15. 11. Ibid. See also Jack P. Greene, Pursuits of Happiness (Chapel Hill: University of North Carolina Press, 1988), 196–97, regarding the links between economic security and personal “independence.” For a specific example of one seafarer’s struggle with the confl ict between his manhood and his economic failure, see Glenn, “Troubled Manhood.” 12. Sean Wilentz, Chants Democratic (New York: Oxford University Press, 1984); and Jonathan A. Glickstein, Concepts of Free Labor in Antebellum America (New Haven, CT: Yale University Press), 1991.

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13. United States v. James Jones et al., C.C.S.D.N.Y. (1849), deposition of William Robertson, April 12, 1849. 14. “The Language of the Sea,” Atlantic Monthly 2, no. 12, October 1858, 578–84. 15. W. Jeffrey Bolster, “The Changing Nature of Marine Insurrection,” Log of Mystic Seaport 31, no. 1 (1979): 18. 16. Arthur H. Clark, The Clipper Ship Era: An Epitome of Famous American and British Clipper Ships, Their Owners, Builders, Commanders, and Crews, 1843–1869 (New York: G. P. Putnam’s Sons, 1910), 128. 17. Hawser Martingale, Tales of the Ocean (Boston: William J. Reynolds, 1845), 141. 18. See Noel Ignatiev, How the Irish Became White (New York: Routledge, 1996); Michael D. Pierson, “‘Guard the Fountain Well’: Antebellum New York Democrats and the Defense of Patriarchy,” Gender and History 7 (April 1995): 25–40; and Stephen Hahn, The Roots of Southern Populism: Yeoman Farmers and the Transformation of the Georgia Upcountry, 1850–1890 (New York: Oxford University Press, 1983). 19. Elliot J. Gorn, The Manly Art: Bare-Knuckle Prize Fighting in America (Ithaca, NY: Cornell University Press, 1986), 36–38; Elliot J. Gorn, “‘Gouge and Bite, Pull Hair and Scratch’: The Social Significance of Fighting in the Southern Backcountry,” American Historical Review 90 (February 1983): 15–43; and Amy Greenberg, Manifest Manhood: American Empire (New York: Cambridge University Press, 2005), 18–53. 20. Stanley M. Elkins, Slavery: A Problem in American Institutional and Intellectual Life, 3rd ed. (Chicago: University of Chicago Press, 1976). 21. Elbridge S. Brooks, The Story of the American Sailor in Active Service on Merchant Vessel and in Man-of-War (Boston: D. Lothrop, 1888), 189–90. 22. Richard Henry Dana Jr., The Seaman’s Friend: A Treatise on Practical Seamanship, 14th ed. (1841; repr., Boston: Groom, 1867; repr., Toronto: Dover Publications, 1997), 131. Page citation is to the 1997 edition. 23. At least twenty-five cases are immediately identifiable as having taken place in “New York Bay,” “New York Harbor,” or “At Quarantine” (located in lower New York Bay). Because not all cases are complete, and even many of those that are do not explicitly identify a location, the actual tally is probably considerably higher. 24. United States v. Stephen Murphy, C.C.S.D.N.Y. (1857). 25. Creighton, Rites and Passages, 131. For an examination of illness as a contested category in industrial slavery, see Charles B. Dew, Bond of Iron: Master and Slave at Buffalo Forge (New York: W. W. Norton, 1994), 171–86. 26. United States v. Richard Rogers et al., C.C.S.D.N.Y. (1848), deposition of George S. Peabody. 27. Ibid. 28. Ibid. 29. Ibid. 30. New York Herald, vol. 7, February 25, 1841. See also United States v. Charles Smith, C.C.S.D.N.Y. (1841). At least the purported victim did manage to get extra monies, for, though Smith was acquitted in the criminal proceeding, he settled out of court in a related civil case. 31. Sheffield v. Page, Same v. Foster (1855), D.C. D. Mass., LEXIS 118, 21 F. Cas. 1228, 1 Sprague 285, 18 Law Rep. 99; and United States v. White et al., D.C.S.D.N.Y. (1848),

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LEXIS 14, 28 F. Cas. 584, 6 N.Y. Leg. Obs. 230. Interestingly, this is substantially different from the situations on ships seized by privateers. In the case of licensed privateers, a contract coerced from the captain of a seized vessel was enforceable in court. See Donald A. Petrie, The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail (Annapolis, MD: Naval Institute Press, 1999). 32. United States v. George M. McCerren, C.C.S.D.N.Y. (1842), deposition of James McCabe. 33. Ibid. 34. Robert G. Albion, Square Riggers on Schedule: The New York Sailing Packets to England, France, and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938), 274, app. I. 35. John A. Butler, Sailing on Friday: The Perilous Voyage of America’s Merchant Marine (Washington, DC: Brassey’s, 1997), 51. 36. Alex Roland, W. Jeffrey Bolster, and Alexander Keyssar, The Way of the Ship: America’s Maritime History Reenvisioned, 1600–2000 (Hoboken, NJ: John Wiley and Sons, 2007), 156. For one of many contemporary accounts, see Thomas V. Sullivan, Scarcity of Seamen (Boston: J. Howe, 1853). Marcus Rediker sees a similar phenomenon during shortages of seafarers in the eighteenth century. Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700–1750 (Cambridge: Cambridge University Press, 1987), 82. 37. See editorial, New York Times, June 9, 1854; Thomas V. Sullivan, Scarcity of Seamen; and William Sullivan, Sea Life; or, What May or May Not Be Done and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates and Seamen (Boston: James B. Dow, 1837), introduction and conclusion. 38. Brooks, Story of the American Sailor, 190. 39. Although the origins of the term forecastle law itself are hard to pin down, it was in use at least by the 1850s and 1860s as a term common enough to appear in popular magazines for a nonmaritime audience like Ballou’s and Atlantic Monthly. See “The Language of the Sea,” Atlantic Monthly 2, no. 12, October 1858, 578–84; and W. H. Macy, “My First ‘Liberty Day’ in Valparaiso,” Ballou’s Monthly Magazine 30, no. 4, October 1869, 356. 40. United States v. John Paddy et al., C.C.S.D.N.Y. (1841), deposition of Reuben H. Paine. 41. Ibid. 42. Richard Henry Dana Jr., Two Years before the Mast (Boston, 1840; repr., with an introduction by Thomas Phillbrick, New York: Penguin Books, 1986), 94. Page citations are to the reprint edition. 43. United States v. William Read et al., C.C.S.D.N.Y. (1840), deposition of Alexander Morrison. 44. Paul A. Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania Press, 2004), 215. 45. Dana, Two Years, 392. 46. United States v. Thomas Hallaby et al., C.C.S.D.N.Y. (1839), deposition of Joseph Windust. 47. Records of the Public Health Service, National Archives and Records Admin-

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istration, New York Branch, record group 90; Hospital Book, October 14, 1801–May 14, 1828, Consular Records, London, record group 84, vol. 031, National Archives and Records Administration II. 48. Ernest S. Dodge, New England and the South Seas (Cambridge, MA: Harvard University Press, 1965), 45. 49. Gilje, Liberty on the Waterfront, 216. 50. United States v. Joel Bibber, C.C.S.D.N.Y. (n.d. [before 1853]), affidavit of Captain William Adams. 51. John Williams, Francis Frederick, John P. Rog, and Nils Peterson, Lives and Confessions of John Williams, Francis Frederick, John P. Rog, and Peter Peterson, Who Were Tried at the United States Circuit Court in Boston, for Murder & Piracy (Boston: J. T. Buckingham, 1819), 16. 52. United States v. William Merchant et al., C.C.S.D.N.Y. (1844). 53. United States v. Seneca Higgins, C.C.S.D.N.Y. (1840), deposition of Henry Robinson. 54. Robert G. Albion, Square Riggers on Schedule: The New York Sailing Packets to England, France and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938), 151. 55. United States v. Edward Nesbitt, C.C.S.D.N.Y. (1845), deposition of Mark Thompson. 56. United States v. George B. Austin, D.C.S.D.N.Y, Criminal Case #1–624 (1856), deposition of James Godfrey. 57. Ibid., deposition of John Morgan. 58. William Sullivan, Sea Life, 50. 59. New York Morning Herald, April 22, 1837. 60. Versions of this term seem to appear fi rst around the 1850s in maritime sources, and then in popular sources by the latter years of that decade. The Sailor’s Magazine mentions “the law of the forecastle” in 1855 (from a source dated the prior year), and “forecastle law” is the title of a cheeky piece about a conniving “Yankey Captain” in The Nautical Magazine and Naval Chronicle by 1858, the same year “the law of the forecastle” fi rst appears in Atlantic Monthly. “Letter from a Sea Captain,” Sailor’s Magazine 27, no. 6, February 1855, 166; and “The Fore-Sheet or Forecastle Law,” Nautical Magazine and Naval Chronicle 27, no. 5, May 1858, 258–60. 61. For a discussion of the increasing social devaluation of manual labor on land, see Glickstein, Concepts of Free Labor, 23–52. 62. Under heavy public pressure, flogging in the US Navy was eliminated in 1850, with the merchant marine being included in a naval appropriations bill almost as an afterthought. An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One, 31st Cong., 1st Sess., Ch. 80, September 28, 1850. 63. For a discussion of the increasing pressure against flogging in the navy, see Myra C. Glenn, “The Naval Reform Campaign against Flogging: A Case Study in Changing Attitudes toward Corporal Punishment, 1830–1850,” American Quarterly 35 (1983): 408–25. See also James E. Valle, Rocks and Shoals: Naval Discipline in the Age of Fighting Sail (Annapolis, MD: Naval Institute Press, 1980), 61.

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64. An Act to Promote the Welfare of American Seamen in the Merchant Marine of the United States; to Abolish Arrest and Imprisonment as a Penalty for Desertion and to Secure the Abrogation of Treaty Provisions in Relation Thereto; and to Promote Safety at Sea, 63rd Cong., 3rd Sess., Ch. 153, March 4, 1915; and W. Jeffrey Bolster, “The Changing Nature of Marine Insurrection,” Log of Mystic Seaport 31, no. 1 (1979). 65. United States v. James Jones et al., C.C.S.D.N.Y (1849), deposition of George Gilman. 66. United States v. Stephen Murphy, C.C.S.D.N.Y. (1857), deposition of Robert Weillienes. 67. United States v. John Paddy et al., C.C.S.D.N.Y. (1841), deposition of Reuben H. Paine. 68. Ibid., deposition of John Norway. 69. William Sullivan, Sea Life, 75. 70. United States v. William Read et al., C.C.S.D.N.Y. (1840), deposition of Alexander Morrison. 71. Last v. Porter et al. (1847), Dana Case File 730, box 1, deposition of Charles James, second mate (AAS/Dana). 72. Ibid., deposition of Robert Richards. 73. Ibid. 74. The lash’s permanence on whalers was due in part to the fact that whaleship masters had fewer alternative disciplinary options, since men paid on share could not as easily have their pay docked (particularly on an unsuccessful journey, where no one would be paid much). Briton Cooper Busch, Whaling Will Never Do for Me (Lexington: University of Kentucky Press, 1994), 30. 75. Logbook of the ship Coral, New Bedford, April 22, 1844, Kendall Whaling Museum 17:2, cited in Busch, Whaling Will Never Do, 56. 76. United States v. Richard Rogers et al., C.C.S.D.N.Y. (1848).

Ch a pter 6 1. Jacob A. Hazen, Five Years before the Mast; or, Life in the Forecastle aboard of a Whaler and Man-of-War (Philadelphia: Willis P. Hazard, 1853), 162. 2. William Sullivan, Sea Life: or, What May or May Not Be Done, and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates, and Seamen (Boston: James B. Down, 1837), 50. 3. United States v. Patterson Morrison, C.C.S.D.N.Y. (1837), deposition of George Williams. 4. Ibid., deposition of John Berry. 5. Ibid., deposition of Andrew Spence. 6. Ibid., deposition of George Williams. 7. Ibid., deposition of John Berry. 8. Ibid., deposition of George Williams. 9. In many such cases, criminal charges were dropped in favor of a civil settlement and a cash award to the victim; often such cases simply disappear from the record with no explanation of the outcome.

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10. An Act in Amendment of the Acts for the Punishment of Offences against the United States, 23rd Cong., 2nd Sess., Ch. 40 (March 3, 1835); An Act Regulating the Shipment and Discharge of Seamen, and the Duties of Consuls, 26th Cong., 1st Sess., Ch. 48, July 20, 1840; and An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One, 31st Cong., 1st Sess., Ch. 80, September 28, 1850. 11. Paul A. Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania Press, 2004), 75. 12. See chap. 5. 13. Though the captain on larger vessels insulated himself from much of the strenuous labor of shipboard life, even on the most elite of ships, the earthiness of the profession undermined the society air of the role. Indeed, because elite passengers expected to be attended to by the captain as the ship’s chief gentleman, the role often proved a waste of time for captains who needed to keep an eye on the men. Ralph D. Paine, introduction to Samuel Samuels, From the Forecastle to the Cabin, Being the Memoirs of Capt. Samuel Samuels of the Famous Packet Ship: “Dreadnought” (Boston: Charles E. Lauriat, 1924), xii. 14. See Elliot J. Gorn, “‘Gouge and Bite, Pull Hair and Scratch’: The Social Significance of Fighting in the Southern Backcountry,” American Historical Review 90 (February 1983): 15–43. 15. Michael D. Pierson, Free Hearts and Free Homes: Gender and Antislavery American Politics (Chapel Hill: University of North Carolina Press, 2003), 16–18. On the culture of elite honor in late colonial America, see Timothy H. Breen, “Horses and Gentlemen: The Cultural Significance of Gambling among the Gentry of Virginia,” William and Mary Quarterly 34 (April 1977): 329–47; and, more generally, T. H. Breen, Tobacco Culture: The Mentality of the Great Tidewater Planters on the Eve of the Revolution (Princeton, NJ: Princeton University Press, 1985), 105–8. See also Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South, 25th anniversary ed. (New York: Oxford University Press, 2007). 16. Daniel Vickers with Vince Walsh, Young Men and the Sea (New Haven, CT: Yale University Press, 2005), 214–47. Additionally, part of the conceptual background for this discussion of the bifurcated defi nition of “mastery” stems from Vickers’s remarks at the roundtable discussion entitled “Maritime Mastery and Mobility,” Society for Historians of the Early American Republic’s Annual Meeting, Montreal, Quebec, 2006. 17. Pierson, Free Hearts and Free Homes, 2–12, 19–24. As scholars of gender have noted, the labors and rhythms of seafaring life forced alterations in traditional terrene gender roles. Not only did seafarers need skills in traditionally “womanly” crafts like needlework, but wives of seafarers had to take on traditionally “male” duties during their husbands’ frequently long absences. Lisa Norling, “Ahab’s Wife: Women and the American Whaling Industry, 1820–1870,” in Iron Men, Wooden Women: Gender and Seafaring in the Atlantic World, 1700–1920, ed. Margaret Creighton and Lisa Norling (Baltimore: Johns Hopkins University Press, 1996). 18. Just as regular seafarers’ gender roles were complicated by tasks and duties assigned to women ashore, the captain’s habitual and extended absence meant that

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many of the fi nancial and logistical tasks normally deemed men’s work were taken on by women. In the whale fishery, when voyages grew even longer as prey became scarce in fi rst the Atlantic and then the Pacific and Indian Oceans during the fi rst half of the nineteenth century, the practice of bringing captains’ wives along became common. Their presence served both personal and reformist functions, helping the captains’ family avoid tensions within Victorian gender roles while at the same time serving as a means of modeling respectable, middle-class gendered morality to the whalemen. Thus, some of the changes in marital roles that followed the Second Great Awakening necessarily occurred earlier in some seafaring families. Norling, “Ahab’s Wife”; Lisa Norling, Captain Ahab Had a Wife: New England Women and the Whalefi shery, 1720–1870 (Chapel Hill: University of North Carolina Press, 2000); Cynthia A. Kierner, The Contrast: Manners, Morals, and Authority in the Early American Republic (New York: New York University Press, 2007), 6–7; Ruth H. Bloch, “The Gendered Meanings of Virtue in Revolutionary America,” Signs 13 (1987): 37–58; Anya Jabour, Marriage in the Early Republic: Elizabeth and William Wirt and the Companionate Ideal (Baltimore: Johns Hopkins University Press, 1998); and Rosemarie Zagarri, “Morals, Manners, and the Republican Mother,” American Quarterly 44 (1992): 192–215. 19. Robert G. Albion, Square Riggers on Schedule: The New York Sailing Packets to England, France and the Cotton Ports (Princeton, NJ: Princeton University Press, 1938), 153. 20. Richard Henry Dana Jr., The Seaman’s Friend: Containing a Treatise on Practical Seamanship, with Plates; A Dictionary of Sea Terms; Customs and Usages of the Merchant Service; Laws Relating to the Practical Duties of Master and Mariner (Boston: Thomas Groom, 1851; repr., Delmar, NY: Scholars’ Facsimiles, 1979), 187–88. Page citations are to the reprint edition. 21. Fuller v. Colby, C.C. D. Mass. (1846), Case No. 5,149, 9 F. Cas. 980, 1846 U.S. App. LEXIS 566, 9 Law Rep. 397. A similar description of the master’s authority appears in United States v. Alden, 24 F. Cas. 768, C.C. D. Mass. (1844) (N. 14,427). See also L. Steven Cox, “Sources of American Maritime Criminal Law,” Tulane Maritime Law Journal 26 (2001–2): 170. 22. John Jarvis v. Captain and Mate of the Ship Clairborne, Dist. Ct. S.C. (1808), Bee 248. 23. Alfred M. Lorrain, The Square-Rigged Cruiser; or, Lorrain’s Sea-Sermons (Cincinnati: Swormstedt & Poe, 1854). 24. Christopher L. Tomlins, Labor, Law, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 231. 25. David Steel, The Ship-Master’s Assistant and Owner’s Manual (London: David Steel, 1799), 38. 26. Boston Society for the Moral and Religious Improvement of Seamen, An Address to the Masters of Vessels on the Object of the Boston Society for the Moral and Religious Improvement of Seamen (Boston, 1812). See also Roald Kvernadal, Seamen’s Missions: Their Origin and Early Growth (Pasadena, CA: William Carey Library, 1986), 408–9. 27. Charles J. Jones, From the Forecastle to the Pulpit: Fifty Years among the Sailors, Containing an Account of a Wonderful Revival upon the Sea (New York: N. Tibbals & Sons, 1884), 35.

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28. William Sullivan, Sea Life, 53. 29. Firm of purpose. 30. Jay v. Almay, C.C. D. Mass. (1846), Case No. 7,236, 13 F. Cas. 387, 1846 U.S. App. LEXIS 528. 31. Dana, Seaman’s Friend, 138. 32. James Bowes, Trial of Jones, Hazelton, Anderson, and Trevaskiss, alias Johnson, for Piracy and Murder On Board Barque Saladin, with the Written Confessions of the Prisoners (1844; repr., Halifax, NS: Petheric Press, 1967), 65. Page citations are to the reprint edition. 33. Ibid., 27. 34. Greg Dening, Mr. Bligh’s Bad Language: Passion, Power and Theatre on the Bounty (New York: Cambridge University Press, 1992), 55–87. 35. William Sullivan, Sea Life, 52. 36. Ibid., 50. 37. I. R. Butts, Laws of the Sea—The Seaman’s Assistant: Coaster’s and Fisherman’s Guide, and Master’s and Mate’s Manual (Boston: I. R. Butts, 1849), 43. 38. Thomas V. Sullivan, Scarcity of Seamen (Boston: J. Howe, 1853), 32. 39. Case of Captain Abraham Wendell, Jr., of the Brig Kremlin of New York Arising from an Outrage Perpetrated by Him upon William Bell, First Officer of Said Brig, in the Port of Havana, July 1838 (s.n., 1840), 6. 40. Ibid., 6. 41. Ibid., 14–15. 42. Ibid., 15. 43. Nicholas Trist, Reply of Nicholas P. Trist, Consul at Havana to the Resolutions at a Meeting in Boston on the Subject of the Cases of Captain Abraham Wendell, Jr., and the Crew of the Ship William Engs (s.n., 1840), 19. 44. Herman Melville, Moby-Dick; or, the Whale (New York, 1851). 45. William Sullivan, Sea Life, 56. 46. Margaret S. Creighton, “The Private Life of Jack Tar: Sailors at Sea in the Nineteenth Century” (PhD diss., Boston University, 1985), 105–6. 47. Albion, Square Riggers, 106. 48. Ibid., 153. 49. Ralph D. Paine, introduction to Samuels, From the Forecastle to the Cabin, xii. 50. New York Morning Herald, November 18, 1837. 51. United States v. Wiltberger, C.C.E.D. Penn. (1819), 28 F. Cas. 272. 52. George Ticknor Curtis, A Treatise on the Rights and Duties of Merchant Seamen, According to the General Maritime Law, and the Statutes of the United States (Boston: Charles Little and James Brown, 1841), 125; and United States v. Thompson, C.C. (1832), 1 Sumn. 168, Fed. Cas. No. 16,492. 53. Butler v. McClellan et al., D.C. D. Maine (1831), Case No. 2,242, 1831 U.S. Dist. LEXIS 12, 4 F. Cas. 905, 1 Ware 220. 54. United States v. Addison Grinnell, C.C.S.D.N.Y. (1858), Criminal Case #1–133a, deposition of William Stratton. 55. Wyatt-Brown, Southern Honor, xvi–xviii. 56. United States v. John Hargraves, C.C.S.D.N.Y. (1833), deposition of Aliza Anne

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Smith. For a similar case, see United States v. George M. McCerren, C.C.S.D.N.Y. (1842), affidavit of William Poole. 57. On the Herald, see Frank Luther Mott, American Journalism: A History, 1690– 1960, 3rd ed. (New York: Macmillan, 1962), 228–83; and James L. Crouthamel, Bennett’s New York Herald and the Rise of the Popular Press (Syracuse, NY: Syracuse University Press, 1989). On the penny press and salacious reporting, see Gerald J. Baldasty, The Commercialization of News in the Nineteenth Century (Madison: University of Wisconsin Press, 1992); Frederic Hudson, Journalism in the United States from 1690–1872 (New York: Harper and Brothers, 1873), 262–88, 306–28, 416–27; John William Tebbel, The Compact History of the American Newspaper (Boston: E. P. Dutton, 1967); and Patricia Cline Cohen, Timothy J. Gilfoyle, and Helen Lefkowitz Horowitz in association with the American Antiquarian Society, The Flash Press: Sporting Male Weeklies in 1840s New York (Chicago: University of Chicago Press, 2008). 58. North American Review 57, no. 120 (July 1843): supra note, 226. See also Mott, American Journalism, 235–38. 59. Richard Henry Dana Jr., Cruelty to Seamen, Being the Case of Nichols and Couch (Berkeley, CA: privately printed, 1937), 6. (Originally published in American Jurist, October 1839.) 60. William Wetmore Story, Life and Letters of Joseph Story (Boston: Little, Brown, 1851), 2:316. See also Kathryn Mudgett, “‘Cruelty to Seamen’: Richard Henry Dana Jr., Justice Story, and the Case of Nichols and Couch,” American Neptune 62, no. 1 (Winter 2002): 51. 61. See Creighton, “Private Life of Jack Tar,” 90–91. 62. United States v. Lemuel Harvey, C.C.S.D.N.Y. (1835), statement of Captain Lemuel Harvey, taken on board the brig Falmouth. 63. Officers cite insolence or sauciness as justification for their punishment of seamen in dozens of cases, including United States v. William Mears et al., C.C.S.D.N.Y. (1834); United States v. Thomas Hallaby et al., C.C.S.D.N.Y. (1839); United States v. Nelson Jones & William West, C.C.S.D.N.Y. (1843); United States v. Nicholas Roberts (1850), Dana Case File 927, box 3, statement of Nicholas Roberts; and United States v. Stephen Murphy, C.C.S.D.N.Y. (1857). 64. Thorne v. White, D.C.D. Penn. (1806), Case No. 13,989, 1806 U.S. Dist. LEXIS 7, 23 F. Cas. 1132, 1 Pet. Adm. 168. 65. Fuller v. Colby et al., C.C.D. Mass. (1846), Case No. 5,149, 9 F. Cas. 980, 1846 U.S. App. LEXIS 566, 9 Law Rep. 397. 66. Joseph Blunt, The Shipmaster’s Assistant and Commercial Digest, 9th ed. (New York: E. & G. W. Blunt, 1857), 44. 67. Fuller v. Colby et al. 68. James E. Valle, Rocks and Shoals: Naval Discipline in the Age of Fighting Sail (Annapolis, MD: Naval Institute Press, 1980), 88–89. 69. In fact, naval officers became so wrapped up in their own code of honor that dueling remained an endemic problem in the navy until midcentury. Over one hundred duels were documented between 1798 and 1843, resulting in more than thirty fatalities. Ibid., 179–80. 70. Ibid., 24.

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71. United States v. William Merchant et al., C.C.S.D.N.Y. (1844), deposition of Captain Russell H. Post. 72. United States v. Wiltberger, C.C.E.D. Penn. (1819), Case No. 16,738, 28 F. Cas. 727, 1819 U.S. App. LEXIS 218; 3 Walsh C.C. 515. 73. United States v. William West, C.C.S.D.N.Y. (1836), deposition of First Mate Thomas D. Winship, June 14, 1836. 74. United States v. Nelson Jones and William West, C.C.S.D.N.Y. (1843), deposition of Captain Francis M. French. 75. An Act in Amendment of the Acts for the Punishment of Offences against the United States, 23rd Cong., 2nd Sess., Ch. 40, March 3, 1835. 76. Curtis, Treatise, 124. 77. New York Morning Herald, April 26, 1837. 78. Ibid. 79. United States v. James Jones et al., C.C.S.D.N.Y. (1849), deposition of Chief Mate Ebenezer Williams. 80. United States v. John Hutchinson, D.C.S.D.N.Y. (1849), Criminal Case #1–132, 133, deposition of George Honary. 81. Ibid. 82. Ibid. 83. Dana, Seaman’s Friend, 136. 84. William Sullivan, Sea Life, 57. 85. Dana, Seaman’s Friend, 145. 86. Monthly Law Review 12 (May 1849): 14. 87. Dana, Seaman’s Friend, 172. 88. Herman Melville, Redburn (New York, 1849; repr., with an introduction by Harold Beaver, New York: Penguin Books, 1986), 86. Page citations are to the reprint edition. 89. Ibid. 90. William Sullivan, Sea Life, 59. 91. United States v. John Hutchinson, D.C.S.D.N.Y. (1849), Criminal Case #1–132, 133, deposition of Joseph Thompson. 92. William Sullivan, Sea Life, 58. 93. Dana, Seaman’s Friend, 199. 94. Ibid., 136. 95. Ibid., 137. 96. Blunt, Shipmaster’s Assistant, 13. 97. United States v. William Merchant et al., C.C.S.D.N.Y. (1844), deposition of Russell H. Post. 98. New York Morning Herald, August 5, 1837. 99. United States v. Asa Smith et al., C.C.S.D.N.Y. (1835), deposition of Asa Smith. 100. Ibid. 101. Last v. Porter et al. (1847), Dana Case File 730, box 1, deposition of Second Mate Charles James. 102. United States v. Stephen Murphy, C.C.S.D.N.Y. (1857), deposition of Captain James E. Cole, December 19, 1857. 103. Ibid.

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104. Ibid. 105. Ibid. 106. Samuel Tully, The Life of Samuel Tully, Who Was Executed at South Boston, Dec. 12, 1812, for Piracy, Written by Himself (Boston: Watson & Bangs, 1812), 24. 107. Dana, Seaman’s Friend, 199. 108. Melville, Redburn, 87. 109. United States v. Noel Brooks, D.C.S.D.N.Y. (1856), Criminal Case #1–667, deposition of Orrin B. Day. 110. Valle, Rocks and Shoals, 18. 111. Dana, Seaman’s Friend, 202. 112. Ibid., 139. 113. United States v. John Philips, D.C.S.D.N.Y. (1849), Criminal File #1–193, deposition of John Quinn. 114. Ibid. 115. Ibid. 116. Jacob Nagle, The Nagle Journal: A Diary of the Life of Jacob Nagle, Sailor, from 1775 to 1841 (New York: Weidenfeld & Nicholson, 1988), 306–7. 117. United States v. William Merchant et al., C.C.S.D.N.Y. (1844).

Ch a pter 7 1. C. Edwards Lester, My Consulship (New York: Cornish, Lamport, 1853), 2:278–79. 2. Morris v. Cornell (1843), U.S. Dist. LEXIS 55, 17 F. Cas. 814, 1 Sprague 62, 6 Law Rep. 304. 3. Nathaniel Hawthorne, Our Old Home, and English Note-Books, vol. 1 (1863; repr., Boston: Houghton Mifflin, 1902), 22. Page reference is to the reprint edition. 4. Emory R. Johnson, “The Early History of the United States Consular Service, 1776–1792,” Political Science Quarterly 13, no. 1 (March 1898): 23. 5. Wilbur J. Carr, “The American Consular Service,” American Journal of International Law 1, no. 4 (October 1907): 891. 6. Part of the lack of scholarship is related to the incomplete indexing of consular records at the National Archives and Records Administration (NARA). Although a project is, at the time of this writing, under way to create better fi nding aids for the consular records, most remain difficult to use. Documents that were forwarded from the consuls to the Department of State are more available as RG 59.2.2 (NARA II), but because many consuls were inconsistent about sending information on, and because much of the day-to-day work of even the most conscientious consuls would never have been included in such dispatches, the basic workings of the consular service remain underexamined. 7. Charles Stuart Kennedy, The American Consul: A History of the United States Consular Service, 1776–1914 (Westport, CT: Greenwood Press, 1990), vii. 8. Ibid., viii. 9. S. Doc., 22nd Cong., 2nd Sess., Doc. 83, March 2, 1833. See also Chester Lloyd Jones, The Consular Service of the United States, Its History and Activities (Philadelphia: University of Pennsylvania Press, 1906), 9–12.

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10. S. Doc., 25th Cong., 2nd Sess., Doc. 467, May 2, 1838. See also H.R. Doc., 28th Cong., 1st Sess., Doc. 166, February 15, 1844. 11. Kennedy, American Consul, 105. 12. Ibid., 88. 13. The federal government refused to pay for their return transport to the United States, but funds were raised within France, and the United States did pick up the check for their journey back from the East to Osage country. Andrew Jackson, The Papers of Andrew Jackson, vol. 7, 1829, ed. Sam B. Smith et al. (Knoxville: University of Tennessee Press, 2007), 511. 14. Kennedy, American Consul, 9; Carr, “American Consular Service,” 893; Chester Lloyd Jones, Consular Service, 2; Johnson, “Early History,” 27–28; and Burt E. Powell, “Jefferson and the Consular Service,” Political Science Quarterly 21, no. 4 (December 1906): 626. Although the ill-fated Palfrey was the fi rst to carry the title of consul, some argue that Benjamin Franklin, Arthur Lee, and Silas Deane, the three “commissioners” appointed to France by the Continental Congress in September 1776 to represent American interests, were in essence if not in name the fi rst US consuls, as “their activity involved the exercise of diplomatic and consular powers.” Johnson, “Early History,” 23. 15. Powell, “Jefferson and the Consular Service,” 626–27; and Johnson, “Early History,” 24–25. 16. Johnson, “Early History,” 28–30; and Chester Lloyd Jones, Consular Service, 1–4. 17. U.S. Const. art. III, § 2. 18. Ibid., art. I, § 8. 19. Carr, “American Consular Service,” 894–95. 20. Powell, “Jefferson and the Consular Service,” 627. 21. Chester Lloyd Jones, Consular Service, 4. 22. Powell, “Jefferson and the Consular Service,” 630. 23. Thomas Jefferson, “Circular to the Consuls and Vice-Consuls of the United States,” August 26, 1790, in Powell, “Jefferson and the Consular Service,” 630–31. 24. The entire uniform is described as follows: Single breast coat of blue cloth, with standing cape or collar, and ten navy buttons in front; one button each side of the cape; four on each cuff; four under each pocket fl ap, and one on each hip and in the folds; two on each side in the centre; and one each side of the same, at the lower extremity of the skirt. The front (from the cape down to the lower extremity of the skirts) cuffs, cape and pocket fl aps to be embroidered in gold, representing a vine composed of olive leaves, and the button holes to be worked with gold thread; the button holes corresponding with the width of the embroidery, which is not to exceed two inches in any part. Vest and small clothes of white, and navy buttons; the former to have ten in front, and four under each pocket-fl ap. With this dress, a cocked hat, small sword and shoes and buckles are to be worn. The hat is to be furnished with gold loop, gold tassels and black cockade, with gold eagle in the centre; added to which, it is shown to be understood that the mountings of the sword and shoe and knee buckles are to be gold; otherwise gilt. (Circular from Secretary of State James

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Monroe to US consuls, August 8, 1815, reprinted in “Washington,” New York Times, June 23, 1853)

25. “Washington,” New York Times, June 23, 1853. See also “Little Known Facts about the Department of State: Diplomatic Couriers, Diplomatic and Consular Uniforms, Burning of Washington,” Department of State website, accessed May 12, 2009, http://www.state.gov/s/d/rm/rls/perfrpt/2002/html/19062.htm. 26. Nathaniel Hawthorne and Sophia Peabody Hawthorne, Passages from the English Notebooks of Nathaniel Hawthorne (Boston: Houghton, Osgood, 1880), 149. On the debate over the importance of clothing to the nation, see Michael Zakim, ReadyMade Democracy: A History of Men’s Dress in the American Republic, 1760–1860 (Chicago: University of Chicago Press, 2006). 27. Thomas Jefferson, “Circular to the Consuls and Vice-Consuls of the United States,” August 26, 1790, in Powell, “Jefferson and the Consular Service,” 630–31. 28. Thomas Jefferson, “Circular to the Consuls and Vice-Consuls of the United States,” May 31, 1791, in Powell, “Jefferson and the Consular Service,” 634–35. 29. New York Times, June 14, 1853. 30. An Act Concerning Consuls and Vice-Consuls, 2nd Cong., 1st Sess., Ch. 24, April 14, 1792. 31. Chester Lloyd Jones, Consular Service, 5. 32. Act Concerning Consuls and Vice-Consuls. 33. RG 84, Consular Posts—London, vol. 498–501. 34. John Mitchell, July 24, 1804, no. 1330, Register of Impressed Seamen, RG 84, Consular Posts—London, vol. 501. 35. Powell, “Jefferson and the Consular Service,” 633. 36. Letter from James Maury, US consul for Liverpool, to Thomas Jefferson, secretary of state, November 21, 1791, NARA II, RG 59, Despatches from US Consuls in Liverpool, 1790–1906, vol. 1. 37. See James Thompson, no. 6880, October 25, 1811, RG 84, Consular Posts— London, vol. 499. 38. Register of Destitute American Seamen, RG 84, Consular Posts—London, vol. 29. 39. Lester, My Consulship, 285. 40. First required by the 1792 act, the ship’s register was a document issued in triplicate, with copies to the master, the Treasury Department, and the customhouse at the vessel’s home US port. The sea letter was an official statement of the vessel’s citizenship, identifying it as a US vessel. Mediterranean passports were the product of negotiations with the “Barbary corsairs,” who required evidence of a ship’s right to pass into the Mediterranean. See Dudley W. Knox, ed., Naval Documents Related to the QuasiWar between the United States and France, 7 vols. (Washington, DC: US Government Printing Office, 1935–38); and Dudley W. Knox, ed., Naval Documents Related to the United States Wars with the Barbary Powers, 6 vols. (Washington, DC: US Government Printing Office, 1939–44). 41. An Act Supplementary to the “Act Concerning Consuls and Vice-Consuls, and

256

notes to chapter 7

for the Further Protection of American Seamen,” 7th Cong., 2nd Sess., Ch. 9, § 2, February 28, 1803. 42. Ibid., § 3. 43. Charles B. Harris II, “The United States Consul’s Role in Civil Matters Concerning Seamen,” Cumberland Law Review 6, no. 3 (Winter 1976): 577. 44. Ibid., 561–62. See also Matthews v. Offley, 16 F. Cas. 1128 (no. 9290), C.C. Mass., 1837. 45. Chester Lloyd Jones, Consular Service, 8–9. 46. Ibid., 9. 47. Hawthorne, Our Old Home, 248. 48. Lester, My Consulship, 280–81. 49. Kennedy, American Consul, vii. 50. David Gedalecia, “Letter from the Middle Kingdom: The Origins of America’s China Policy,” Prologue 34, no. 4 (Winter 2002): 261. 51. Kennedy, American Consul, 41. Technically, the US consuls in France used the title “Commercial Agent,” so as to avoid confusion with Napoleon’s self-proclaimed title of “First Consul.” 52. James O’Donald Mays, Mr. Hawthorne Goes to England: The Adventures of a Reluctant Consul (Ringwood, NH: New Forest Leaves, 1983), 42. 53. Kennedy, American Consul, 7. 54. Mays, Mr. Hawthorne, 42; and Department of State, “Frequently Asked Historical Questions,” accessed May 13, 2009, http://www.state.gov/r/pa/ho/faq/#consular. 55. Kennedy, American Consul, 74. 56. Lester, My Consulship, 278. 57. Kennedy, American Consul, 72. 58. Hawthorne, Our Old Home, 13. 59. New York Times, June 14, 1853. 60. Kennedy, American Consul, 72. 61. The State Department lists some of the authors thus honored on its website. Department of State, “Frequently Asked Historical Questions.” 62. James Grossman, James Fenimore Cooper (Palo Alto, CA: Stanford University Press, 1950), 49–50. 63. Edward Livingston, Report to Congress on Consular Reform, cited in Lester, My Consulship, 287. 64. Richard M. Ketchum, “The Thankless Task of Nicholas Trist,” American Heritage 21, no. 5 (August 1970). 65. Lester, My Consulship, 294. 66. Carr, “American Consular Service,” 912. 67. Harris, “United States Consul’s Role,” 570. 68. Nathaniel Hawthorne, George Parsons Lathrop, and Julian Hawthorne, The Works of Nathaniel Hawthorne, vol. 15 (New York: Houghton Mifflin, 1884), 151. 69. Mays, Mr. Hawthorne, 32. 70. Ibid., 109. 71. Ibid., 204. 72. Ketchum, “Thankless Task.”

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73. Lester My Consulship, 287. 74. Powell, “Jefferson and the Consular Service,” 638. 75. Lester, My Consulship, 285. 76. Chester Lloyd Jones, Consular Service, 10. 77. S. Doc., 21st Cong., 2nd Sess., vol. 2, Doc. 57, 1830–31; and Chester Lloyd Jones, Consular Service, 10. 78. Letter to President Thomas Jefferson from Thomas Tibbs, January 18, 1808, NARA II, RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 79. Letter from James Maury, US consul for Liverpool, to William Pinkney, US ambassador to Great Britain, August 9, 1808, NARA II, RG 59, Despatches from US Consuls in Liverpool, 1790–1906, vol. 1. 80. Letter from George True to James E. Harvey, minister resident at Lisbon, November 5, 1861, RG 84, Funchal, vol. 016, Misc. Letters Sent November 1, 1857–July 20, 1864, 41–42. 81. Letter to J. Pleasanton, Treasury Department, from J. Howard March, February 10, 1846, NARA II, RG 84, Consular Records—Funchal, vol. 003, Misc. Letters Sent, May 28, 1833–November 14, 1857. 82. Harris, “United States Consul’s Role,” 561. 83. Ibid., 559–60. 84. Lester, My Consulship, 297. 85. Hawthorne, Our Old Home, 24. 86. Ibid., 163. 87. Lester, My Consulship, 298. 88. Ibid., 299. 89. An Act in Addition to the Several Acts Regulating the Shipment and Discharge of Seamen, and the Duties of Consuls, 26th Cong., 1st Sess., Ch. 49, July 20, 1840. 90. 1840 act, § 6. 91. Ibid., § 19. 92. Ibid., §§ 12–15. 93. Ibid., §§ 1, 4. 94. Harris, “United States Consul’s Role,” 560. 95. 1840 act. 96. Morris v. Cornell, 1843 U.S. Dist. LEXIS 55, 17 F. Cas. 814, 1 Sprague 62, 6 Law Rep. 304. 97. Harris, “United States Consul’s Role,” 560. 98. Ibid., 564; Knowlton v. Boss, 14 F. Cas. 794 (No. 7901) (C.C. Mass., 1848); and Jordan v. Williams, 13 F. Cas 1115 (No. 7528) (D. Mass. 1851). 99. An Act to Remodel the Diplomatic and Consular Systems of the United States, 33rd Cong., 2nd Sess., Ch. 133, March 1, 1855; and An Act to Regulate the Diplomatic and Consular Systems of the United States, 34th Cong., 1st Sess., Ch. 127, August 18, 1856. 100. 1856 act, § 3. 101. Ibid., § 5. 102. Section 33 of the 1856 act repealed sections 5–7 of the 1840 act, mostly involving consular pay and fees.

258

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103. 1856 act, § 31. Although this brought some clarity, the various expectations and traditions of different nations meant that US officials also served abroad under many titles, with imprecise duties. Including diplomatic officials as well as consuls, Americans served abroad as ministers, envoys extraordinary, commissioners, legation secretaries, dragomen, and interpreters, in addition to the confusion of consuls and commercial agents of various stripes. See 1855 act, §§ 7–8. 104. 1856 act §§ 17–18, 22. 105. Ibid., §§ 15, 22. 106. Ibid., § 8. 107. Ibid., §§ 5, 13, 18, 19, 23, 24, 32. 108. Ibid., § 23. 109. Ibid., §§ 25–28. 110. Mays, Mr. Hawthorne, 73–74. 111. Kennedy, American Consul, 84; and Frederick Van Dyne, Our Foreign Service: The “ABC” of American Diplomacy (Rochester: Lawyers Co-operative, 1909), 121–22. 112. RG 84, Records of Foreign Service Posts—Funchal, Madeira Island, Portuguese Africa, vol. 016, Misc. Letters Sent, November 1, 1857–July 20, 1865, 35–37; and RG 84, Records of Foreign Service Posts—Funchal, vol. 36, Register of Letters Sent, 1833–1865, 9–10. 113. Kennedy, American Consul, 110. 114. H.R. Doc., 26th Cong., 1st Sess., Doc. 707, 1840, 63. 115. Luella J. Hall, The United States and Morocco, 1776–1956 (Metuchen, NJ: Scarecrow Press, 1971), 91, cited in Kennedy, American Consul, 89. 116. Nathaniel Hawthorne Our Old Home, 20–21. 117. Ibid., 21. 118. Ibid.

Ch a pter 8 1. William Sullivan, Sea Life; or, What May or May Not Be Done and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates and Seamen (Boston: James B. Dow, 1837), 30. 2. Burnham v. Hussey (1848), Dana Case File 872, box 2, statement of Charles Burnham. 3. Polynesian, November 26, 1853, quoting letter to consul, Mystic Seaport Museum, Mystic, CT, microfi lm reel 112. Also cited in Briton Cooper Busch, Whaling Will Never Do for Me (Lexington: University of Kentucky Press, 1994), 17. 4. Printed Shipping Articles (1848), Dated Pamphlets, AAS. 5. Christopher L. Tomlins, Labor, Law, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 26. 6. Ibid., 28. 7. See James E. Valle, Rocks and Shoals: Naval Discipline in the Age of Fighting Sail (Annapolis, MD: Naval Institute Press, 1980), 3. 8. Daniel Vickers with Vince Walsh, Young Men and the Sea: Yankee Seafarers in the Age of Sail (New Haven, CT: Yale University Press, 2005), 234.

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9. Jesse Lemisch, Jack Tar vs. John Bull: The Role of New York’s Seamen in Precipitating the Revolution (New York: Garland, 1997). 10. Ibid., 13–49. 11. The standard reference on impressment remains James Fulton Zimmerman, Impressment of American Seamen (New York: Columbia, 1925), although Denver A. Brunsman’s The Evil Necessity: British Naval Impressment in the Eighteenth-Century Atlantic World (Charlottesville: University of Virginia Press, forthcoming) is eagerly anticipated. 12. Letter to President James Madison from prisoners on the prison ship Nassau, July 24, 1813, NARA II, RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 13. Letter to Secretary of State from Thomas Tibbs, May 2, 1809, NARA II, RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 14. Paul A. Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania Press, 2004), 110–20. 15. Seaman’s Protection for Mathias McGill, April 22, 1812, Certificate No. 2,389, District and Port of Philadelphia, NARA II, RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 16. Passports existed for American nonseafarers, but were rare, and no clear rules governed their use, issuance, or even format in the early years of the Republic. G. Hunt, The American Passport: Its History and a Digest of Laws, Rulings, and Regulations Governing Its Issuance by the Department of State (Washington, DC: Government Printing Office, 1898). 17. 9 Peters 699; and Hunt, American Passport, 37. 18. Act for the Relief and Protection of United States Seamen, 4th Cong., 1st Sess., Ch. 36, May 28, 1796. 19. Letter from James Monroe, secretary of state, to Charles Dickison, December 11, 1813, NARA II, RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 20. Dred Scott v. Sandford, 60 U.S. 393 (1856), 60 U.S. 393 (How.); and US Const. amend. XIV (1868). 21. Letter to Secretary of State James Madison from John Holdridge et al., June 18, 1807, NARA II, RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 22. Vickers, Young Men and the Sea, 233–34. 23. Tomlins, Labor, Law, and Ideology, 81. 24. Ibid. 25. Vickers, Young Men and the Sea, 231. 26. Christopher L. Tomlins, “Law and Power in the Employment Relationship,” in Labor Law in America: Historical and Critical Essays, ed. Christopher L. Tomlins and Andrew J. King (Baltimore: Johns Hopkins University Press, 1992), 71–98. 27. K. Jack Bauer, A Maritime History of the United States (Columbia: University of South Carolina Press, 1988), 53. 28. An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for Other Purposes, 1st Cong., 1st Sess., Ch. 11, September 1, 1789; and An Act for the Government and Regulation of Seamen in the Merchant Service, 1st Cong., 2nd Sess., Ch. 29, July 20, 1790. 29. Hawser Martingale, Tales of the Ocean (Boston: William J. Reynolds, 1845), 9.

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30. George Davis, Recollections of a Sea-Wanderer’s Life (New York: A. H. Kellogg, 1887), 100. 31. United States v. Peterson et al., C.C.D. Mass. (1846), Case No. 16,037, 27 F. Cas. 515, 1846 U.S. App. LEXIS 429, May 1846. 32. For a view of Justice Story’s interpretation of shipboard authority, see Vickers, Young Men and the Sea, 226. 33. Richard Henry Dana Jr., Two Years before the Mast (Boston, 1840; repr., with an introduction by Thomas Phillbrick, New York: Penguin Books, 1986), 465. Page citation is to the reprint edition. 34. Richard Henry Dana Jr., The Seaman’s Friend: Containing a Treatise on Practical Seamanship, with Plates; a Dictionary of Sea Terms; Customs and Usages of the Merchant Service; Laws Relating to the Practical Duties of Master and Mariner (Boston: Thomas Groom, 1851; repr., Delmar, NY: Scholars’ Facsimiles, 1979). 35. New York Morning Herald, November 18, 1837. 36. John Williams, Francis Frederick, John P. Rog, and Nils Peterson, Lives and Confessions of John Williams, Francis Frederick, John P. Rog, and Peter Peterson, Who Were Tried at the United States Circuit Court in Boston, for Murder & Piracy (Boston: J. T. Buckingham, 1819). 37. New York Morning Herald, April 22, 1837. 38. United States v. George W. Howes, D.C.S.D.N.Y. (1851), Criminal Case #1–285. 39. In the New York federal courts, 54 percent of criminal cases can be identified as violent crimes at sea (772 of 1,435). The number may be higher, as this does not include cases of indeterminate location or charge. Additionally, it omits robbery and other nonviolent crimes that took place on ships. 40. Charles Stuart Kennedy, The American Consul: A History of the United States Consular Service, 1776–1914 (Westport, CT: Greenwood Press, 1990), 41–48, 106. 41. Peter Charles Hoffner, Law and People in Colonial America (Baltimore: Johns Hopkins University Press, 1992), 49–56. 42. An Act for the Government and Regulation of Seamen in the Merchant Service, 1st Cong., 2nd. Sess., Ch. 29, July 20, 1790; An Act Supplementary to the “Act Concerning Consuls and Vice-Consuls, and for the Further Protection of American Seamen,” 7th Cong., 2nd Sess., Ch. 9, February 28, 1803; An Act to Amend the Act, Entitled, “An Act for the Government and Regulation of Seamen in the Merchant Service, 8th Cong., 2nd Sess., Ch. 28, March 2, 1805; An Act in Amendment of the Acts for the Punishment of Offences against the United States, 23rd Cong., 2nd Sess., Ch. 40, March 3, 1835; and An Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One, 31st Cong., 1st Sess., Ch. 80, September 28, 1850. 43. C. M. Hough, quoted in Jeffrey B. Morris, Federal Justice in the Second Circuit: A History of the United States Courts in New York, Connecticut & Vermont, 1787 to 1987 (New York: Second Circuit Historical Committee, 1987), 16. 44. Morris, Federal Justice, 154. 45. William Sullivan, Sea Life, 15. 46. Forbes v. Parson (1839), Case No. 4,929, D.C.E.D. Penn. 1839, U.S. Dist. LEXIS 5, 9 F. Cas. 417, 1 Crabbe 283.

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261

47. William Sullivan, Sea Life, 21. 48. United States v. Michael Duggan & Addison Grindell, C.C.S.D.N.Y. (1842). 49. Ibid. 50. Ibid. 51. Ibid. 52. United States v. Peter Johnson (1848), Dana Case File 823, box 2, statement of Peter Johnson (AAS/Dana). 53. Burnham v. Hussey (1848), Dana Case File 872, box 2, statement of Charles Burnham (AAS/Dana). 54. Dana, Two Years, 88. 55. United States v. George Mitchell, C.C.S.D.N.Y. (1820), deposition of George Mitchell. 56. Paul A. Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763–1834 (Chapel Hill: University of North Carolina Press, 1987). See also Gilje, Liberty on the Waterfront. 57. Letter to unnamed secretary of state from Thomas Tibbs, May 2, 1809, NARA II RG 59, Entry 928, Letters Received Regarding Impressed Seamen. 58. An Act Laying an Embargo on All Ships and Vessels in the Ports and Harbors of the United States, 10th Cong., 1st Sess., Ch. 5, December 18, 1807. 59. United States v. William Mears et al., C.C.S.D.N.Y. (1834), deposition of Cornelius Ravens. 60. Burnham v. Hussey (1848), Dana Case File 872, box 3, statement of Charles Burnham (AAS/Dana). 61. Frederic Sawyer, Merchant’s and Shipmaster’s Guide (Boston: Benjamin Loring, 1840), 146. 62. John Truair, A Call from the Ocean; or, An Appeal to the Patriot and the Christian, in Behalf of Seamen (New York: American Seamen’s Friend Society, 1826), 6. 63. Nicholas Peter Isaacs, Twenty Years before the Mast; or, Life in the Forecastle (New York: K. P. Beckwith, 1845), 80. 64. Ibid., 81. 65. Williams et al., Lives and Confessions, 7. 66. Isaacs, Twenty Years, 90. 67. Ibid., 80. 68. Dana, Two Years, 152. 69. Herman Melville, Redburn (New York, 1849; repr., with an introduction by Harold Beaver, New York: Penguin Books, 1986), 119. Page citation is to the reprint edition. 70. Emma Christopher, Slave Ship Sailors and Their Captive Cargoes, 1730–1807 (New York: Cambridge University Press, 2006), 106–7. 71. Edmund S. Morgan, American Slavery, American Freedom (New York: W. W. Norton, 1975), 5–6, 376, 380; and Eric Foner, The Story of American Freedom (New York: W. W. Norton, 1999), 29–36. 72. Philip M. Hamer, “Great Britain, the United States, and the Negro Seamen Acts, 1822–1844,” Journal of Southern History 1, no. 1 (February 1935): 3–28. 73. Liberator (Boston), vol. 13, February 10, 1843, 24.

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74. Committee on Commerce, Free Colored Seamen—Majority and Minority Reports, H.R. Rep. No. 80, Serial Set Vol. 426, Session Vol. 1, at 1 (27th Cong., 3rd Sess., January 20, 1843). 75. Liberator (Boston), vol. 13, February 10, 1843, 24. 76. Liberator (Boston), vol. 22, May 14, 1852, 77. 77. New York Times, July 10, 1854. 78. William E. Channing, The Duty of the Free States; or, Remarks Suggested by the Case of the Creole (Philadelphia, 1842), 15. 79. United States v. George Beckett, D.C.S.D.N.Y., 1–197 (1849), deposition of James Castle. 80. Ibid. 81. New York Times, July 10, 1854. 82. W. Jeffrey Bolster, Black Jacks: African American Seamen in the Age of Sail (Cambridge, MA: Harvard University Press, 1997), 6. 83. Williams et al., Lives and Confessions, 19–20. 84. Ibid. 85. United States v. Evan Farwell, C.C.S.D.N.Y. (1837), deposition of Walter Landells. 86. Ibid. 87. Ibid., deposition of George Gundy. 88. Thomas J. Wansley, The Life and Confession of Thomas J. Wansley, One of the Pirates, Concerned with Charles Gibbs, alias James Jeffers, in the Murder and Piracy Committed on Board the Brig Vineyard (New York: Charles N. Baldwin, 1831), 23. 89. Ibid., 24. See also Israel Smith, Mutiny and Murder: Confession of Charles Gibbs (Providence: Israel Smith, 1836). 90. United States, Appellants, v. The Libellants and Claimants of the Schooner Amistad (1841), S.C.O.T.U.S., 40 U.S. 518, 10 L. Ed. 826, 1841 U.S. LEXIS 279. See also Amistad, S. ex. Doc. 29 (31–2), 589; and S. Doc. 179 (26–2), 378. 91. United States v. James Jones et al., C.C.S.D.N.Y. (1849), deposition of George Gilman, April 12, 1849. 92. Lemisch, Jack Tar vs. John Bull, xviii. 93. See William Byrk, “Common Sense,” New York Press, vol. 15, no. 5, February 14, 2001. 94. Lemisch argues that the seaman was the “extreme individualist.” Lemisch, Jack Tar vs. John Bull, 8. Lawrence Kohl argues that individualism was the central defi ning characteristic of the Jacksonian mind-set. Lawrence Frederick Kohl, The Politics of Individualism: Parties and the American Character in the Jacksonian Era (New York: Oxford University Press, 1989), 4.

Ch a pter 9 1. William Sullivan, Sea Life; or, What May or May Not Be Done, and What Ought to Be Done by Ship-Owners, Ship-Masters, Mates, and Seamen (Boston: James B. Dow, 1837), 90.

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2. John Truair, A Call from the Ocean; or, An Appeal to the Patriot and the Christian, in Behalf of Seamen (New York: American Seamen’s Friend Society, 1826), 6. 3. William Sampson, The Trial of Capt. Henry Whitby for the Murder of John Pierce, His Dying Declaration. Also, the Trial of Capt. George Crimp, for Piracy and Manslaughter (New York: Gould, Banks, and Gould, 1812), 19. 4. Ibid., 32–39. 5. Ibid., 94. 6. Ibid. 7. Ibid., 95. 8. On the popularity of such literature, see Ann Fabian, The Unvarnished Truth: Personal Narratives in Nineteenth-Century America (Berkeley: University of California Press, 2000); on the importance of the law in the literature of the United States, see Robert A. Ferguson, Law and Letters in American Culture (Cambridge, MA: Harvard University Press, 1984). On the development and popularity of American sea literature more broadly, see Thomas Philbrick, James Fenimore Cooper and the Development of American Sea Fiction (Cambridge, MA: Harvard University Press, 1961), 1–41. 9. Philbrick, James Fenimore Cooper, 3. 10. On American seafarers as literary “heroes,” see Philbrick, James Fenimore Cooper, 3–9. On Cooper’s using a sea narrative as a means of pressing for reform, see Hester Blum, “Before and after the Mast: James Fenimore Cooper and Ned Myers,” in Pirates, Jack Tar and Memory: New Directions in Maritime History, ed. Paul Gilje and William Pencak (Mystic, CT: Mystic Seaport Press, 2007), 115–34. 11. Marcus Rediker, Between the Devil and the Deep Blue Sea (1987; repr., New York: Cambridge University Press, 1996); and Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000). 12. Paul A. Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania Press, 1994), 130–94; and Jesse Lemisch, Jack Tar vs. John Bull: The Role of New York’s Seamen in Precipitating the Revolution (New York: Garland Press, 1997). 13. Daniel Vickers with Vince Walsh, Young Men and the Sea: Yankee Seafarers in the Age of Sail (New Haven, CT: Yale University Press, 2005), 137. 14. Journals of Congress, 1796–1797, 4th Cong., 2nd Sess., May 28, 1796, app., 2919. 15. On the impressment crisis, see Denver A. Brunsman, “The Evil Necessity: British Naval Impressment in the Eighteenth-Century Atlantic World” (PhD diss., Princeton University, 2004); and James Fulton Zimmerman, Impressment of American Seafarers (Port Washington, NY: Kennikat Press, 1966). 16. Truair, Call from the Ocean, 6–7. 17. Roald Kverndal, Seamen’s Missions: Their Origin and Early Growth (Pasadena, CA: William Carey Library), 454–60. 18. George Charles Smith, Christian Herald and Seaman’s Magazine, 1823, 26, cited in Kverndal, Seamen’s Missions, 454. 19. Kverndal, Seamen’s Missions, 455. 20. Perhaps uncoincidentally, Philbrick observes a growing heroism and romanticism in depictions of seafarers after 1815 more generally, noting a “happy coincidence of

264

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an extensive and enthusiastic popular investment in maritime life and the availability of the values and perceptions of romanticism by the 1820s.” Philbrick, James Fenimore Cooper, 14. 21. Hawser Martingale, Tales of the Ocean (Boston: William J. Reynolds, 1845), 18. 22. On the anxieties of effeminizing modernity, see T. J. Jackson Lears, No Place of Grace: Antimodernism and the Transformation of American Culture (1983; repr., Chicago: University of Chicago Press, 1994). 23. Elbridge S. Brooks, The Story of the American Sailor in Active Service on Merchant Vessel and in Man-of-War (Boston: D. Lothrop, 1888), 160. 24. Brooks is, in essence, echoing the concerns of the “muscular Christianity” movement, which began just before the Civil War and reached its height at century’s end. See Eliot J. Gorn and Warren Goldstein, A Brief History of American Sports (Urbana: University of Illinois Press, 2004), 81–105. 25. Ibid., 187. 26. Lovrein v. Thompson, 1857 U.S. Dist. LEXIS 63, 15 F. Cas. 1005, 1 Sprague 355 (D. Mass., 1857). 27. Luscom v. Osgood, 1844 U.S. Dist. LEXIS 26, 15 F. Cas. 1115, 1 Sprague 92, 7 Law Rep. 132 (D. Mass., 1844). 28. Ibid. 29. Ibid. 30. John Tebbel, Between Covers: The Rise and Transformation of American Book Publishing (New York: Oxford University Press, 1987), 6. 31. Philbrick, James Fenimore Cooper, vii. 32. Ibid., vii–xi passim. 33. Erastus C. Benedict, The American Admiralty, Its Jurisdiction and Practice: With Practical Forms and Directions (New York: Banks, Gould, 1850), v. 34. Ferguson, Law and Letters. 35. Charles Stewart Kennedy, The American Consul: A History of the United States Consular Service, 1776–1914 (Westport, CT: Greenwood Press, 1990), 72–73. 36. On Melville and Hawthorne as self-conscious proponents of a national American literature, see James C. Wilson, The Hawthorne and Melville Friendship: An Annotated Bibliography and Critical Essays, and Correspondence between the Two (Jefferson, NC: McFarland, 1991), 2. On Cooper, see Philbrick, James Fenimore Cooper; and Blum, “Before and after the Mast.” 37. James O’Donald Mays, Mr. Hawthorne Goes to England: The Adventures of a Reluctant Consul (Ringwood, NH: New Forest Leaves, 1983). See also Kennedy, American Consul, 82–83. 38. Nathaniel Hawthorne, Our Old Home, and English Note-Books, vol. 1 (1863; repr., Boston: Houghton Mifflin, 1902), 23. Page reference is to the reprint edition. 39. John Jenson, oral presentation at the Munson Institute, Mystic Seaport, Mystic, CT, July 16, 2010. 40. Herman Melville, Redburn (New York, 1849; repr., with an introduction by Harold Beaver, New York: Penguin Books, 1986), 139. Page citation is to the reprint edition. 41. Martingale, Tales of the Ocean, 74–101.

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42. Jacob Nagle, The Nagle Journal: A Diary of the Life of Jacob Nagle, Sailor, from 1775 to 1841 (New York: Weidenfeld & Nicholson, 1988), 71. 43. Melville, Redburn, 194. 44. Johnson v. White (1851), Dana Case File 979 (AAS/Dana). 45. Joanna Foster, “Tales of Three Captains,” Westport News (Westport, CT), June 19, 1985, 27; and Helen Louise Sherwood, “Reminiscences of Captain Frederick Sherwood by His Granddaughter” (Westport, CT: Westport Public Library, ca. 1930). 46. Nathaniel Hawthorne, Passages from the English Notebooks (Boston: Houghton Mifflin, 1870), 113, cited in Mays, Mr. Hawthorne Goes to England, 78. 47. William Sullivan, Sea Life, 63. 48. Thomas V. Sullivan, Scarcity of Seamen (Boston: J. Hare, 1853), 16. 49. Brooks, Story of the American Sailor, 183. 50. Nicholas Peter Isaacs, Twenty Years before the Mast; or, Life in the Forecastle (New York: K. P. Beckwith, 1845), 63–65. 51. Martingale, Tales of the Ocean, 262–65. 52. Nagle, Nagle Journal, 307. 53. Charles Nordhoff, cited in Brooks, Story of the American Sailor, 183–84. 54. Brooks, Story of the American Sailor, 188. 55. Dana, Two Years, 184. 56. Joseph Baker et al., The Last Words and Dying Confessions of the Three Pirates, Who Were Executed this Day (May 9th, 1800) (Philadelphia: Folwell’s Press, 1800). 57. Anonymous, An Interesting Trial of Edward Jordan, and Margaret, His Wife, Who Were Tried at Halifax, N.S. Nov. 15th 1809, for the Horrid Crime of Piracy and Murder Committed on Board the Schooner Three Sisters, Captain John Stairs (Boston, 1809). 58. James Bowes, Trial of Jones, Hazelton, Anderson, and Trevaskiss, alias Johnson, for Piracy and Murder on Board Barque Saladin, with the Written Confessions of the Prisoners (1844; repr., Halifax, NS: Petheric Press, 1967), 59. Page citation is to the reprint edition. 59. Harold Horwood and Edward Butts, Pirates & Outlaws of Canada, 1610–1932 (Garden City, NY: Doubleday, 1984), 141–52. 60. William Sullivan, Sea Life, 13–14. 61. Martingale, Tales of the Ocean, 13. 62. G. E. Manwaring and Bonamy Dobrée, Mutiny: The Floating Republic (1935; repr., London: Century Hutchinson, 1987). 63. Aaron Smith, The Atrocities of the Pirates; or, A Faithful Narrative of the Unparalleled Sufferings Endured by the Author, during His Captivity among the Pirates of the Island of Cuba, with an Account of the Barbarities of Those Inhuman Freebooters (New York: Robert Lowry, 1824), 39. 64. William Sullivan, Sea Life, 15. 65. United States v. Peterson et al., C.C.D. Mass. (1846), Case No. 16,037, 27 F. Cas. 515, 1846 U.S. App. LEXIS 429, May 1846. 66. Martingale, Tales of the Ocean, 305. 67. Anonymous, Lives and Trial of Gibbs & Wansley, Who Were Executed for Piracy (Boston, 1832), 23.

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68. Samuel Tully, “The Last Words of Samuel Tully Who Was Executed for Piracy, at South Boston, December 10, 1812” (Boston: Timothy Longlive, 1812). 69. Ibid.

Conclusion 1. Nicholas P. Trist, Consular Despatch 62 (December 24, 1838), in H.R. Rep. 707, 26th Cong., 1st Sess. (1840), at 50. 2. Frederic Sawyer, The Merchant’s and Shipmaster’s Guide (Boston: Benjamin Loring, 1840), 147.

Illustr ation Cr edits [Figure 1] William James Bennett, South St. from Maiden Lane. 1834(?) Print Collection. Miriam and Ira D. Wallach Division, New York Public Library. [Figure 2] Henry Inman, Samuel Rossiter Betts, 1834. Oil on canvas. Museum of the City of New York, Paintings Collection. [Figure 3] George Peter Alexander Healy, Peleg Sprague, 1902 copy by S. I. Putnam. Oil on canvas. Maine State Museum, Gift of Dr. F. P. Sprague. [Figure 4] Matthew Brady Studio, Joseph Story, half-length portrait, facing front, with spectacles, between 1844/1845. Half plate daguerreotype. Daguerreotype Collection, Prints & Photographs Division, Library of Congress, LC-USZ62-110196. [Figure 5] A. A. Von Schmidt, Discipline on the Ship, 1846 Illustration published in J. Ross Browne, Etchings of a Whaling Cruise (New York: Harper, 1846). [Figure 6] [Potter Jackson, a free black man who worked as a seaman . . .]. Engraving. 1807(?) Miscellaneous Items in High Demand Collection, Prints & Photographs Division, Library of Congress, LC-USZ62-90731. [Figure 7] Thomas Fairland (lithographer) Samuel Walters (artist), The loss of the Pennsylvania New York packet ship, the Lockwoods emigrant ship, the Saint Andrew packet ship and the Victoria from Charleston near Liverpool during a hurricane, Jan. 7th & 8th, 1839. (1839). Hand-colored lithograph. [Figure 8] Seamen’s Protection Certificate, 1810, Mystic Seaport, Coll 304 Box 1 Fol1106P. [Figure 9] Scrimshaw tooth, man holding American flag, (c.1865), Sperm Whale Tooth, Mystic Seaport # 1939.1756. [Figure 10] Young America denims, (c. 1858) Engraving, Advertising label.

Index

Abbott, Charles, 62 Abraham Simonson (vessel), 81–82 Act for the Government and Regulation of Seamen in the Merchant Service (1790), 42–43 Act for the Punishment of Certain Crimes against the United States (1790), 42 Act for the Relief and Protection of American Seamen (of 1796), 200. See also impressment crisis Act in Addition to the Several Acts Regulating the Shipment and Discharge of Seamen, and the Duties of Consuls (1840), 86, 117–19, 123, 155, 167–69, 176, 213 Act in Amendment of the Acts for the Punishment of Offenses (of 1835), 45–47, 54–61, 71, 115–17, 122–25, 149, 168, 176 Act Making Appropriations for the Naval Service for the Year Ending the Thirtieth of June, One Thousand Eight Hundred and Fifty-One (1850). See discipline; flogging Act More Effectually to Provide for the Punishment of Certain Crimes against the United States, and for Other Purposes (1825), 45–46 Act Supplementary to the Act Concerning Consuls and Vice-Consuls, and for the Further Protection of American Seamen (1803), 55, 155, 159–60, 167–69, 192 Act to Establish the Judicial Courts of the United States (1789). See Judiciary Act (of 1789) Act to Regulate the Diplomatic and Con-

sular Systems of the United States (1856), 154–55, 169–70, 177 Adams, John, 33, 155 Adams, John Quincy, 28–29 Address to the Masters of Vessels (Tuckerman), 127 admiralty law, 15, 19, 29–33, 36, 38, 47, 213, 220n11, 226n15, 227n19 Albion, Robert G., 126, 132 alcohol, 14, 59, 70, 86, 89, 97, 107, 111, 128, 149 Almanack Calculated for New England, by Mr. Pierce, Mariner, 202 American Revolution, 9, 14, 23, 26, 33–34, 149, 156, 175–77, 195–96, 207 La Amistad (vessel), 194 apprenticeships, 22–24, 43–47, 62–64, 126, 170 Articles of Confederation, 33, 181 articles (ship’s). See ship’s articles Ashbury, Joel, 92 assault. See crimes assault with a dangerous weapon. See crimes Atlantic Monthly, 105 Austin, George B., 114 Autobiography (Franklin), 22 Barbary corsairs, 13 Beckett, George, 191 Bee, Thomas, 53, 55, 59, 127 Belona (vessel), 178–79 Benedict, Erastus C., 39–40 Benito Cereno (Melville), 57 Bennett, James Gordon, 134

267

268

Index

Benton, Isaac, 2, 7, 105 Berry, John, 121–22 Betts, Samuel Rossiter: federal power and, 6, 32–33, 35–36, 40–41, 46, 75, 214, 223n18; images of, 30; intellectual development of, 11, 28–29, 32; race and, 191–94, 209 Billy Budd (Melville), 57, 204 Binney (vessel), 110, 117 Black Ball Line, 107 Black Book of Admiralty, 30–31 Blunt, Joseph, 62, 135, 140 Bolster, Jeffrey, 19, 105 Boston Custom House, 151, 204 Boston’s Mariner’s Church, 68 bottomry, 31, 222n8, 227n19 Bounty (vessel), 128 Bourne, Sylvanus, 164 Bowers, William A., 108–9 Britain: American nationalism and, 197–200; impressment crisis and, 4, 13, 25, 147, 154, 158–59, 161, 176–78, 187, 189, 197–201, 210, 227n24; legal legacies of, 30–32, 34, 42, 53, 62, 219n7 British and Foreign Seamen’s Friend Society, 201 Brookman, Charles, 58 Brooks, Elbridge, 109–10, 201, 206, 264n24 Brooks, Noel, 142–43 Brown, John, 70, 193 Brown, William, 59 Burnham, Charles, 187–88 Burnham v. Hussey, 174 Burns, Henry, 86 Busch, Cooper, 119 Butler, Judith, 243n7 Butts, I. R., 59 Byerly, F., 89 Call from the Ocean, A (Truair), 201 Cambridge (vessel), 107, 119 Canada, 17, 89, 207 capitalism. See class; labor; maritime culture captains. See officers Caravan (vessel), 134 Carl, William B., 73 Carr, Thomas N., 171 Carr, William, 90 Catherine (vessel), 86 Channing, William E., 191 Chestnut, John, 137

Chile, 89 Christopher, Emma, 190 citizenship: consuls’ role in defi ning, 147–48, 151–73, 178–79, 187; as contested and negotiated ground, 3–4, 27, 145, 148–49, 189–91, 200, 211–12; crews’ international composition and, 187–91; impressment crisis and, 4, 7, 13, 147, 176–78, 187–89, 210; individual rights and, 6–7, 10, 13, 42, 54, 56, 148–53, 160, 165, 168, 173–76, 180–200, 210–17; legal discourses and, 11, 175–76, 178, 180–87, 209, 215–16; official defi nition of, 4, 178, 216; race and, 189–94. See also consuls; race; rights (personal); seamen; United States Civil War (US), 48, 205, 214 Clark, Arthur H., 56, 106 class, 23–24, 86, 123–39, 176, 224n38, 248n13 Code D’Oléron, 30 Cole, James, 107, 141–42 Collins, Edward Knight, 222n15 Colonel Taylor (vessel), 95 Columbus (vessel), 81–82 Commentaries on the Constitution of the United States (Story), 37 Common Sense (Paine, T.), 196 Comstock, George, 88 Congress (vessel), 67–68 Connecticut, 17, 28, 205 Constitution (of the United States): citizenship and, 4, 147, 216; consular services and, 155; federal powers and, 5, 10, 29, 35, 184, 213; Fourteenth Amendment to, 4, 178; ratification of, 13–14, 181, 211, 228n30; saving clause of, 35, 38; Story and, 37 consuls: ad hoc nature of, 3–5, 144–45, 148, 152–56, 168, 181–82, 215; citizenship issues and, 147–48, 153, 159–60, 166–67, 171, 178–79; expansion of system of, 115–16, 147–48, 167; federal power and, 152–53, 155–57, 159–60, 166, 169–70, 173–75; impressment crisis and, 154, 158–59, 161, 176–78; James Fenimore Cooper as, 162, 199, 203–4, 210; James Maury as, 158–65; Nathanial Hawthorne as, 151–57, 161–63, 166, 170–72, 204, 215; Nicholas Trist as, 130–31, 164, 171, 211; officers’ disciplinary measures and, 52, 87, 130–31; as political appointees, 151,

Index 154, 162–64, 204, 215; 1856 restructuring of, 155, 169–70, 258n103; seamen’s appeals to, 10, 86–87, 117, 157–61, 164–65, 167–69, 173–76, 217; uniforming of, 156–57, 254n24. See also law, the; seamen; United States Continental Congress, 33, 155–56 Conway, Joseph, 1–8, 76, 92 cooks, 79, 87, 95, 103, 191–93, 205, 235n36 Cooper, James Fenimore, 162, 199, 203–4, 210 Copia (vessel), 90–91 Cornelia (vessel), 136 corporal punishment. See discipline; flogging; officers; seamen; violence Courier (vessel), 186 courts: as archival source, 5, 23; bench law and, 3–4, 6–7, 44–46; British, 31–35; citizenship issues and, 48, 147, 149, 153, 155–56, 175–80, 183–87, 190, 196, 199, 210, 212, 216–17; consuls and, 86, 161, 165–66, 168–69, 173; federal, 5, 15, 27, 29–30, 32–37, 40–41, 236n42, 240n25; High Court of Admiralty and, 33; jurisdictional issues and, 4, 6, 10, 18, 29, 32–37, 40–41, 44, 82, 155–56, 176, 180–81, 228n29, 229n47; labor disputes and, 15, 43–48, 50, 52, 107–8, 147, 217, 232n90, 240n25; maritime courts and admiralty distinction and, 9, 31–36, 105, 155–56, 180, 219n7, 228n29, 229n45; officers’ authority and, 52–70, 85, 115, 122, 130–37, 144–45, 168, 183, 187; prize courts and, 228n30; seamen’s legal conversance and, 71–82, 90, 160–61, 167, 180–81, 183; Southern District of New York and, 28–29, 48–49, 82; state, 44; US circuit courts and, 7, 60–61, 70, 127, 137, 204, 208, 219n9, 229n47, 238n85; US district courts and, 4, 27, 29, 35–36, 53, 60, 64, 85, 92, 219n9, 228n30, 229n47, 238n85; vice-admiralty-, 32–35, 229n45. See also crimes; judges; law, the; maritime culture; seamen; United States craft rights and conventions. See forecastle law; labor; seamen Creighton, Margaret, 131 Creole (vessel), 191 crimes: assault and, 4, 31, 46, 56, 61, 65–70, 74, 108, 115, 127, 134–38, 236n37; assault with a dangerous weapon and, 4, 46,

269

56, 114, 122, 191; confi ning the master and, 4, 45, 79–82, 137; cruel and unusual punishment and, 4, 57–63, 66–70, 77; endeavor to make a revolt and, 4, 45, 79; maiming and, 4; mayhem and, 4; murder and, 4, 12, 31, 46, 68, 74, 89, 114, 166, 186, 191–92, 197–98, 209; revolt and, 4, 45, 54, 58–59, 74, 79–84, 91–92, 111–15, 135–37, 153, 192. See also desertions; mutinies Crimes Act (of 1825), 45–46 Crimes Act (of 1835). See Act in Amendment of the Acts for the Punishment of Offenses (of 1835) Crimp, George, 197 “crimps,” 25 Crocker, Ferdinand, 59 cruel and unusual punishment (standard), 57–63, 66–70, 77. See also discipline; officers; seamen Cultivator (vessel), 114 Cunard, Samuel, 18, 222n15 Curtis, Benjamin, 56, 61, 63, 133 Curtis, George, 55 Dana, Richard Henry, Jr.: guidebooks of, 20, 22, 56–57, 62–63, 66, 68, 71, 106–7, 110–11, 142–43, 203–4, 210; as lawyer, 5, 60, 67, 69, 80, 126, 134, 138–41, 183, 185–86, 205; seagoing experience of, 78, 188, 190, 199, 201, 206 David Pratt (vessel), 95 Davis, George, 81 Day, Orrin, 142–43 Delaware 74 (vessel), 194 DeLovio v. Boit, 37–38 Demeter, Nicholas, 68 Dening, Greg, 128 desertions, 77–79, 159–60, 208 Dickens, Charles, 73, 101 discipline: cruel and unusual punishment and, 57–63, 66–68, 70, 77; flogging and, 16, 46–47, 54–60, 68–71, 76–77, 96, 101, 104, 115, 117, 136, 246n62, 247n74; food rations and, 110; honor and, 104, 136; mates and, 66, 68–70, 107–8, 112–13, 137–44; non-corporeal punishments and, 54–55, 58–62; officers’ prerogatives and, 1–2, 51–72; race and, 83, 191–94; wagedocking and, 133, 182, 237n63 dueling, 135–36, 251n69

270

Index

Duggan, Michael, 186 Dutch East India Company, 220n12 Edward Everett (vessel), 139 Elizabeth Dennison (vessel), 77, 113, 140 Emerald (vessel), 86 endeavor to make a revolt. See crimes Enterprise (vessel), 133 Esther Francis (vessel), 59 Fairfi eld (vessel), 67, 101–2, 110, 112–14, 117–18 Far East spice trade, 16–17 Farland, John, 67 Farwell, Evan, 132, 193 federal courts. See courts Federalist Papers, 34 federal jurisdiction. See courts federal law. See law, the; specific acts Fielding (mutineer), 88–90, 128 fisheries, 15–16, 21. See also whaling; specific vessels Five Years before the Mast (Hazen), 121 flogging: ban on, 16, 47, 55–58, 71, 76, 104, 246n62; extralegal resistance to, 96, 115; honor and, 101, 136; images of, 83, 118; legal discourses and, 54, 60, 77, 117, 247n74; literary representations of, 57; practices of, 68–69; reform movements and, 112, 183; scholarship on, 52. See also discipline; officers; seamen; violence Flood, John, 1–2, 7 forecastle law, 76, 93, 98, 101–20, 137–38, 245n39, 246n60 Forest (vessel), 121–22, 128 Forsyth, Craig J., 25 Fourteenth Amendment (to the Constitution), 4, 178 Franklin, Benjamin, 22, 155 French, Francis M., 136 French Revolution, 106 Friedman, Lawrence M., 40 Gallagher, John D., 92 Galligan, Thomas C., Jr., 34 Galloway, John, 89–90 Garrison, William Lloyd, 190–91 Gaspar, John, 61–62 Geertz, Clifford, 243n7 gender: extralegal practices and, 7, 95–98; honor and, 95–98; Jacksonian equality

and, 51, 149, 214–15; labor divisions and, 103; performativity and, 103–4, 243n7; race and, 106; seamen’s masculinity and, 2, 20, 65, 97–98, 104–20, 126–27, 214, 248nn17–18. See also honor; masculinity; officers Gentos (vessel), 78 Gilbert, John, 73, 186–87 Gilje, Paul, 184, 188 Globe (vessel), 88, 90 Godfrey, James, 114 Good, Richard, 79, 88 Governor Thorpe (vessel), 69 Grigg, Edward, 86–87 Grindell, Addison, 186 Grotius, Hugo, 220n12 guidebooks: advisory role of, 8, 55–70, 76, 88, 101, 106–7, 184, 212, 214; reformers’ outlook and, 128–29, 131, 140. See also specific authors and guidebooks Guy Manning (vessel), 143 Halcyon (vessel), 82, 91 Hale, John T., 47 Halifax, 89 Hamilton, Alexander, 34 Hanseatic League, 30 Hargraves, John, 70, 133–34 Harlow, Fredrick Pease, 22 Harris, Charles B., 165, 168 Harrison, William Henry, 207 Harvard (vessel), 60–61 Harvey, Lemuel, 79, 87–88 Havana, 130–31, 142, 162, 164, 171 Hawthorne, Nathaniel, 151–57, 161–63, 166, 170–72, 204, 215 Hazen, Jacob A., 121 Henry Kneeland (vessel), 82, 90 Hewes (vessel), 86–87 Hewitt, Frederick, 141 High Court of Admiralty, 33 Hollis, Lewis G., 78 honor: discipline and, 101–4; duels and, 135–36, 251n69; forecastle law and, 98, 101–20, 137–38, 245n39, 246n60; legal interventions in, 130–33, 144–45, 217; masculinity and, 95–98, 175, 183, 214–15; officers’ status and, 120–45, 211–12; seamen’s defense claims and, 7, 211–12. See also class; masculinity; officers; seamen

Index Hopkinson, Joseph, 185 Hotchkiss, Levi, 60–61 Hough, C. M., 184 Huntress (vessel), 91 Hussey, Samuel B., 187–88 Hutchinson, John, 138–39 impressment crisis: American citizenship and, 4, 7, 13, 147, 176–78, 187–89, 210; consular interventions and, 154, 158–59, 161, 176–77; labor strikes and, 25, 227n24. See also Act for the Relief and Protection of American Seamen (of 1796) Ireland, 32 Isaacs, Nicholas Peter, 189–90, 206 Isaacs, Rhys, 243n7 Jackson, Andrew, 23, 40, 51, 97, 106, 122, 149, 161–63, 176, 210, 214–15 Jack Tar (fi gure): as heroic fi gure, 199–200, 216, 217, 263n20; mutability of, 23–24, 97, 102–3 Jason (vessel), 138–39 J. B. Lindsay (vessel), 78 Jefferson, Thomas, 9, 13, 23, 40, 106, 122, 155–56, 176 Jenson, John, 205 John E. Davidson (vessel), 191 Johnson, Elihu, 117 Johnson, Emory R., 152 Johnson, Peter, 186 Johnson, William, 40 Johnston, Bill, 207 Jones, Charles, 127 Jones, George, 89, 207 Jordan, Edward, 207 Journal (Nagle), 206 J. U. Brookman (vessel), 58 judges: Ashur Ware as, 65; C. M. Hough as, 184; Charles Abbott as, 62; Eduardo Robreno as, 36, 48; Henry Ware as, 133; Joseph Hopkinson as, 185; Joseph Story as, 6, 11, 28, 37–38, 39, 49, 64–66, 134, 182, 214, 223n18, 230n70; Peleg Sprague as, 6, 11, 28, 37, 38, 40–41, 49, 75, 83, 139, 168, 202, 214; Richard Peters as, 36, 135; Samuel Betts as, 6, 11, 28–32, 30, 32–36, 40–41, 46, 75, 191–94, 209, 214, 223n18; Thomas Bee and, 53–55, 127. See also crimes; jurisdictional issues; law, the; United States

271

Judiciary Act (of 1789), 27, 35–36, 38–39, 229n47 jurisdictional issues: in the colonial period, 30–32; international relations and, 154– 55, 181, 184; piracy and, 26; seamen’s ward status and, 10, 207–9; state and federal power and, 4–6, 17–18, 29, 34–48, 220n2, 223n18, 229n47 Kann, Mark E., 104 Kennedy, Charles Stuart, 154, 161 Kremlin (vessel), 130 labor: courts’ jurisdiction and, 5, 182; desertion practices and, 77–79; legal structures and, 3, 41–43, 211; as punishment, 57–61, 97; seamen as, 9, 11, 42, 64, 74, 81–82, 109–10, 131–32, 196, 217; strikes and, 25, 45, 77, 80, 240n25; terrene-, 9–10, 22, 53, 75, 180, 213, 220n11, 222n8; trade skill and, 21, 101–2, 105–6, 111–14, 123–24, 214, 224n38; violence and, 11, 73–93. See also maritime culture; seamen; ships; United States LaCroix, Pierre, 207 Landells, Walter, 193 land sharks, 25, 185 Latham, Paul, 81 law, the: Act for the Relief and Protection of American Seamen as, 200; bench law and, 5, 7, 26, 28–50, 53, 55–56, 59, 63, 65, 127, 132–33, 144–45; citizenship and, 4, 7, 13, 145, 147–48, 153–60, 166–67, 176–78, 187–89, 209–10; common law and, 31, 45, 75; consular appeals and, 86, 153, 174–75, 178, 181–82; corporal punishment and, 10, 16, 47, 54–60, 71, 76, 104, 246n62; extralegal practices and, 7, 95–98; federal powers and, 3, 5–6, 11–18, 28, 33–51, 152–56, 159–61, 166–73, 178–89, 212–14, 217, 228n29; forecastle law and, 76, 98, 101–20, 137–38, 245n39, 246n60; historical legacy to the U. S. and, 30–31, 42, 62, 219n7, 220n12, 226n15, 231n85; honor and, 101–6, 217; insurrections and, 77–79; labor contracts and, 9–10, 15–27, 41–43, 82; officers’ authority and, 51–72, 80, 115–16, 123–27, 132–35, 142–43; shipboard violence’s arbitration and, 2, 6, 16–17, 43, 87–88, 93, 102, 105, 167, 183–85, 211–12; ship’s logs

272

Index

law, the (continued) and, 88–90. See also labor; officers; seamen; United States; specific acts, decisions, judges, and vessels Laws of Wisbuy, 30 Leander (vessel), 197 Le Havre, 86, 162 Leonidas (vessel), 67 Lester, C. Edwards, 151, 161–66 Lewis, Brister, 58 Lewis, Lyon William, 67 Liberator, 190 Lieb, James R., 155, 171 Linebaugh, Peter, 26, 199 literacy (of seamen), 23 Liverpool, 86, 88, 143, 148, 151–72, 204–5, 215 Livingston, Edward, 154, 163 Lloyd’s of London, 16 Lorena (vessel), 1–8, 76, 81, 91–92, 105, 117, 138, 194–95, 211–13, 216–17 Lorrain, Alfred M., 127 L&W Armstrong (vessel), 58 Lyon, William, 118–19 Mackenzie, Alexander, 64 Macundy (vessel), 82, 193 Madison, James, 36 Magna Carta, 33 maiming. See crimes Maine, 37, 65, 133 Marbury v. Madison, 5 March, J. Howard, 165 Marcy, William L., 156–57 Mare Liberum (Grotius), 220n12 mariners. See seamen Mariner’s Magazine, 201 Marist, Frank L., 34 maritime culture: American literature and, 7, 22–23, 57, 59, 80–81, 131, 139, 199, 203–5, 210; citizenship and, 65, 147–48, 153–66, 175, 187–96, 200, 206, 211, 215; citizenship concerns and, 147–48, 175; colonial America and, 32–34; crews’ international composition and, 187–91, 206–7; extralegal codes and, 95–98; forecastle law and, 76, 98, 101–20, 245n39, 246n60; inland waterways and, 18, 39–40, 223n18, 230n70; insurance issues and, 31, 37–38, 227n19, 228n8; international dimensions of, 4; as labor environment, 12–27, 74, 217; legal

discourses and, 7, 9–11, 15, 17, 28–50, 80–93, 180–81, 183–84, 211–13; literary representations of, 149, 202–10; national character and, 190–210; officers’ authority and, 51–72, 88–92; payment forms and, 15–16, 21, 25; race and, 192–93; sailors’ ranks and, 52–53; scholarship on, 5, 19–21, 23–26, 32–36, 47–49, 52, 74, 96, 105–6, 126, 128, 131–32, 135–36, 154, 161, 163, 175, 184–85, 188, 190, 199, 232n95, 253n6; skilled labor and, 21, 62–64, 98, 101–6, 111–14, 122, 124–25, 224n38; steam power and, 17–18, 25–26, 70, 222n15; terrene work environments and, 9–10, 14–17, 19–20, 22, 24, 53, 75, 180, 213, 220n11, 222n8; trans-Atlantic trade and, 15, 25–26; United States economy and, 13–14, 40, 45, 55, 76, 149, 153; violence and, 1–3, 6, 11–12, 20, 70–93. See also consuls; labor; law, the; mutinies; officers; seamen; United States; specific cases, people, and ships maritime law. See law, the Marriott, James, 53, 92 Marshall, Jacob, 113 Martingale, Hawser, 201, 205–7, 209 masculinity: American character and, 201–2; gentleman status and, 123–28, 132–39, 248n17; honor and, 95–98, 175, 183, 214–15; performativity and, 125, 243n7. See also gender; officers; seamen master-servant relation, 21–22, 62–66, 126, 128, 180, 190, 214. See also labor; seamen; slavery mastery: defi nitions of, 99, 125, 144–45, 237n53, 248n16; gendered conceptions and, 126–27; power relations and, 21–22, 45, 54, 62–66, 118–20, 122–25, 128, 136, 139–42, 240n25; risk-bearing connotation of, 125, 132, 140, 222n8, 227n19; self-mastery and, 98, 106, 125, 129, 214; as skillfulness measure, 21, 62–64, 98, 101–6, 111–14, 122, 124–25. See also labor; officers; seamen mates. See officers Maury, James, 158, 165 McCabe, James, 109 McCerren, George, 108–9 McCowen, George, 137 McGill, Mathias, 177 McKenzie, “Sandy,” 89, 128

Index McNally, Robert, 92 Melville, Herman: American character and, 199, 210; literary representations of sea life and, 57, 59, 80–81, 131, 139, 203–5; seafaring experience and, 22–23 Merchant, William, 92, 136, 141, 144 Merchant and Shipmaster’s Guide (Sawyer), 56, 211 merchant marine. See maritime culture Moad, Henry, 77 Moby-Dick (Melville), 131 Montague (vessel), 114 Montesquieu, 35 Montgomery, C. W., 154 Morison, Samuel Eliot, 22–23 Morris, Richard B., 33, 222n8 Morrison, Alexander, 110 Morrison, Patterson, 121–22, 128 Morrison, Samuel, 84–85 Morris v. Cornell, 151 murder. See crimes Murphy, Stephen, 117, 142 mutinies: defi nitions of, 80; honor and, 95, 128; legal status of, 45, 59, 74, 91, 93, 183, 193; literary representations of, 64, 204; officers’ authority and, 51, 64; records of, 88–90; slave insurrections and, 83, 190–92, 194. See also officers; race; seamen; violence; specific people and vessels My Consulship (Lester), 151 Nagle, Jacob, 144, 206 Napoleonic Wars, 200 Nash, Alanson, 67, 133 Navies. See Britain; United States Navigation Acts (of Britain), 32 Nesbitt, Edward, 114 New York Harbor, 28, 107, 111 New York Herald, 132, 134, 137 New York (jurisdiction), 192, 240n25, 260n39 New York Port Society’s Mariner’s Church, 200–201 Nichols, William, 134 Niles’ Weekly Register, 46 Nordhoff, Charles, 206 North American Review, 134 North American Royal Mail Steam Packet Company, 18 Nova Scotia, 18, 89 N. W. Bridge (vessel), 142

273

officers: authoritative powers of, 10, 12, 21–22, 43–44, 46, 51–72, 74, 80, 92, 101–2, 118–20, 122–24, 126, 130, 135, 137–38, 175, 191, 237n63; competence questions and, 85–86, 90–92; desertions of seamen and, 77–79, 159–60, 208; discipline and, 1–3, 6, 51–72, 93, 115–16, 132–33; gentry status of, 23, 86, 123, 125–28, 130–32, 134, 136, 139, 248n13; honor and, 73, 98–99, 105, 120–45; legal discourse and, 12, 41, 43–44, 46–47, 54, 86–88, 107, 122–23, 127, 167, 236n37; as managers of labor, 18–19, 80–82, 101–2, 112–14, 131–32, 182, 190, 211; mastery concept and, 21, 62–64, 106–7, 132–41; ranks within, 52–53, 65–66, 68–69, 113, 121, 137–38, 140–44; seamen’s litigation against, 56–57, 61, 115–16, 133–34, 167, 182–83, 185–87, 236n37. See also class; discipline; labor; maritime culture; rights (personal); violence Oliver, Paul, 61 Ontario (vessel), 88 Osprey, The (case), 37 Owen, David R., 34 packet ships, 15–18, 24–25, 70, 86–88, 101, 107, 124, 132, 205. See also specific captains and vessels Paine, Ralph D., 132 Paine, Reuben H., 110, 117 Paine, Thomas, 14, 106, 196 Palfrey, William, 155 paternalism: reform movement and, 111–12, 214; seamen’s ward status and, 10, 62–64, 124, 127. See also mastery; reform movement (in the United States); seamen Peabody, George S., 107–8 Pennsylvania (vessel), 152 performativity, 103–4, 243n7 Peters, Richard W., Sr., 36, 135 Philbrick, Thomas, 199, 203, 263n20 Philips, John, 143 Pierce, Franklin, 162, 204 Pilgrim (vessel), 188, 203 piracy, 22, 26, 34, 45, 80, 192, 199–200, 207–9. See also Barbary corsairs Plattsburg (vessel), 183, 192 Polynesian (vessel), 174, 182 Port, Russell, 92

274

Index

Porter, James, 69 Post, Russell H., 140, 144 Powhattan (vessel), 108–9, 137 privateers, 188, 228n30, 231n83, 245n31 prize courts, 228n30 Proal, Augustus, 128 Proctor, John, 67–68 protections. See Seamen’s Protection Certificates Quinn, John, 143 race: citizenship concerns and, 190–92; crews’ composition and, 187–91, 207; discipline and, 83, 191–94; forecastle law and, 103; Jacksonian equality and, 51, 106, 122, 125–26, 147–49, 210, 214–15; shore leave and, 82–84, 111, 186, 191. See also discipline; maritime culture; slavery rations, 22, 75, 80–82, 96, 105, 110–12, 115, 119 Ravens, Cornelius, 188 Redburn (Melville), 80–81, 139 Rediker, Marcus, 26, 199 reform movement (in the United States): labor conditions and, 20–21; mastery concept and, 126–29, 214; nationalistic impulses and, 189; officers’ gentry status and, 99; seamen’s character and, 14, 19–20, 22–23, 75, 104, 112; Second Great Awakening and, 214, 248n18; shipboard discipline and, 55, 67; temperance ships and, 22, 75, 86, 111–12, 125; wards and unfortunates and, 44, 46–47, 104, 149, 177, 200–201. See also alcohol; flogging revolt. See crimes Revolutionary War. See American Revolution Revolution of 1837 (Canadian), 207 Rhodesian law, 30 Richard I (monarch), 30 Richards, Robert, 117–18 Riggs, Solomon S., 78 rights (personal): citizenship and, 6–7, 10, 13, 42, 54, 56, 148–53, 160, 165, 168, 173, 175–76, 180–200, 203, 208, 210–17; judicial decisions and, 42–50, 52, 60, 71, 74–83, 92–93, 98; traditional, 2–3, 17–19, 23–24, 66, 102, 105–20, 132, 139. See also citizenship; forecastle law; law, the; United States

Robertson, William, 1, 48 Robinson, Henry, 113 Robreno, Eduardo C., 36, 48 Ryder, Ebenezer F., 73 Sager, Eric W., 19, 224n38 Sailor’s Magazine, 201 Saladin (vessel), 88–90, 128, 207 Sampson, William, 197–200 Samuels, Samuel, 93, 132, 242n71 Sartelle (vessel), 107, 117, 141–42 saving clause, 35, 38 Sawyer, Frederic, 56, 65–66, 68, 101, 103–4, 189, 211 Scotland, 32 Scott v. Stanford, 178 seafaring. See maritime culture; law, the; United States sea lawyers, 56–57. See also seamen Sea Life (Sullivan, W.), 57, 121, 174, 185, 197 Seaman’s Friend (Dana), 68, 106–7, 138, 140, 204 Seaman’s Hospital, 111 seamen: alcohol and, 14, 59, 70, 86, 89, 97, 107, 111, 128, 149; American character and, 197–210; citizenship and, 65, 147–48, 153–54, 158–59, 165–66, 175, 187– 96, 200, 206, 211, 215; class issues and, 23–24, 86, 123–39, 176, 224n38, 248n13; confi ning the master and, 136–37; consular aid for, 70, 153–54, 157–60, 164–65, 167–69, 173, 176, 182; daily tasks of, 18–19; desertion and, 77, 79, 159–60, 208; discipline and, 46–47, 213; honor and, 2–3, 95–98, 132, 136; labor discourses and, 9, 11, 43–44, 80–85, 108–10, 116, 131–32, 196, 211; legal discourses and, 3, 13, 24, 42, 46, 49–72, 75–76, 82, 86–87, 90–93, 122, 167, 175–76, 180–82, 185–90, 208, 211–12, 236n37; literacy and, 23; litigation against officers of, 56–57, 61, 115, 133–34, 167, 182–83, 185–87; masculinity and, 2, 20, 65, 97, 104–20, 248n17; medical care and, 84–85; moral character of, 14, 19–20, 22–23, 75, 86, 103, 111–12, 125; patriotism of, 176–77, 184–85, 188, 190, 195, 197–210, 216; performativity and, 103–4; race and, 51, 83, 103, 106, 125–26, 147–49, 187–94, 207; reformers and, 14; resistance forms of, 70–93, 101–2, 112–20, 132–33, 135–37,

Index 190–93; rights of, 74; sauciness and, 51, 63, 135, 139, 251n63; self-conceptions of, 6, 56–57, 96, 104, 106–7, 116, 148–49, 180; shore leave and, 82–84, 86, 107–8, 111, 182, 186, 191; shortages of, 109, 116; terrene workers and, 9–10, 14–17, 53, 75, 180, 213, 220n11, 222n8; trade practices of, 19, 24, 75–76, 80–82, 95–98, 101–20, 137–38, 214, 224n38; wages and, 15–16, 21, 25–26, 64, 67, 78–79, 108–9, 133, 159, 182, 222n8, 237n63; ward status of, 10, 22, 44, 55, 62, 64–66, 97, 103–4, 112, 149, 175, 177, 180, 182, 200–201, 215. See also citizenship; honor; law, the; maritime culture; United States; specific people and vessels Seamen’s Aid Society, 48 Seamen’s Friend Society, 200–201 Seamen’s Protection Certificates, 158, 177–79 Second Great Awakening, 214, 248n18 Sedition Act (of 1798), 45 Sherwood, Francis, 205 Shipmaster’s Assistant and Commercial Digest (Blunt), 140 ships: crews’ composition and, 187–91, 207; discipline structures and, 14–15, 46–47, 54–70, 76–77, 107–13, 137–44, 274n74; insurrections on, 45, 59, 74–95, 128, 183, 190–94; logbooks of, 88–90; registration requirements for, 41–42, 54–55, 181, 231n82, 255n40; seaworthiness and provisions of, 82, 86–87, 109–11, 116, 168, 240n25; steam power and, 25–26, 70, 222n15; temperance ships and, 22, 75, 86, 111–12, 125; wheel management and, 112–14; as work environments, 10–11, 15–27, 42, 74, 95. See also maritime culture; officers; seamen; specific ships ship’s articles: citizenship issues and, 159, 168, 255n40; defi nitions of, 1; emergence of, 42; judicial decisions pertaining to, 191–93, 211; as legal contract, 7, 10, 18, 25, 42–44, 76–77, 82, 175, 180–81, 231n85. See also labor; law, the; officers; seamen ship’s cooks. See cooks shore leave, 82–84, 86, 111, 182, 186, 191 Simmons, Nathan S., 60 Skallerup, Harry, 23 slavery, 10, 14, 20, 45–47, 83, 112, 126, 190, 192–94

275

Smith, Aaron, 208 Smith, Aliza Anne, 134 Smith, Asa, 84–85 Smith, Charles, 108, 201 Smith, Daniel, 166 Smith, John, 112 Snell, Steven L., 34, 48–49 Somers (vessel), 64, 204 Southern District of New York (court), 28–29, 48–49, 82 Spence, Andrew, 121–22, 128 Spencer, Philip, 64 Spooner, Lewis, 91 Sprague, Peleg, 6, 11, 28, 37, 38, 40–41, 49, 75, 83, 139, 168, 202, 214 St. Peter (vessel), 60 Stamp Act, 195 State Department (US), 154, 157, 159, 162–63, 167 steam power, 17–18, 25–26, 70, 222n15 Steckley, George F., 226n15 Steel, David, 127 Stewart, Hampton, 82 Stoddard, Charles, 58 Story, Joseph: Dana and, 134; federal power and, 6, 28, 37–38, 49, 75, 214, 223n18, 230n70; images of, 39; intellectual development of, 11; seamen’s ward status and, 64, 66, 182 Stratton, William, 133 Sullivan, Thomas V., 14, 19–21, 206 Sullivan, William: labor relations and, 43, 57, 65, 71, 88, 114–15, 117, 129, 131, 139–40, 174, 184; patriotism of, 197, 206–8; seamen’s character and, 20–21, 24 Swift (vessel), 112–13 Tales of the Ocean (Martingale), 201, 206–7, 209 tars. See Jack Tar (fi gure); seamen Taylor, Edward, 68 temperance ships, 22, 75, 86, 111–12, 125 Thompson, Daniel, 91 Thompson, Mark, 114 Three Sisters (vessel), 207 Tibbs, Thomas, 188 Tolley, Michael C., 34 Tomlins, Christopher, 175 trade. See maritime culture; United States Trask, Benjamin I. H., 115

276

Index

Treatise on the Rights and Duties of Merchant Seamen (Curtis), 55 Treaty of Ghent, 161, 200 Tremont (vessel), 77, 84–85 Trist, Nicholas, 130–31, 164, 171, 211 Truair, John, 102, 189, 196–97, 200–201 True, George, 165 Tuckerman, Joseph, 127 Tully, Samuel, 142, 209 Two Years before the Mast (Dana), 67, 111, 203 Tybex (vessel), 61 Tyng, Charles, 14–15 Unicorn (vessel), 186 United States: American Revolution and, 9, 14, 23, 26, 33–34, 149, 156, 175–77, 195–96, 207; citizenship and, 3–4, 145, 148, 165–66, 174–78, 180–87, 196, 211–12, 215, 259n16; Civil War of, 48, 205, 214; class matters in, 23–24, 86, 97–98, 123–39, 176, 248n13; colonial period of, 32–36, 48, 76, 155–56, 181, 184, 228n29; Constitution of, 4, 10, 18, 29, 35, 147, 155, 178, 181, 184, 190–91, 211, 213, 228n30; consuls and, 3–5, 151–73, 215; Continental Congress and, 33–34, 155–56; economy of, 13–14, 24–25, 40, 45, 55, 76, 149, 153; federal powers of, 3, 5–6, 11, 14, 17–18, 33–34, 38–39, 41–51, 152–53, 156, 159–61, 166, 169–70, 173, 178, 180–82, 184, 187–89, 212–14, 217, 228n29, 230n70; inland waterways and, 18, 39–40, 223n18, 230n70; labor environments in, 9–10, 14–15, 211; literature of, 7–8, 202–10; marine laws of, 9–11, 15–16, 22, 26, 28–30, 35, 41–42, 54–55, 181, 231n82, 255n40; national identity and, 4–5, 10, 175–77, 184–85, 188–90, 197–210, 219n7; navy of, 62, 116, 143, 194, 246n62, 251n69; race and, 51, 106, 122, 125–26, 190–94; State Department of, 154, 157, 159, 162–63, 167; wards of, 10, 22, 44, 66, 97, 103–4, 112, 149, 176–77, 180, 182, 190; white masculine equality and, 51, 97, 106, 122–26, 147–49, 210, 214–15. See also Britain; law, the; maritime culture; officers; seamen United States Circuit Courts, 7, 35, 38, 44,

60–61, 70, 127, 137, 204, 208, 219n9, 229n47, 238n85 United States District Courts, 4, 27, 29, 35–36, 53, 60, 64, 85, 92, 219n9, 228n30, 229n47, 238n85 United States v. Hunt, 66 United States v. Michael Duggan, 73 Valle, James E., 136 Van Buren, Martin, 29, 154, 164–65 Van Ness, William, 29 Vesey, Denmark, 190 vessels. See ships; specific vessels vice-admiralty courts, 32–35, 229n45 Vickers, Daniel, 23–24, 54, 60, 125, 175, 200, 220n11, 223n23, 224n38, 248n16 Vineyard (vessel), 193 violence: flogging and, 16, 46–47, 54–60, 68–71, 76–77, 96, 101, 104, 115, 117, 136, 246n62, 247n74; forecastle law and, 118–20; honor and, 73, 95–98, 101–22; legal arbitration of, 6, 41–45, 54, 59, 65–71, 74, 77, 86–87, 91–93, 117, 183, 186, 193, 211, 247n74; as necessary to order, 11, 20, 53, 68, 76, 93, 107–8, 113, 132–33, 138. See also discipline; masculinity; mutinies; officers; seamen wages, 15–16, 21, 25–26, 64–67, 78–79, 108–9, 133, 159, 182, 222n8, 237n73 Walsh, Vince, 220n11 Wansley, Thomas J., 193–94, 209 Ware, Ashur, 65 Ware, Henry, 133 War of 1812, 7, 29, 135, 158, 161, 190, 200 Washington, Bushrod, 132 Washington, Francis, 1, 7, 76 Washington, George, 156 Washington Irving (vessel), 81 Wendell, Abraham, 130–31 West, William, 136 whaling: desertion from, 78; flogging and, 16, 55, 73, 174, 247n74; medical care aboard, 84; mutineers and, 88–91, 240n25; payment schemes and, 16, 224n34, 247n74; race and, 191–92 Whatley, Stephen, 61 Whitby, Henry, 197–200 White Jacket (Melville), 57

Index Wilkes, Charles, 78 Williams, Ebenezer, 2, 138 Williams, George, 121–22 Williams, John, 112, 183 Williams, Jon, 189 Wiltberger, Peter, 136 Windust, Joseph, 111 Wood, William H., 88

277

Woodbury, Levi, 127, 135, 208 work and workplaces. See labor; maritime culture Worth, Thomas, 88, 91 Yazoo (vessel), 115 Yeizer, Frederick, 112 Yorkshire (vessel), 114