Pox: An American History Part 9

1 Plessy v. Ferguson, 163 U.S. 537 (1896). Brown v. Board of Education, 337 U.S. 483 (1954). Gideon v. Wainwright, 372 U.S. 335 (1963).

2 Transcript of Record, Jacobson v. Ma.s.sachusetts, U.S. Supreme Court, October Term, 1904, No. 70-175, filed June 29, 1903, 5, 4 [hereafter "Jacobson USSC Transcript"]. Twelfth Census of the United States (1900): Schedule No. 1-Population: Cambridge, Ma.s.sachusetts, Enumeration District No. 691. Today, Pine Street, which lies just north of Ma.s.sachusetts Avenue, is not generally considered part of Cambridgeport; but it was in 1902. See "Small Pox Scourge. Alarming Outbreak of the Disease in a Section of Cambridgeport," Cambridge Chronicle, Jun. 21, 1902, 4. American wage figure in 1900, from "Responses to Industrialism," Digital History, http://www.digitalhistory.uh.edu/historyonline/us26.cfm, accessed December 17, 2009.

3 Jacobson v. Ma.s.sachusetts, 197 U.S. 11, 13, 26 (1905).

4 Wendy E. Parmet et al., "Individual Rights versus the Public's Health-100 Years after Jacobson v. Ma.s.sachusetts," NEJM, 352 (2005), 65254.

5 Brief for Defendant, Commonwealth v. Jacobson, Supreme Judicial Court of Ma.s.sachusetts, Mar. 1903, 19; in Ma.s.sachusetts Reports Papers and Briefs, vol. 183, SLL (hereafter "Jacobson SJC Brief ").

6 Defendant's Bill of Exceptions, Commonwealth v. Jacobson, Ma.s.sachusetts Reports Papers and Briefs, vol. 183, 4, SLL (hereafter "Jacobson's SJC Exceptions"). Twelfth Census of the United States (1900): Schedule No. 1-Population: Cambridge, Ma.s.s., Enumeration Dist. No. 691. Peter Skold, "From Inoculation to Vaccination: Smallpox in Sweden in the Eighteenth and Nineteenth Centuries," Population Studies, 50 (1996): 24762.

7 Obituary of E. Edwin Spencer, White Family Quarterly, vol. 1 (Apr. 1903), 3839. John S. Haller, Jr., A Profile in Alternative Medicine: The Eclectic Medical College of Cincinnati, 18451942 (Kent, OH: Kent State University Press, 1999). George Otis Ward, Worcester Academy: Its Location and Its Princ.i.p.als, 18341882 (Worcester, MA, 1918).

8 "Small Pox History," CC, Sept. 20, 1902, 15. City of Cambridge, Annual Report of the Board of Health for the Year Ending November 30, 1901 (Cambridge, MA, 1902), 20.

9 "Death from Lockjaw," CC, Jan. 4, 1902, 5.

10 "Small Pox History." "Smallpox Scourge," CC, Jun. 21, 1902, 4. CAMBOH 1902, 69.

11 BOSHD 1901, 45. The Boston compulsory vaccination order is quoted in full in Defendant's Exceptions, Commonwealth v. Mugford, 1902, Ma.s.sachusetts Reports Papers and Briefs, vol. 183, 1, SLL (hereafter "Mugford Exceptions").

12 "Fifteen Days in Jail," BG, Feb. 21, 1902, 5. "Mugford Exceptions," 3. "To East Boston," BG, Jan. 27, 1902, 1. "Mugford Will Appeal," ibid., Mar. 2, 1902, 2. Twelfth Census of the United States (1900): Schedule No. 1-Population: Boston, Ma.s.sachusetts., Enumeration Dist. No. 1162.

13 Cambridge Vaccination Order in "Jacobson USSC Transcript," 10. "Compulsory Vaccination," CC, Mar. 8, 1902, 5. "Smallpox History." CAMBOH 1902, 8.

14 "Those Who Favor Anti-Compulsory Vaccination Are Not Idle-Organization Being Formed," CC, Apr. 5, 1902, 12.

15 "Smallpox Scourge." According to the Cambridge Board of Health, the family had moved to Cambridge from Boston some time after Cambridge's wholesale vaccination campaign in March. "Smallpox Fully Under Control," CC, Jun. 28, 1902, 4.

16 Ibid. "The Cambridge Smallpox Epidemic," MN, Jun. 28, 1902, 1230.

17 "Smallpox Fully Under Control."

18 Harlan in Jacobson v. Ma.s.sachusetts, 197 U.S. 11, 3031 (1905).

19 "In the Brickyards," CC, Aug. 2, 1902, 5. "Another Smallpox Case," ibid., Sept. 20, 1902, 6. "Small Pox Is Once More Disappearing," ibid., Jul. 26, 1903, 1.

20 Spencer complaint in "Jacobson USSC Transcript," 2.

21 "Four Prosecutions by Board of Health," CC, Jul. 26, 1902, 4. William T. Davis, Bench and Bar of the Commonwealth of Ma.s.sachusetts (Boston: The Boston History Company, 1895), vol. 1, 377. On American inferior courts, see Willrich, City of Courts, 358.

22 Biographical details on the defendants drawn from Twelfth Census of the United States (1900): Schedule 1-Population: Cambridge, Ma.s.sachusetts, Enumeration District 698 (Cone); District 731 (the Goulds); District 727 (Morse); and District 723 (Pear).

23 "Anti-Vaccinationists Must Go into Court," CC, Jul. 19, 1902, 1. "Won't Submit," BG, Jul. 18, 1902, 12. "Fined Them $5 Each," ibid., Jul 24, 1902, 12. The Globe erroneously reported Pear's age as thirty-three. "Cambridge's Electric Plant," Boston Globe, Nov. 20, 1895, 7. Pear also told the press that an aunt of his had been an invalid for much of her life, a condition he attributed to vaccination.

24 "Four Prosecutions."

25 Ibid. "Won't Submit." Davis, Bench and Bar, vol. 1, 280.

26 Brief published in full in William F. Davis, Christian Liberties in Boston: A Sketch of Recent Attempts to Destroy Them Through the Device of a Gag-By-Law for Gospel Preachers (Chelsea, MA: W. Kellaway, 1887); quotation, 4849. Commonwealth v. Davis, 162 Ma.s.s. 510, 511 (1895). "Against Rev. W. F. Davis," BG, Jan. 2, 1895, 4. "Man with a Conscience," ibid., Jul. 29, 1894, 32. On Holmes and rights, see Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus and Giroux, 2001), esp. 422.

27 "Four Prosecutions."

28 Ibid.

29 "Fined Them $5 Each."

30 On the Pear case as a test case supported by the Ma.s.sachusetts Anti-Compulsory Vaccination Society, see "Vaccination Test Case," BG, Nov. 13, 1902, 4; "Stands by Albert M. Pear," ibid., Dec. 2, 1902, 4; "The Vaccination Question," ibid., Nov. 15, 1902, 2; "Test Vaccination Case," CC, Nov. 15, 1902, 12.

31 "Test Vaccination Case." Defendant's Exceptions in Commonwealth v. Pear, 1903, Ma.s.sachusetts Reports Papers and Briefs, vol. 183, 23, SLL (hereafter "Pear's SJC Exceptions").

32 See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998).

33 "Test Vaccination Case." "Pear's SJC Exceptions," 24.

34 "Stands by Albert M. Pear," BG, Dec. 2, 1902, 4. "In the Brickyards."

35 "Discuss Vaccination," BG, Nov. 4, 1902, 7.

36 "Jacobson's SJC Exceptions," 4.

37 Ibid., 24.

38 Ibid., 46.

39 "Smallpox History." "An $18.30 Tax Rate," CC, Aug. 23, 1902, 1. "Smallpox Annihilated," ibid., Sept. 6, 1902, 5. CAMBOH 1902, 9, 2226.

40 Brief for the Commonwealth, Commonwealth v. Pear, 1903, Ma.s.sachusetts Reports Papers and Briefs, vol. 183, SLL, 2 (hereafter "Bancroft SJC Pear Brief"). The language is identical to that in Brief for the Commonwealth, Commonwealth v. Jacobson, 1903, Ma.s.sachusetts Reports Papers and Briefs, vol. 183, SLL, 4 (hereafter "Bancroft SJC Jacobson Brief").

41 "Jacobson SJC Brief," 1819.

42 "About the Court," Supreme Judicial Court Web site, http://www.ma.s.s.gov/courts/sjc/about-the-court.html, accessed December 21, 2009. Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (New York: Knopf, 2002), 29092. "Ex-Justice Knowlton Dies," NYT, May 8, 1918, 11.

43 Commonwealth v. Alger, 61 Ma.s.s. 53, 8485 (1851).

44 See generally Ernst Freund, The Police Power: Public Policy and Const.i.tutional Rights (Chicago: University of Chicago Press, 1904); William J. Novak, The People's Welfare.

45 Roberts v. Boston, 59 Ma.s.s. 198, 209 (1849).

46 Barron v. Baltimore, 7 Pet. 243 (U.S., 1833).

47 Slaughter-House Cases, 83 U.S. 36 (1873).

48 United States Const.i.tution, Amendment XIV, Sec. 1.

49 Slaughter-House Cases, 83 U.S. 36, 78, 81 (1873).

50 Slaughter-House Cases, 83 U.S. 36, 87, 88, 122 (1873).

51 Freund, Police Power, v.

52 Thomas M. Cooley, A Treatise on the Const.i.tutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, and Company, 1868). See David P. Currie, The Const.i.tution in the Supreme Court: The Second Century, 18881986 (Chicago: University of Chicago Press, 1990), 4050.

53 Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States (St. Louis: The F. H. Thomas Law Book Co., 1886), 10. See In Re Jacobs, 98 NY 98 (1885); Ritchie v. People, 155 Ill. 98 (1895).

54 Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897). Currie, Const.i.tution in the Supreme Court, 47.

55 See Willrich, City of Courts, esp. ch. 4.

56 "Political Temperaments," Outlook, Jul. 30, 1904, 72829. On this crucial point, see also David G. Ritchie, Natural Rights: A Criticism of Some Political and Ethical Conceptions (London: Swan Sonnenschein & Co., 1895). Ritchie observed, "Compulsory education, compulsory vaccination, compulsory notification of infectious diseases, etc., are infringements of the family, but in the interest of the liberty-the real, positive liberty-of the individuals who belong to the family, and of others. If an individual has a certain minimum of education and of protection from gross neglect and from infectious diseases secured to him, he is to that extent more 'free' to make what he can of his natural powers and of his opportunities, than if he is entirely at the mercy of ignorant parents, and of dirty, diseased, or fanatical neighbors." Ibid., 218.

57 Later historians and legal scholars would adopt the progressives' perspective, emphasizing that "in the early decades of the twentieth century, substantive due process was by and large confined to the protection of economic liberties from government regulation." See, e.g., "Due Process, Substantive," in Encyclopedia of American Civil Rights and Liberties, ed. Otis H. Stephens et al. (Westport, CT: Greenwood, 2006), vol. 1, 281.

58 Freund, Police Power, 109, 16.

59 "Compulsory Vaccination and Detention in a Pest House as an Infringement of Personal Liberty," Central Law Journal, 54 (1902), 361.

60 The school entry cases took two forms. A parent might ask the court to issue an injunction (to enjoin school officials from excluding an unvaccinated child), as Frank Blue did in Blue v. Beach, 155 Ind. 121 (1900). Or a parent might pet.i.tion the court for a writ of mandamus (to compel school officials to admit an unvaccinated child), as Michael Breen did in Potts v. Breen, 167 Ill. 67 (1897). See also Mathews v. Kalamazoo Board of Education, 127 Mich. 530 (1901); State v. Hay, 126 N.C. 999 (1900); Morris v. Columbus, 102 Ga. 792 (1898); "Teacher Must Be Vaccinated," NYT, Nov. 15, 1901, 7.

61 Irving Browne, "Inviolability of the Human Body," Green Bag, 9 (1897): 44151, esp. 450.

62 Freund, Police Power, 478.

63 Ballard in "Jacobson SJC Brief," 36.

64 Abeel v. Clark, 84 Cal. 226 (1890).

65 Duffield v. Williamsport School District, 162 Pa. 476, 482 (1894). "Note," PABOH 1903, vol. II, 918.

66 Duffield v. Williamsport School District, 162 Pa. 476 (1894). Boyd's Directory of Williamsport, 1899 (Reading, PA, 1899), 167, 402. Historical Sketches of the Bench and Bar of Lycoming County, Pennsylvania (1961), http://www.lycolaw.org/history/sketches/20.htm, accessed January 5, 2010. Tiedeman's own libertarianism diminished when he contemplated police control of the working cla.s.s, and he concluded that compulsory vaccination was defensible. Tiedeman, Limitations, 32.

67 Duffield v. Williamsport School District, 162 Pa. 476, 483, 484 (1894).

68 Lawton v. Steele, 152 U.S. 133, 152 (1894).

69 See, e.g., Abeel v. Clark, 84 Cal. 226 (1890); Bissell v. Davison, 65 Conn. 183 (1894); Viemeister v. White, 179 N.Y. 235 (1904). See "Compulsory Vaccination," Yale Law Journal, 12 (1903): 5046; "Public Schools: Conditions of Attendance," ibid., 13 (1904): 261. "Bancroft SJC Jacobson Brief," 8.

70 Adams v. Burdge, 95 Wis. 390 (1897).

71 Ibid.

72 Adams v. Burdge, 95 Wis. 390, 400, 404, 405 (1897). "Silas U. Pinney (18331899)," http://www.wicourts.gov/about/judges/supreme/retired/pinney.htm, accessed January 6, 2010.

73 "Topics of the Times," NYT, Feb. 27, 1897, 8. Adams v. Burdge, 95 Wis. 390, 399 (1897).

74 Potts v. Breen, 167 Ill. 67, 76 (1897). See also State ex rel. Freeman v. Zimmerman, 86 Minn. 353 (1902). Freund, Police Power, 116. The Kansas Supreme Court went even further, ruling that in the absence of clear legislative authority, a local board of education could not deny admission to an otherwise eligible pupil for failing to be vaccinated. Osborn v. Russell, 64 Kan. 507 (1902).

75 Mathews v. Kalamazoo Board of Education, 127 Mich. 530, 535, 539 (1901).

76 "Note-Right of Boards of Health to Make Vaccination Compulsory," Central Law Journal, 54 (1902), 56. On the doctrine of overruling necessity, see Novak, People's Welfare, 72; W. P. Prentice, Police Powers Arising Under the Law of Overruling Necessity (New York: Banks & Brothers, 1894).

77 G.o.dcharles v. Wigeman, Penn. 1886, Atlantic Reporter, 6 (1886), 35456, esp. 356. "Compulsory Vaccination," Yaw Law Journal, 10 (1901), 159.

78 "Vaccination Not Compulsory," NYT, May 6, 1894, 16. "Decision on the Vaccinating Raid," ibid., May 4, 1895, 9. In the Matter of the Application of William H. Smith et all for a Writ of Habeas Corpus, 146 N.Y. 68, 73, 78 (1895). Smith subsequently sued Brooklyn Health Commissioner Z. Taylor Emery for false imprisonment. The jury rendered a verdict for Smith, but the verdict was reversed on appeal. Smith v. Emery, 42 N.Y.S. 258 (1896).

79 "Bancroft SJC Jacobson Brief," 9.

80 Morris et al. v. City of Columbus, 102 Ga. 792 (1898). Wyatt v. Rome, 105 Ga. 312 (1898).

81 State v. Hay, 126 N.C. 999, 1000, 1001 (1900).

82 Levin v. Town of Burlington, 129 N.C. 184 (1901).

83 Levin v. Town of Burlington, 129 N.C. 184, 187, 188, 189 (1901).

84 "Compulsory Vaccination and Detention," 361. "Jacobson SJC Brief," 12; "Pear SJC Brief," 12.

85 The court set aside the verdict and ordered a new trial. State v. Hay, 126 N.C. 999, 103 (1900).

86 State v. Hay, 126 N.C. 999, 1005 (1900).

87 State v. Hay, 126 N.C. 999, 1004 (1900). "Jacobson SJC Brief," 30, 31. "Those who pose a risk to the community can be required to submit to compulsory measures for the common good," writes Lawrence Gostin of the harm avoidance principle. "The control measure itself, however, should not pose a health risk to its subject." Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint (Berkeley and Los Angeles: University of California Press, 2000), 69.

88 Wong Wai v. Williamson, 103 F. 1, 7, 10 (1900). Charles J. McLain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America (Berkeley and Los Angeles: University of California Press, 1994), 23476. Henry Bixby Hemenway, Legal Principles of Public Health Administration (Chicago: T. H. Flood & Co., 1914), 633: "Few diseases have been more subjected to judicial inquiry than smallpox." Tobey, Public Health Law (1926), 118: "A few decades ago, it seems as if the bulk of court decisions arose out of conditions in which smallpox was the princ.i.p.al factor."

89 "Jacobson SJC Brief," 3, 14, 16, 18. "Pear SJC Brief," 3, 14, 16, 18.

90 "Marcus Perrin Knowlton," memorial, 231 Ma.s.s. 615 (1919).

91 Commonwealth v. Pear; Same v. Jacobson, 183 Ma.s.s. 243, 245 (1903).

92 Commonwealth v. Pear; Same v. Jacobson, 183 Ma.s.s. 243, 246, 248 (1903).

93 Commonwealth v. Pear; Same v. Jacobson, 183 Ma.s.s. 243, 248 (1903).

94 "Virus Squad Out," BG, Nov. 18, 1901, 7. Antivaccinationist literature after 1903 noted the noforce principle articulated in Commonwealth v. Pear; Same v. Jacobson. See, for example, Charles M. Higgins, Open Your Eyes Wide! Parents, School Officers, Editors, Judges, Legislators, Doctors; And Look at These Facts About Vaccination, 2d ed. (London: Anti-Vaccination League of America, 1912), 15.

95 Commonwealth v. Mugford; Same v. Same, 183 Ma.s.s. 249. There was a straightforward reason why the SJC would identify Jacobson rather than Pear as governing. Mugford, like Jacobson, had raised two questions: const.i.tutionality of the statute and admissibility of evidence. Like Jacobson, Mugford had tried to put vaccination itself on trial by presenting medical evidence as to its dangers. Pear had made only the const.i.tutional case.

96 "Jacobson USSC Transcript," 2122.

97 See, e.g., J. C. Henderson, "An Appeal," Life (New York), Sept. 24, 1903, 288; Stuart Close, "Drug Diseases and Compulsory Medicine," Medical Advance and Journal of Homeopathics (Chicago), 41 (Nov. 1903), 588. On the Court's writ of certiorari, see Currie, Const.i.tution in the Supreme Court, vol. 2, 5.

98 Geoffrey T. Blodgett, "The Mind of the Boston Mugwump," Mississippi Valley Historical Review, 48 (1962), 61434. Gordon S. Wood, "The Ma.s.sachusetts Mugwumps," New England Quarterly, 33 (1960), 43551. "Williams, George Fred," Who's Who in New England, ed. Albert Nelson Marquis, (Chicago: A. N. Marquis & Company, 1916), 1160.

99 "George Fred Williams' Platform," in The Commoner Condensed, ed. William Jennings Bryan (Lincoln, NE: The Woodruff-Collins Printing Co., 1903), 344. George Fred Williams, "Our Real Masters," Arena, Jan. 1903, 712. "In the Mirror of the Present," Arena, Oct. 1906, 40510, esp. 408. Dunbar v. Dunbar, 190 U.S. 340 (1903).