SPEECHES IN THE SENATE, ON A JOINT RESOLUTION TO PREVENT THE
INTRODUCTION OF CHOLERA INTO THE PORTS OF THE UNITED STATES, MAY 9, 11,
AND 15, 1866.
May 9th, the Senate having under consideration a joint
resolution, which had passed the House of Representatives,
to prevent the introduction of cholera into the ports of the
United States, Mr. Sumner said:--
MR. PRESIDENT,--I must say, that, reflecting upon this question, I
find that I travelled with my friend from Maine [Mr. MORRILL] through
his inquiries and his doubts, but it was only to arrive substantially
at the conclusion of my friend from Vermont [Mr. EDMUNDS]. I thought
that the criticism of my friend from Maine was in many respects, at
least on its face, just. I went along with him, and yet I hesitated in
adopting the conclusion he seemed to intimate. I doubt, if we proceed
under the House resolution, whether we shall do the work thoroughly.
I doubt whether that resolution can be made sufficiently effective.
Indeed, I may go further, and say I am satisfied that it will not be
efficient for the occasion. We then have the substitute proposed by
our own Committee. Against that there is certainly the remark to be
made, that it is novel. I am not aware that any such proposition has
ever before been brought forward; but certainly it has in its favor
the great argument of efficiency. Yet the question remains behind, to
which the Senator from Maine has directed attention,--whether this
proposition is not something more than even a novelty,--whether it is
not a departure from just principles. I am not inclined to say that
it is anything more than a novelty. I admit that it is such. It does
invest the Government with large and perhaps unprecedented powers, in
order to meet a peculiar case, where a stringent remedy must be applied.
But, as the Chairman of the Committee on Commerce suggests, the powers
are temporary. I am not ready to say that such powers cannot be
intrusted to the Government. I believe they can be. But while I agree
in that, and am ready to vote accordingly, yet I should like to know
from the Chairman why these powers are to be placed under the direction
of the Secretary of War rather than of the Secretary of the Treasury.
Mr. Chandler, of Michigan, the Chairman, said that they were
placed jointly in three Secretaries, the Secretary of War, the
Secretary of the Navy, and the Secretary of the Treasury. After
briefly considering this organization, Mr. Sumner proceeded
further.
* * * * *
May 11th, Mr. Sumner spoke again.
I should not say anything now, but for the remarks of my friend from
New York [Mr. HARRIS], who seemed at a loss where to find the power
it is proposed to exercise. He was so much at a loss that he went
beyond the bounds he usually prescribes for himself in this Chamber,
and indulged in unwonted jocularity. Not content with showing, as he
supposed, that the power did not exist where it was said to exist, he
asked, with ludicrous face, whether it was not found under the clause
to guaranty a republican form of government. I am very glad to find
that my excellent friend is looking to that clause of the Constitution.
It is a clause very much neglected, but to my mind one of the most
potent in the whole Constitution,--full of beneficent power, which it
would be well, if the Government, at this crisis of its history, were
disposed to exercise. Here are waters of healing for our distressed
country. Follow this text in its natural and obvious requirements, and
you will have security, peace, and liberty under the safeguard of that
great guaranty, the Equal Rights of All.
But I must remind my friend that there is no occasion for any resort
to this transcendent source of power at the present moment. The power
from which this resolution is derived seems very obvious. My friend
interrupts me to say that it is the war power. I say it is very
obvious, and I will show him in a moment, that it is not the war power.
It is a power that has been exercised constantly, from the beginning of
our history, with regard to which there can be no question,--because
it is embodied in one of the clearest texts of the National
Constitution,--because it has been expounded by a series of decisions
from our Supreme Court, which are among the most authoritative in our
history. It is the power to regulate commerce. My friend smiles; but
would he smile at the Constitution of his country?
“The Congress shall have power to regulate commerce with
foreign nations and among the several States.”
By the present resolution it is clearly proposed to regulate commerce
with foreign nations. Have not all regulations with regard to
passengers been under this power? Have they not all been to regulate
commerce with foreign nations? Can there be any doubt? Is it not as
plain as language can make it? Why, Sir, ever since I have been in
Congress we have had annual bills for the regulation of passengers
coming into our ports,--bills of different degrees of stringency,
laying one penalty here and another penalty there, all in the execution
of this unquestionable power.
MR. GRIMES. Will the Senator be kind enough to look at the
second clause of the amended proposition, where it says,--
“That he”--
that is, the Secretary of War--
“shall also enforce the establishment of sanitary cordons
to prevent the spread of said disease from infected
districts adjacent to or within the limits of the United
States”:--
not confining it to the lines between the States, but giving
him authority to establish cordons within the jurisdiction of a
State. I should like to know where the Constitution authorizes
such a thing as that.
MR. SUMNER. I am obliged to my friend even for interrupting me
to call attention to that section, though he will pardon me,
if I do not answer him at this moment, but when I come to that
part of the resolution.
MR. GRIMES. Any time will do, so that we get it.
MR. SUMNER. You will have it all.
I am dwelling now on the power derived from the positive text of the
Constitution to regulate commerce with foreign nations. I say, that, in
the execution of that power, we have undertaken to apply all manner of
restrictions and regulations to the transportation of passengers. We
have gone so far as to provide for the quantity of water on board each
ship in proportion to every passenger. We have subjected every ship to
regulations while at sea, and again to other regulations after arriving
in port. The exercise of the power is by practice placed absolutely
beyond question. Then it is intrenched in the very best judicial
decisions of our country. I submit that no person can raise a question
with regard to it.
MR. MORRILL. About regulating the importation of passengers
from foreign countries nobody raises a question or a doubt.
This is a question of quarantine, in its character police. Is
there any precedent in the history of the United States where
that power has been exercised by the General Government?
MR. SUMNER. I am very glad the Senator presses that question. I meet
it. Does the Senator mean to suggest that the same power that can reach
the sea, and determine even the quantity of water in the hold for each
passenger, cannot apply the minutest possible regulation when that same
ship arrives in the harbor?
MR. MORRILL. Will my friend allow me to answer him right there?
MR. SUMNER. Certainly.
MR. MORRILL. I maintain, that, when the passenger is landed,
and comes within the limits and jurisdiction of the State, and
within its police power, the commercial power of the Government
ceases at that point, and the treatment of the passenger
thereafter is within the police power of the State exclusively.
MR. SUMNER. I think the Senator goes beyond the decision of the
Supreme Court. He overrules that decision.
MR. MORRILL. I am precisely on a line with the License cases,
in which the principle was applied to the importation of
liquors.
MR. SUMNER. At a certain stage, I admit, the police power of the State
may intervene; but I do nevertheless insist, as beyond question, that
the power of the United States is complete over every passenger vessel
arriving in the harbor, so that it may be subjected to any regulations
in the discretion of Congress for the public good with reference to
passengers. Of course, this discretion is to be exercised wisely for
the public good, that the public health may not suffer. Strange, if the
National Government, which is our guardian against foreign foes, may
not protect us against this fearful enemy.
MR. MORRILL. I do not deny that; I agree to that.
MR. SUMNER. Very well.
MR. MORRILL. Now my query is, Can the power of commerce, that
power which regulates the passengers on their passage to
this country, follow the passengers entirely into the States
and overrule the internal police of the States? That is the
question.
MR. SUMNER. The Senator puts a question running into that already
propounded by the Senator from Iowa, and to which I was coming in due
course of time. I have already arrived at it. I was illustrating the
power that the Government would have in the harbor; and now let me give
another illustration, familiar to my friend: it is with reference to
goods. I need not remind the Senator, that, when goods arrive, subject
to duties, the custom-house exercises its control, according to the
prescription of law, not only while the goods are water-borne, but
after they have been landed; and if they have been landed in violation
of the law, it pursues them even into the interior.
MR. CHANDLER. To the Rocky Mountains.
MR. SUMNER. It is enough to say that it pursues them into the interior.
The National Constitution was not so absurd, nor have our courts
been so absurd in its interpretation, as to recognize a power in the
custom-house merely at the door of the granite structure, and to
require that it shall stop there. No, Sir: the power must be made
effective. We have made it effective with reference to goods. We have
also, to a certain extent, made it effective, through decisions of the
Supreme Court, with reference to passengers. It remains that we should
carry it one stage further, and, for the public weal, and to secure the
public health, which is a large part of the public weal, insist that
this same power shall be invoked as in the pursuit of goods. I cannot
see the difference between the two cases. I cannot doubt that the
power over goods imported at our custom-house under Acts of Congress
and the power over passengers introduced into this country under Acts
of Congress are both derived from the same source, and you can find
no limitation for one and no expansion for one which is not equally
applicable to the other. I insist, therefore, that on this simple text
you find ample power. You must annul the text, or at least limit it by
construction and dwarf its fair proportions, or the power of Congress
to provide against cholera is perfect.
But as Senators have such scruples about the second clause of the
resolution,--
“That he shall also enforce the establishment of sanitary
cordons to prevent the spread of said disease from infected
districts adjacent to or within the limits of the United
States,”--
I will add, this clause may be treated under two different
heads,--first, as ancillary, from the nature of the case, to the power
under the clause to regulate commerce with foreign nations. From the
nature of the case, if you have the power to shut out cholera from
the ports, you must be intrusted with an associate power to follow
this same enemy even into the interior, precisely as you follow goods
escaping the exercise of your power in the ports. I am willing,
therefore, to put it even on the first clause of the constitutional
provision, calling it simply ancillary. But I do not stop there; for,
associated with this clause, and constituting part of the provision,
are the words, “and among the several States.” Congress has power
to regulate commerce among the several States. Now, Sir, assuming
that commerce is, as described or defined by our Supreme Court,
intercourse among men, embracing the transportation, not only of goods,
but of passengers, and applicable to everything that comes under
the comprehensive term “intercourse,”--giving to it that expansive
definition which I think you will find in the decisions of the Supreme
Court, I ask you if there is not under that second clause ample
power also to regulate this matter. Congress has power to regulate
commerce, communication, intercourse, transportation of freight and
transportation of passengers among the several States. To make that
effective, you must concede a power such as appears in the clause to
which the Senator from Iowa has directed my attention. There is no
reference here to State lines; and why? From the necessity of the case.
The disease itself does not recognize State lines. The authority which
goes forth to meet the disease must be at least on an equality with the
disease, and can recognize no State lines. How vain to set up State
rights as an impediment to this beneficent power!
I therefore conclude that the power over this subject is plenary,
whether you look at the first clause of the Constitution to which I
have called attention, relating to foreign commerce, or the second
clause, relating to commerce among the States. It is full; it is
complete. Hence I put aside the constitutional objection, whether used
seriously or jocosely, as it was perhaps by my friend from New York; I
put it aside as absolutely out of the question and irrelevant. Congress
has ample power over this whole subject. And, Sir, permit me to ask,
if it had not ample power over it, where should we be as a government
at this time? Can we confess that a great government of the world must
fold its arms, and see a foreign enemy--for such it is--crossing the
sea and invading our shores, yet we unable to meet it? I do not believe
that this transcendent republic is thus imbecile. I believe, that,
under the text of the National Constitution, as well as from the nature
of the case, it has ample powers to meet such enemy.
And this brings me, Sir, to the proposed amendment of the Senator
from Vermont [Mr. EDMUNDS]. He moves to strike out the clause to which
I called attention the other day, and to substitute certain words
creating a commission. I objected to this clause the other day; I will
read it now:--
“That it shall be the duty of the Secretary of War, with the
coöperation of the Secretary of the Navy and the Secretary of
the Treasury, whose concurrent action shall be directed by the
Commander-in-Chief of the Army and Navy, to adopt an efficient
and uniform system of quarantine against the introduction into
this country of the Asiatic cholera.”
I objected, it may be remembered, to this clause, as placing the bill
under the patronage of the war power. I did not think it needed that
patronage, though I was willing to admit that it might need sometimes
the exercise of the war authority; but I did not think it needed to
be derived from the war power. It was not from the nature of the case
an exercise of this power, but it was clearly derived from the power
over the commerce of the country; and I regretted, therefore, that the
framers of the bill had seemed to put the war power in the forefront.
The Senator from Vermont meets that suggestion by an amendment to the
effect that a commission shall be constituted, embracing the Secretary
of War, the Secretary of the Navy, and the Secretary of the Treasury. I
have no particular criticism to make upon the amendment. If the Senate
consent to it, I shall certainly be disposed to join. But I think a
better form still may be adopted, and one placing what we do more
completely and unreservedly under that power of the Constitution from
which I think it is derived,--that is, the power to regulate commerce.
I would therefore propose that the duty shall be confided primarily
to the Secretary of the Treasury, who, in the exercise of his powers,
shall be aided by the Secretary of War and the Secretary of the Navy,
under the direction of the President of the United States.
…
In making this change, we shall simply enlarge and expand the existing
powers of the Secretary of the Treasury. He is now the head of the
custom-house; he regulates the passenger system. Go further, and give
him these additional powers, that shall enable him, so far as he can,
to prevent the introduction of disease into the country. All that we do
will be in harmony with the practice of the Government, and I believe
above question. The Government, in the exercise of admitted powers,
will be, I trust, more than a match for the cholera.
May 15th, Mr. Reverdy Johnson replied, when Mr. Sumner
rejoined:--
The Senator from Maryland has referred us to the decisions of the
Supreme Court which in his opinion bear directly on this point; but,
Sir, with the ingenuity of a practised lawyer, he has omitted to
remind us of that decision which, perhaps, of all others, is the most
applicable. With the permission of the Senate, I will make up for the
deficiency of the learned Senator, or at least endeavor to do so. I
refer to the case of _The United States_ v. _Coombs_, in the twelfth
volume of Peters’s Reports. There you will find one of the able and
well-considered judgments of the late Mr. Justice Story, particularly
treating this question. By “this question” I mean the power of Congress
under the National Constitution to regulate commerce with foreign
nations and among the several States. I will read a passage from his
judgment, page 78:--
“The power to regulate commerce includes the power to regulate
navigation, as connected with the commerce with foreign nations
and among the States. It was so held and decided by this
court, after the most deliberate consideration, in the case of
_Gibbons_ v. _Ogden_, 9 Wheaton, 189 to 198.”
All that the Senator will of course recognize; for, indeed, he has
admitted as much in what he has said and cited. The learned judge then
proceeds:--
“It does not stop at the mere boundary-line of a State; nor
is it confined to acts done on the water, or in the necessary
course of the navigation thereof. It extends to such acts,
done on land, which interfere with, obstruct, or prevent the
due exercise of the power to regulate commerce and navigation
with foreign nations and among the States. Any offence which
thus interferes with, obstructs, or prevents such commerce and
navigation, though done on land, may be punished by Congress,
under its general authority to make all laws necessary and
proper to execute their delegated constitutional powers.”
Those are the pointed words of Mr. Justice Story.
MR. MORRILL. Will the Senator allow me to ask him a question?
MR. SUMNER. Certainly.
MR. MORRILL. That is, to regulate commerce.
MR. SUMNER. To regulate commerce.
MR. MORRILL. Does the Senator mean to be understood that a
regulation in regard to cholera, a disease, is a regulation of
commerce?
MR. SUMNER. I do, certainly.
MR. MORRILL. Then the cholera is commerce?
MR. SUMNER. No; cholera is not commerce, but cholera comes from
passengers.
MR. MORRILL. Then is the regulation of it commerce, or is it
the treatment of a disease? Is it a regulation of health, or a
regulation of commerce?
MR. SUMNER. It is connected with commerce, and must be treated
in its appropriate connection.
…
Nor do I understand that this is an exercise of power for the first
time. It is nothing more than a new application of an old power, or
an expansion of an old power to a new condition of circumstances, and
perhaps I may say enlarging the old power, because the circumstances
require the enlargement. I do not understand that any new fountain is
opened. No new source is drawn upon; no new principle is invoked. We go
back to the original text so often applied in kindred cases, and insist
upon its application now.
If I understand the argument of the Senator, it is that all quarantine
regulations belong to the States exclusively. Am I right in that?
MR. MORRILL. Most of them.
MR. SUMNER. The Senator, I understand, says they belong
exclusively to the States.
MR. MORRILL. Yes.
MR. SUMNER. If I carry the idea of the Senator still further, it
would be to say that the Government of the United States might make
all possible regulations with reference to passengers water-borne,
but could not touch them with any sanitary regulation the moment they
entered our harbors. Such is the inevitable conclusion; and permit me
to say, it is an absurdity. I will not consent thus to despoil the
National Government of a power which to my mind seems so essential to
the national health.
After quoting the statute of February 25, 1799, entitled “An
Act respecting Quarantines and Health Laws,” by which United
States officers are directed to assist State officers in
enforcing the quarantine, Mr. Sumner proceeded:--
Now I submit that this statute of 1799 relating to quarantine contains
a jumble or confusion not unlike that in the Fugitive Slave Act of
1793,--that is, a recognition of a concurrent jurisdiction in the State
and National Governments over this question. The measure now before the
Senate would follow out the general principle or reasoning of later
years, and assure the jurisdiction to the Federal, or, as I always like
to call it, the National power. It would secure it to the National
power; and to my mind it properly belongs to the National power, and
no ingenuity of the Senator from Maine can satisfy me that it should
not be intrusted to the National power. It is essentially a National
object, and can be performed effectively and thoroughly only through
the National arm. If you intrust it to the different local authorities,
you will have as many systems as you have States or communities, and
you cannot bring your policy to bear with that unity which it ought
to have in dealing with so deadly a foe. You should be able to carry
into this business something of the combination and directness of
war. At the same time I beg to say, as I have heretofore said, that
I do not recognize this in any respect as a military remedy. I treat
it absolutely as commercial; I derive it from a commercial power; and
by the amendment which I have introduced I would place it under the
direction of the Secretary of the Treasury.
The amendment of Mr. Sumner was agreed to without a division.
The substitute of the Committee, thus amended, was lost,--Yeas
17, Nays 19. The original House resolution was then amended in
conformity with Mr. Sumner’s amendment, by inserting “Secretary
of the Treasury” instead of “President,” and passed,--Yeas 27,
Nays 12,--and afterwards approved by the President.[29]