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.