Early Government Legislation in the United States:
The Constitution, Direct Taxation, and Seamen
by David McKells
From Number 71 - December 1994
Editor's Note: The following excerpts are taken from pages 232-234 of Chapter
XVIII, "The Insurance of Seamen Against Illness," appearing in Henry
W. Farnam, CHAPTERS IN THE HISTORY OF SOCIAL LEGISLATION IN THE UNITED STATES
TO 1860 (Washington: Carnegie Institution of Washington, 1939). The Constitution
of 1789 authorized no federal power over labor conditions, and prohibited direct
taxation of the new nation's citizens. In 1798, Congress passed, and President
John Adams signed, legislation (United States STATUTES AT LARGE, I, 605-606,
Chapter lxxvii) that exceeded these constitutional boundaries. Although the Whiskey
Rebellion had occurred four years earlier, this action undoubtedly has to stand
as one of the earliest examples of government usurpation. Innocuous as this action
might appear, it clearly demonstrates the impossibility of maintaining "limited"
government for even a short time.
There is not a word in the Constitution regarding either workmen's insurance
or hospitals or the care of sailors. Nevertheless, in the very first Congress,
which met March 4, 1789 it was ordered, under resolution of July 20, "That
a committee be appointed to bring in a bill or bills, providing for the establishment
of hospitals for sick and disabled seamen...." This did not at once result
in any law creating the service, but at least five different bills were brought
up from time to time, and a law was finally passed, July 16, 1798. This law was
in line with the English and Virginian precedents. It provided for the temporary
maintenance of sick or disabled seamen in hospitals or other institutions established
in the ports of the United States, and arranged for the levying of a tax of 20
cents a month for this purpose, to be deducted from the wages of each seaman
and applied to his support when sick. It involved two distinct activities on
the part of the Government, the collection of a direct tax, and the establishment
of hospitals or other agencies for the care of sick seamen. The constitutionality
of this measure does not seem to have been seriously questioned at the time of
its adoption. The ANNALS OF CONGRESS contain no account of any debate on the
subject in the Senate and only a few pages are devoted to the debate in the House.
A number of persons took part in this debate, among them Mr. Sewall of Massachusetts,
Mr. Pinckney of South Carolina, Mr. Livingston of New York. Most of the discussion
seems to have turned upon the question of fairness to the seamen in obliging
them to pay for care which would ordinarily be considered a charge upon public
charity.Somewhat oddly, the chief opponent of the measure seems to have been
Mr. Sewall of Massachusetts, although, as the bulk of the seamen were from New
England, it was thought that they would profit most from a general tax which
would care for them, if they fell ill in the South, while the people of the Northeast
would be relieved of certain demands upon their charity. The constitutionality
of the measure seems to have been questioned only by Mr. Varnum, who said, regarding
the measure, that he did not know how he would reconcile it with that clause
of the Constitution which says "that no capitation or other direct tax,
shall be laid, unless in proportion to the census or enumeration directed to
be taken." This objection, however, did not seem to make much impression,
nor did it prevent the bill from being passed. In 1849, more than 50 years after
the first act, the justification of the act was thus stated in a report of a
Congressional commission: "This is almost the only direct tax laid by government.
The power to lay it has always been granted on account of the highly charitable
object had in view. From the income of a proverbially improvident class in the
community a specific deduction has been madeand government becomes self-constituted
guardian and trustee. ... As the questionable legality of the taxation is laid
aside by common consent, it is only asked that, while it is continued, it may
be rendered distinct in all its operations."
Its practical justification, apart from the question of its constitutionality,
lay, as stated above, in the fact that sailors are improvident and irresponsible
and that their vocation is peculiarly dangerous. It takes them away from home,
few of them have families who can care for them in illness, and even if they
have, they are liable to be sick at a distance from their regular homes. The
fact that their work is performed without access to the ordinary diversions of
the landsman makes them especially lavish in paying for amusement when they have
a few days on shore, so that they seldom save money, and if they are desirous
of saving, they have no safe place in which to deposit their funds. Hence they
are liable to become the prey of swindlers and robbers. They have not even a
pauper settlement, if taken sick away from home, and as a rule pay no direct
State taxes. The consequence is that the Government has not only made this provision
for those that are sick, but has also enacted elaborate laws to protect them
against imposition and abuses.
There was another reason for the interest of the Government in sailors. It
seemed very important to build up a strong merchant marine in order to provide
a supply of seamen for the men-of-war in case of hostilities with other nations.
The law was, therefore, not simply a piece of social politics, but also of naval
politics, a combination of humanity and national defense which is by no means
unusual in the history of labor legislation. The first child labor law of Prussia
was inspired by the observation that the recruits for the army in the textile
districts were deteriorating in size and strength, and similar considerations
have been used in England as an argument for improved labor laws.
