POWER OF CONGRESS TO PROVIDE AGAINST CHOLERA FROM ABROAD.

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]

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