^^S^SSST 
 
 HX64076415 
 RA436EU71880 Relations of communi 
 
 RECAP 
 
 Eiisits 
 ...Relations of communities and states during 
 
 epidemics • 
 
 HA436 Eu7 1B90 
 
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 THE LIBRARIES 
 
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RELATIO N S 
 
 OF 
 
 nities and States 
 
 DURING EPIDEMICS 
 
 AN ADDRESS BY THE 
 
 HONORABLE JAMES B. EUSTIS, 
 
 DELIVERED AT THE 
 
 COMMENCEMENT 
 
 OF THE 
 
 Medical Department oi the University of Louisiana, 
 
 NEW ORLEANS, MAECH 19, 1880. 
 
 NEW ORLEANS: 
 
 L. Graham, Print, 127 Gravier street. 
 
 1880. 
 
to 
 
 
 AN IMPORTANT QUESTION. 
 
 Commercial Intercourse between Communities 
 and States During Kpidemies. 
 
 Address of Ex-Senator Kustis at the Medical 
 College Commencement. 
 
 Hon. James B. Enstis yesterday delivered the follow- 
 ing able and interesting address at the Commencement 
 Exercises of the Medical College : 
 
 I have felt an unusual embarrassment in selecting a subject 
 upon which to address you, as my education and habits of 
 thought do not qualify me to venture to instruct you upon any 
 scientific subject; but there is a public question involving such 
 vast interests, and to which the medical profession bears so 
 peculiar a relation of responsibility, that if I succeed in giving 
 it due prominence for discussion by others, I will feel that I 
 have measureably acquitted myself of the difficult task imposed 
 by my acceptance of the complimentary invitation to address 
 you. 
 
 The great problem to which I allude, which in my judgment 
 involves the material destinies of the South Mississippi Valley, 
 is the relations of communities aud States during epidemics. 
 If this were singly a question of the origin and spread of a 
 disease, of the cure and prevention of a disease, a question of 
 individual and public health, I would leave it to the domain of 
 medical polemics, recognizing that those who are educated to 
 ^ master a science so remote from vulgar comprehension, a 
 ^ science governed by laws so incomprehensible and mysterious, 
 
2 
 
 have a right to have these questions disposed of by the 
 authority of their professional judgment. 
 
 If it were simply a question of humanity, of moral conduct 
 and moral responsibility, I would leave its discussion to those 
 whose high and sacred prerogative it is to preach peace on 
 earth, good will to men, and man's duty to man, and to his God. 
 
 It has bearings beyond the limits of exclusive sanitary 
 considerations, and beyoDd the obligations of moral duty and 
 the comity of good neighborhood, and in endeavoring to 
 present its important and varied legal and commercial aspects, 
 I disclaim any purpose to assail any theory supported by 
 medical men, or to say anything that is intended to weaken 
 human sympathy for human distress. 
 
 On the one band we have a strong popular belief, a fanatical 
 popular alarm — I use the word fanatical to denote its earnest- 
 ness — an undefined popular right of self-preservation, which 
 finds its emphatic manifestation in what are known as shot-gun 
 quarantines. On the other hand we have the large, increasing 
 and peremptory demands of commerce, which means intercourse 
 with its necessities so closely interwoven into the very conditions 
 of our daily existence, that any prolonged or unreasonable 
 interference with its freedom, makes us feel as though the 
 circulation of our own blood was hindered. For this is an age 
 of commercial activity, commercial enterprise, commercial 
 development. The most striking manifestation of American 
 energy and American civilization is the freedom, facility and 
 rapidity of commercial intercommunication, and its free enjoy- 
 ment is a fundamental condition in the economy of American 
 life. No one can escape the aggressive, far-reaching and 
 beneficent power of commercial expansion. Its blessings are 
 like the rains from heaven. A community that seeks to isolate 
 itself in the wildest and most remote spot in our country to 
 foster in its seclusion a peculiar creed, as soon as it is numerous 
 enough to trade, is brought against its will into direct commu- 
 nication with the great commercial centres of this continent. 
 
 Commerce has had many struggles in the history of human- 
 ity, and its triumphs and ascendency are due to its brave re- 
 sistance to the tyranny of unreasonable restraints ; it has ever 
 
v 3 
 
 been friendly to liberty ; it powerfully contributed to the over- 
 throw of feudalism ; it has compelled by wars barbarous nations 
 to make commercial treaties, and to arrest its progress and 
 development to-day is to extinguish the brightest torches that 
 illumine modern civilization, and no people, unless they wish 
 to rejoice in their own decadence, can forget the wise admoni- 
 tion of its great friend and patron, Eichard Cobden, that to be 
 free and to be prosperous we must give wings to commerce. 
 It is, therefore, not surprising that under all circumstances, 
 under all conditions, in every exigency, even during epidemics, 
 commerce should demand that its great interests shall be pro- 
 tected by some uniform and authoritative system of regulations, 
 some consistent and rational code of conventional laws to 
 determine the rights and relations of communities during 
 epidemics, based upon some common understanding of mutual 
 privileges and mutual protection. 
 
 For every emergency that disturbs society we are supposed 
 to have laws ; we have laws of war as well as laws of peace? 
 and it would seem that when society is agitated by some 
 undue excitement, convulsed by some frenzy, seized by some 
 mania, swayed by some superstitious belief, that then does the 
 requirement of some stable and controlling authority become 
 the more necessary and the more imperative. Such is not the 
 case during the period of epidemics. 
 
 Every community makes unto itself a law, or rather a declara- 
 tion, which it enforces, based upon its views of its own rights, 
 its own powers and its own scientific speculations, and under 
 the operation of this independent and irresponsible action, 
 warlike notifications of non-intercourse follow, and we have a 
 practical suspension of the authority of civil government as 
 regards its efficiency to protect what are believed to be con- 
 stitutional commercial privileges. Thus is presented a peril- 
 ous antagonism between two great forces in society, commercial 
 rights and the methods of a community to protect itself against 
 the introduction of a contagious or infectious disease, a con- 
 flict full of perplexities and most difficult of adjustment. But 
 as we are the denounced and offending community, as we are 
 made the victims of commercial ex-communication by the 
 
utterance of that terrible curse of separation as against a 
 leprous community, as it is against us that this war of non- 
 intercourse is declared, with its incalculably ruinous con- 
 sequences, it becomes our duty to discover the reason, the law, 
 the remedy, if any, for this abnormal condition of affairs which 
 threatens to cloud our brightest hopes and to contradict the san- 
 guine prophecies of our future greatness and wealth. Let it 
 be announced that an epidemic exists in this city, and judging 
 from the past, what may we expect to witness? Warlike 
 preparations on every side, military campaigns inaugurated 
 that would do credit to the genius of Yon Moltke, proclama- 
 tions of non-intercourse issued by whom we do not know, but 
 enforced, artillery planted on the banks of the Mississippi 
 Eiver, not by the authority of the United States Government, 
 not by the authority of even a State government, but by some 
 local committee to warn steamboats freighted with merchan- 
 dise and healthy passengers not to make a landing. When 
 Spain owned the banks of the Mississippi, it was precisely for 
 such a performance with regard to flatboats that the United 
 States Government threatened to declare war against that 
 power ; and in 1861 it was the determination to enforce the 
 freedom of the navigation of the Mississippi Eiver, which 
 includes the right to land and trade, that made the yeomanry of 
 the West swarm into resistless armies. Ealroad corporations 
 are notified not to stop at stations that they own ; sometimes 
 they are required to increase their rate of speed, and on that 
 condition can pass over their own property. At certain stations 
 armed men take possession of trains, close the windows, hold 
 the passengers in military duress, and deny to them the right 
 to breathe fresh air. Upon the highways in our State sentinels 
 with loaded guns are posted, skirmishers are deployed to 
 resist the invasion of the enemy, that is, a person or a parcel 
 of merchandise coming from New Orleans, unless it be playing 
 cards, whisky or tobacco, which under this new military code 
 are not, I believe, considered contraband of war, and under 
 these arbitrary and unauthorized acts, this assertion of irre- 
 sponsible power, these military proceedings, commercial rival- 
 ries and commercial jealousies wearing the saintly robes of 
 
public health, make New Orleans play the role of Cinderella to 
 such loviug sister cities as Mobile aud Galveston. In the 
 meantime not a State speaks ; this anarchy is produced by the 
 edicts of towns, local committees, municipalities and police 
 juries. 
 
 Can society continue to exist under such conditions ? 
 
 No one claims that an infected person has the right to adver- 
 tise in persona and propagate a disease. No one claims the 
 right to trade in and consign a disease. The complaint is not 
 that an actually infected person or thing is treated otherwise 
 than he should be. The complaint is that a whole community, 
 without discrimination, is denounced and anathematized by 
 irresponsible authority. Why, under the decision of the Su- 
 preme Court of the United States, cattle have more rights than 
 these local authorities in our own and sister States accord to 
 citizens of New Orleans. Missouri passed a law providing, 
 " No Texas, Mexican or Indian cattle shall be driven or other- 
 wise conveyed into or remain in any county in this State be- 
 tween the 1st day of March and the 1st day of November." 
 The Supreme Court of the United States held that this was an 
 indiscriminate denunciation against healthy and diseased cat- 
 tle, and the law was set aside because a healthy Texas steer, a 
 Mexican cow or an Indian heifer, if it had not the yellow fever 
 or some other disease, had the constitutional right to come into 
 and abide in any county in the State of Missouri. 
 
 In ancient times, when a man had the leprosy he was de- 
 nounced as an individual leper; he alone was considered 
 accursed, he alone was considered as smitten by the chasten- 
 ing rod of a wrathful God ; he alone wore the badge of his de- 
 grading disease, was the recipient of man's inhumanity to 
 man : he alone could not bathe his parched lips in the waters of 
 brooks used by his fellow-man ; the denunciation was against 
 him alone, not against his brothers, his if sisters, his cousins 
 and his aunts." 
 
 Some time ago, when torture was practiced to please God, 
 and hot iron was thrust into living human flesh, men's nails 
 were torn from their fingers, and their toes were twisted out of 
 shape to inculcate a certain religious belief, this humane pro- 
 
6 
 
 cess of conversion, these persuasive appliances of religious 
 edification, were not employed indiscriminately against a whole 
 community, but only the individual having the disease of heresy 
 was denounced, tortured and damned, although heresy was 
 considered a very contagious disease. Until the application of 
 this doctrine, it was only in time of public war that the citizens 
 occupying the same territory are considered as so closely asso- 
 ciated that they lose their individual identity and this soli- 
 darity of pains and penalties is enforced. 
 
 It is not necessary to enumerate all the cases of outrage com- 
 mitted against our citizens, A people should be aroused to a 
 sense of danger by a single occurrence. When four passen- 
 gers in 1863 were taken from the Trent by an American cap- 
 tain, the British Government, though they were aliens, spent 
 two million pounds sterling in sending ammunition and troops 
 to Canada, and would consent to nothing less than the immedi- 
 ate return of those passengers to a British ship so that they 
 could continue to travel unmolested. 
 
 I will select one of many occurrences which illustrates with- 
 out exaggeration the acts of violence and restraint, this gue- 
 rilla warfare, to which our citizens are exposed. 
 
 In the latter part of October, 1878, a gentleman left this city 
 to attend to the business of his sugar plantation, knowing that 
 in exercising this right he was violating no law of the United 
 States or of this State. In the evening he discovered that his 
 sugar-house was surrounded by a force of twenty-five armed 
 men. The captain asked him if he came from New Orleans : 
 he pleaded guilty to that accusation. He was informed that 
 he must leave instantly. All remonstrance was unavailing. 
 It was in vain that he pleaded that he was an American citizen 
 and had a right to be on the plantation that he owned — it was 
 in vain that he protested that he was no messenger of death, 
 no carrier of pestilence, no disseminator of disease, no pedler 
 in yellow fever germs, that he was acclimated, having had the 
 yellow fever, that he had passed through every epidemic 
 during fifty years, that they might inspect and fumigate him, 
 and they would discover that he was afflicted with no other 
 disease than old age, which is not believed to be contagious 
 
or infectious, though very disagreeable — it was all to no pur- 
 pose, these constitutional and scientific arguments could not 
 cool the military ardor of the captain and his army, and this 
 unoffending citizen was by violence banished from his own 
 estate. 
 
 If we have a civil government during epidemics, it is not an 
 unimportant question to inquire under what authority was this 
 military campaign conducted against this individual H This 
 soldiery was not United States troops — they were not State 
 militia, as the security of our free State was not endangered 
 by this person going to his plantation. There is no law of the 
 State authorizing these military bands to regulate this great 
 question of intercourse. Though often repeated and generally 
 acquiesced in, it is a monstrous violation of individual right and 
 individual liberty, and with its increasing abuses, unless 
 checked, will drive population, capitalist and laborer, from our 
 midst and relegate us to the condition of a society governed by 
 law. When, in old times, a pauper or diseased person was 
 whipped ard carted back to his place of abode and settlement, 
 the treatment, though harsh, had the sanction of a statute. 
 
 Police juries are authorized to enact ordinances and regula- 
 tions not inconsistent with the laws and constitution of the 
 United States or the State, to protect their respective parishes 
 against the introduction of disease. 
 
 Does this authorize military arrests, military duress, military 
 campaigns, and military banishments ? Does this mean that 
 a police jury can adopt any theory, whimsical or scientific, as 
 it chooses, and issue its edict against commercial intercourse ? 
 Are the great interests of commerce and the great rights of 
 intercourse, which have been secured at such cost, to be 
 decided by a jurisdiction so inferior, by a magistracy so in- 
 significant ? 
 
 The rights of commercial intercourse have a history whose 
 traditions do not fade by the side of even those memorable 
 struggles for personal liberty which we Anglo-Saxons cherish 
 with a reverence that no lapse of time can efface. 
 
 In England the right of commercial intercourse is a chartered 
 right. It was secured wheu those great guarantees of personal 
 
8 
 
 liberty were wrested from kingly power. In Magna Charta 
 (1215) the 24th section reads : "All merchants shall have safe 
 and secure conduct to go out of and come into England and 
 stay there and pass as well by land as by water, to buy and 
 sell by the ancient and allowed customs without any heavy 
 tolls except in time of war, or when they shall be of any nation 
 at war with us." 
 
 In this country the right of intercourse is a constitutional 
 right. No license can be required, no tax can be imposed for 
 traveling — every one's passport is the constitution of the 
 United States. Notwithstanding this general statement, those 
 who look for affirmative Federal legislation to remedy these 
 wrongs or expect, so long as we preserve our present form of 
 government, that a Federal system of quarantine shall be 
 adopted are doomed to be disappointed — that is, a Federal 
 system that sball supersede and wipe out State quarantines 
 and State health laws. I am not touching the question of its 
 disirability, but am endeavoring to impress on you the convic- 
 tion that I share, that the hope of Federal aid and Federal 
 interference to solve this problem is illusory. The Federal 
 Government does and will greatly promote our efforts in certain 
 directions; but so long as States continue to be separate 
 political bodies, in my judgment, the government will not by 
 affirmative Federal legislation regulate this question of inter- 
 course ; and if this be so, as I propose to show, we must look 
 to other remedies than to Federal succor, for that will be 
 beyond our reach, if not beyond our desires. The fourth article 
 of confederation provided that " the people of each State shall 
 have free ingress and egress to and from any other State," and 
 it is a singular fact that if this article had been preserved in 
 the constitution, no State would have had the right to establish 
 any quarantine regulations against another State, as the police 
 power now exercised and conceded was completely surrendered. 
 It is because this article was modified and the police power 
 was not surrendered, that every law passed by Congress 
 from the earliest date, May 27, 1796, to the latest law of 
 1879, during a period of eighty-three years, has been enacted 
 

 
 iii aid and support of State quarantine laws, and jn corrobora- 
 tion and recognition of the health laws of the State. 
 
 Such was the second law passed. February 25, 1799. Such 
 was the third law passed- July 13, 1832, and such was the law of. 
 1879, though presenting new features, yet distinctly recognizing 
 the supremacy of the State quarantine laws, and the principle 
 of obedience of Federal officers in the execution of the quar- 
 antine laws of the State. 
 
 Two strenuous efforts after the epidemics of 1798 and 1878 
 were made to influence Congress, and yet the police power or the 
 State upon the subject of State quarantines remains to-day as 
 practically unaffected by the assertions of Federal control as 
 it was eighty years ago. 
 
 In 1798 New York city was visited by a terrible yellow fever 
 epidemic. Tbe excitement and alarm were very great. Gov. 
 Mifflin, of Pennsylvania, not a local committee, proclaimed, a 
 non-intercouse between Philadelphia and New York city. 
 Upon the disapi)earance of the epidemic thanksgivings were, 
 proclaimed in New York and the neighboring States, and fasts 
 were proclaimed in Connecticut and neighboring cities. Gov. 
 Jay, of New York, applied to the Federal Government, and 
 although it was in the heyday of federalism, President Adams 
 thus alluded to the subject in his message: 
 
 " While, with reverence and resignation we coutemplate the 
 dispensation of divine Providence in the alarming and de- 
 structive pestilence with which several of our cities and towns 
 have been visited, there is cause for gratitude, and mutual con- 
 gratulations that f.he malady has disappeared, and that we are 
 again permitted to assemble in safety at the seat of Govern- 
 ment for the discharge of our important duties. But when we 
 reflect that this fatal disorder has, within a few years, made 
 repeated ravages in some of our principal seaports, and with 
 increased malignancy, and when we consider the magnitude of 
 the evils arising from the interruption of public and private 
 business, whereby the national interests are deeply affected, I 
 think it my duty to invite the Legislature of the Union to ex- 
 amine the expediency of establishing suitable regulations in 
 aid of the health laws of the respective States." 
 
10 
 
 In the response, which was then customary from the Senate, 
 they reply to this recommendation as follows : 
 
 M Sympathy for the sufferings of our fellow- creatures from 
 disease, and the important interests of the Union demand of the 
 of the Kational legislation a ready co-operation with the State 
 Governments in the use of such means as seem best calculated 
 to prevent the return of this fatal calamity." 
 
 The result was the act of February 25, 1799. These eloquent 
 words express to-day as they did then the spirit of Federal 
 legislation — a strong sympathy, a noble charity, a manifest dis- 
 position to aid and succor and encourage, but at the same time 
 an acknowledged impotency to control, to supersede and to 
 interfere with State quarantine regulations ; for upon questions 
 non-political — in fact, upon this very question — the debates dis- 
 close that the Eepublicans of Massachusetts to-day is as jealous 
 of this State police power as is the extremist Southern Demo- 
 crat. So long as the local authorities of Alabama, Texas, Mis- 
 sissippi and our own State believe that their irregular methods 
 of protection must be enforced, though our commerce perish, 
 we must expect some other remedy than Federal aid in this 
 trying emergency. 
 
 Yet some governmental authority must be invoked to deter- 
 mine this great question of intercourse during epidemics. This 
 dangerous tendency to independent and irresponsible action 
 discloses a serious defect that must be cured, and confronts us 
 with a peril that must be circumvented. If these epidemics 
 are to recur society must seek some other shelter than mob 
 law— must depend upon something stronger than a sense of 
 public justice — must assert its rights firmly aDd demand a satis- 
 factory solution of this great question. 
 
 It occurs to me that most of this trouble could be avoided by 
 placing this question upon a higher level. Let it be made a 
 State and inter-State question. As to our foreign relations, it 
 is assuming the proportions of an international question, and 
 although as to our internal relations it is equally important, 
 we find it to be a police jury question, and sometimes it does 
 not even rise to that dignity. There is a responsibility when a 
 State acts, there is a comity between States, there is a sense of 
 
11 
 
 security and a guarantee of justice, of consistency, of uniform- 
 ity, when a State deals with its citizens and other States. The 
 proper functions ot a police jury are not to determine a ques- 
 tion of intercourse or nou -intercourse, that may involve the 
 commercial existence of a great city. If towns in Arkansas 
 and Mississippi will plant cannon on the banks of the Missis- 
 sippi Eiver practically to prohibit its navigation, I say let it 
 be done by the authority of the States of Arkansas and Missis- 
 sippi, and let the responsibility rest upon them. If Montgomery 
 is to deny the right to our people even in transit to breathe the 
 air of heaven, I say let it be done by authority of the State of 
 Alabama ; if Mobile and Galveston are to steal our commerce, 
 let it be done upon the authority of the States of Texas and 
 Alabama, and if a man cannot travel in this State, let the pro- 
 hibitions come from the State. Police juries can continue to 
 build bridges and grant ferry privileges ; cities and towns can 
 continue to clean their streets and arrest drunken people, but 
 this great question of intercourse during epidemics, and of pro- 
 tection to communities will rise to the level of the question of 
 public crimes, to which it is equal in importance ; to the ques- 
 tion of public morality, to which it is not subordinate ; and to 
 the question of public order, to which it is not foreign— for if 
 it is not deserving of that high station civil government during 
 the severest crisis to which society is exposed becomes a 
 pageantry and a mimickry. 
 
 I trust that the members of the medical profession who are 
 so eminent for their attainments, so zealous for the public good, 
 who, by some concerted action, deservedly exercise such a vast 
 influence, and whose counsel and advice have such weight, will 
 consider this great question so imperfectly presented by my- 
 self worthy of their most ambitious efforts and by creating and 
 guiding public opinion, they may demand some legislation that 
 will save our society from threatened anarchy, our commerce 
 from certain destruction, and that will reconcile freedom of 
 intercourse with due protection to communities against the 
 introduction of contagious and infectious diseases. 
 
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 RA436 
 
 Eu7 
 
 1880 
 
 Eustis 
 
 Relations of communities and 
 states during epidemics. 
 
 NOV 5 
 
 1954 C U. BINDERY