Congressional Globe, 39th Congress, 1866
May 8, 1866
Sen. Zachariah Chandler of Michigan
Sen. Henry B. Anthony of Rhode Island
Sen. Daniel Clark of New Hampshire
Sen. James W. Grimes of Iowa
Sen. Ira Harris of New York
Sen. Timothy O. Howe of Wisconsin
Sen. Edgar Cowan of Pennsylvania
ASIATIC CHOLERA. * * *
The Secretary read the words proposed to be inserted in lieu of the original resolution, as follows:
That it shall be the duty of the Secretary of War, with the cooperation 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 cause a right quarantine against the introduction into this country of the Asiatic cholera through its ports of entry whenever the same may be threatened by the prevalence of said disease in countries having direct commercial intercourse with the United States.Second. 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.
Third. That said Secretaries are hereby authorized to use the means at their command to carry out the foregoing provisions.
Fourth. That it shall be the duty of the Secretary of State to open a correspondence with the foreign powers whose proximity to the United States will endanger the introduction of Asiatic cholera into this country through their ports and territory, soliciting their cooperation with this government in such efforts to prevent the introduction and spread of said disease.
Mr. CLARK. That resolution is a very general statement, and I shall be glad to hear from the chairman of the Committee on Commerce what is proposed to be done under it, and what is the plan, if there is any, before the committee.
Mr. CHANDLER. The intention is to establish a uniform system of quarantine throughout the whole country. The proposition is drawn with very great care, and is deemed by the most eminent physicians of the United States to be an efficient plan. We have had before the committee some of the most eminent surgeons of the country; among others, the quarantine surgeons of New York; and the intention is to make the system uniform throughout the United States, and place power in the hands of the Secretaries to enforce it.
Mr. ANTHONY. I ask the Senator from Michigan the meaning of that part of the resolution which declares that the Secretary of War and the Secretary of the Navy shall use the means at their command to enforce these provisions. Does that mean that they shall use military power, the Army and the Navy, to enforce quarantine?
Mr. CHANDLER. They are to employ the vessels at their command, and all the powers at their command may be used, if necessary. I suppose that in the case of New Orleans, or any southern port where soldiers are employed, and it may be necessary to use them as a guard, they could be used under this resolution. In other words, all the powers at the command of the Secretaries may be used at their discretion.
Mr. ANTHONY. Can they declare martial law?
Mr. CHANDLER. They may use any power requisite to stop this cholera.
Mr. ANTHONY. I would rather have the cholera than such a proposition as this. [Laughter]
Mr. CLARK. It seems to me that this resolution is nothing more than making the Secretary of War and the Secretary of the Navy and others a board of health for the whole country, with the resources of the whole country at their command to carry it out....
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Mr. GRIMES. I understood from the Senator from Wisconsin that this bill conferred the power on this commission, these three Secretaries, to establish quarantine regulations similar to those they have in New York, although not so great an extent perhaps, because to such an extent it might not be necessary, anywhere on this continent. The bill does not require that the Government shall adopt the quarantine officers of the State of New York. Oh, no; they are are to be new appointees, appointed under this law. The organization of the city of New York or the State of New York is to be entirely ignored and is ignored by this bill. We are to have another batch of office-holders, innumerable in number if it is to be extended uniformly over the country according to the idea of the Senator from Wisconsin, which I understand is the idea of the committee.
I have not any such fear of the cholera as to induce me to vote for a bill like this. I believe that it will be attended with infinitely worse consequences to the country than the most malignant type of cholera that ever prevailed upon this continent. As my friend near me says, one thing would certainly result from it, and that is that it would give the cholera to the Treasury of the United States if it should be enacted into a law. [Laughter.]
... There is nothing, according to the provisions of this bill, as I understand it, that it does not authorize the three Secretaries to do. I trust that the time has gone by when we are going to be called upon to legislate in the manner in which this bill proposes. During the prevalence of the war we drew to ourselves here as the Federal Government authority which had been considered doubtful by all and denied by many of the statesmen of this country. That time, it seems to me, has ceased and ought to cease. Let us go back to the original condition of things, and allow the States to take care of themselves as they have been in the habit of taking care of themselves.
Mr. HOWE. Take care of their own cholera!
Mr. GRIMES. Yes, sir, take care of their own cholera. My state will take care of its own cholera. I do not want to have a cordon, as they call it, against the cholera established between my state and the city of Chicago. I do not want officials, either of the Treasury or of the Army or the Navy out there to prevent a citizen from traveling from one place to another, either on the lakes or on the Mississippi river, which authority is conferred by the provisions of this bill. In my locality we are familiar with this disease; we know that it has not got such terrors as it seems to have to gentlemen who are not familiar with it, and we do not want to have our liberty restrained, nor do we want to have our privilege of locomotion restrained, nor do we want to have the Treasury afflicted by any such bill as this.
Mr. COWAN. I can only add to what has been so well said by my eloquent friend from Iowa, that in the present condition of the medical science nothing can be more absurd that this legislation. If there is any one thing I think well settled, it is that cholera is not contagious in that sense of the word which would enable you by means of some legislative enactment to keep it out of the country....
"Justice James Moore Wayne of Georgia, last survivor of Marshall’s Court, remained; until his death in 1867, he voted to sustain all the war measures the Court passed judgment on."
When Justice Stephen Johnson Field was appointed on May 20, 1863:
1. [MD] Roger Brooke TANEY (1836-1864)
2. [GA] James Moore WAYNE (1835-1867)
3. [TN] John CATRON [1837-1865]
4. [NY] Samuel NELSON [1845-1872)
5. [PA] Robert Cooper GRIER (1846-1870)
6. [ME] Nathan CLIFFORD (1858-1881)
7. [OH) Noah Haynes SWAYNE (1862-1881)
8. [IA] Samual Freeman MILLER (1862-1877)
9. [IL] David DAVIS (1862-1877)
The legislation of 1801 and 1802 had been the product of political infighting. The same was true in 1866, when Congress sought to deny President Andrew Johnson an opportunity to submit nominations for Court openings by providing that no vacancies were to be filled until the number of seats on the bench had been reduced to seven. As it turned out, the number never fell below eight. Meantime, in 1869, President Grant found a need to "pack" the Court, and Congress obliged by building the number back up to nine.
The reason for the "packing" was the Court's unreconstructed attitude toward the constitutionality of the Civil War legal tender acts, which had dealt with a financial emergency by making paper money ("greenbacks") acceptable on a parity with gold and silver in payment of certain obligations. A seven-judge Court held the law unconstitutional by a margin of 4-3, on February 4, 1870 (Hepburn v. Griswold, 8 Wall. 603). Grant, whose nominations for the two new positions authorized by Congress had been hanging fire, had his nominees (William Strong of Pennsylvania and Joseph Bradley of New Jersey) confirmed within a month following this first Legal Tender Case. Fifteen months later, on May 1, 1871, the two new jurists joined the former minority of three to form a 5-4 majority upholding the legislation in the Second Legal Tender Case (Knox v. Lee, 12 Wall. 457).