Volume 14 — 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]