Pox (50 page)

The Massachusetts Anti-Compulsory Vaccination Society met in Tremont Temple Baptist Church on December 1 and voted to continue to support Pear in his “contest with the board of health.” Tensions continued to mount in the Boston area. Forty-one residents of Somerville had refused vaccination. Officials there had decided to await the outcome in the Pear case before prosecuting anyone. In Cambridge, at least three more residents had been summoned to court since July for refusing vaccination. All three submitted to the procedure rather than face prosecution and the inevitable fine.
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Henning Jacobson, meanwhile, continued to pursue his case. His Superior Court trial had been postponed until February 1903. Although
The Boston Globe
indicated the antivaccination society was backing Pear as its test case, Pickering was now representing Jacobson, too, presumably on the society's dime. Jacobson even attended one of the society's monthly meetings. According to the
Globe
, the minister told the audience of “the terrible experiences of himself and children from vaccination, and of his own knowledge of the uselessness of the practice.”
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With Pickering at his side, Jacobson stood trial in Middlesex Superior Court, before a jury of his peers, on February 27, 1903. The trial covered the same ground as Pear's, with one major difference: Jacobson had a case he wanted to make to the jury. From those first awkward moments in Judge McDaniel's courtroom—and, one imagines, earlier, when Spencer first appeared at his door—the minister had shown an overwhelming desire to explain himself. He wanted to show that his refusal to obey the law was, as he now proposed to prove to this jury, “prompted by his knowledge of the danger and his dread of the terrible consequences of vaccination.”
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Jacobson offered to prove fourteen points “by competent evidence.” Many of the points had the flavor of an antivaccinationist pamphlet: vaccination caused injury, disease, and death; “as a rule,” it rendered a person temporarily incapable of “performing his usual duties and labors”; vaccine manufactured in America was often “impure”; its “evil and dangerous effects” included tetanus and syphilis; sanitation and isolation were the only reliable safeguards against smallpox. Jacobson may have believed all of these points, but their inclusion in his case was clearly the price for the support of the antivaccination society. He saved his two most personal points for last. In childhood he had experienced “great and extreme suffering, for a long period, by a disease produced by his vaccination.” And he had “witnessed a similar result of vaccination in the case of his own son, and had personally known a great number of other instances of the same kind.” Jacobson's will to fight against compulsion arose from those experiences rather than from antivaccination ideology.
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Judge Wait ruled that all of those assertions were “immaterial.” He excluded them all. And so in Pickering's request for instructions to the jury, the attorney added another item to those he had asked for in Pear's case. He asked the judge to tell the jury that the board of health order was unreasonable because it made no exceptions for individuals to whom vaccine posed a special risk. Judge Wait refused. The jury had little choice but to find Jacobson guilty. A few days later, Pickering filed his exceptions for appeal to the Supreme Judicial Court. The state's high court could consider Jacobson's and Pear's cases together; their causes were once again joined, now as “plaintiffs-in-error.”
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Constitutional controversies often outlive the events that gave rise to them. The Cambridge smallpox epidemic had run its course by the winter of 1903, when Assistant District Attorney Hugh Bancroft, representing the Commonwealth, and J. W. Pickering and his new cocounsel, Henry Ballard of Vermont, representing Pear and Jacobson, prepared their briefs for the Supreme Judicial Court. All told, 187 patients had been taken to the New Street hospital. Thirty-five Cambridge residents had died. The board of health had vaccinated 30,000 people, private physicians 26,000. And the citizens now held the bill: the highest tax rate in the city's history. The epidemic looked to many like yet another verdict for vaccination. Of the cases isolated at New Street, none had been vaccinated within the past five years. On January 19, 1903, a few months after smallpox loosened its grip on the city, E. Edwin Spencer died at his Cambridge home, just two weeks shy of his seventieth birthday.
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The three lawyers had a different historical subject in mind as they compiled their briefs in the cases of
Commonwealth v. Pear
and
Commonwealth v. Jacobson
. The cases compelled them to come to terms with the most contentious issue in American constitutional law since the Civil War: the explosive growth of the police power and the great wave of constitutional struggles that had grown up with it.

Bancroft, a novice who graduated from Harvard Law School in 1901, knew enough to understand that he had the easy side of the case. His briefs in the two cases were nearly identical. “The legislature has an extensive undefined power,” he said in both of them, “usually called the police power, to pass laws for the common good.” The legislature's “wide discretion cannot be controlled by the courts unless its action is clearly evasive.” Whether the theory of vaccination was sound or not was a question for lawmakers, not judges. But if the Supreme Judicial Court should choose to consider that question, it would surely take notice of the fact that vaccination is “the most effective known preventive of one of the most dangerous diseases to which the human race is subject.”
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The briefs for the “plaintiffs in error” contained a few lunatic flourishes. (Again, the bodies of the two briefs were virtually identical; but Ballard contributed an addendum to Jacobson's brief in order to address the issue of the excluded evidence.) Did Pickering and Ballard really expect the members of the Supreme Judicial Court to swallow their argument that compulsory vaccination was “a greater outrage than the scalping of a living victim by an Indian savage”? Or that this state-imposed “rite” was a “form of worship of the Sacred Cow?” Like the antivaccinationist literature on which they drew, the briefs decried vaccination as a barbaric practice unworthy of a civilized people.
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But the lawyers' argument for Albert Pear and Henning Jacobson cut much deeper. Their briefs raised
the
central question of American constitutional law at the turn of the century: Where should the courts draw the line between police power and individual liberty? Was there a line at all?

 

 

T
he Massachusetts Supreme Judicial Court enjoys pride of place as “the oldest court in continuous existence in the Western Hemisphere.” Known in colonial times as the Superior Court of Judicature, the institution opened in 1692 and was immediately busy with the trials of accused witches from Salem. The court acquired its modern name in 1780, when the new Commonwealth of Massachusetts ratified its state constitution, drafted by John Adams (and now the world's oldest written constitution). In the nineteenth century, the Supreme Judicial Court established itself as a leader in the development of an American common law. Massachusetts industrialized early, and its high court handed down influential decisions in property, torts, and master-servant law, helping to lay the legal foundation for American capitalism. The office of chief justice had been occupied by such legal luminaries as Adams, Theophilus Parsons, and Lemuel Shaw. Marcus Perrin Knowlton, who took it upon himself to write the court's opinion in the vaccination case, had assumed that position only in December 1902, when President Theodore Roosevelt appointed his predecessor, Oliver Wendell Holmes, Jr., to the U.S.Supreme Court. Holmes stepped into the vacancy left by another former chief justice of the Massachusetts court, Horace Gray.
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In its storied history, the Supreme Judicial Court had more than once had occasion to consider the scope of the police power. Chief Justice Shaw's 1851 decision in
Commonwealth v. Alger
remained, more than half a century later, the definitive American statement on the subject. Assistant D.A. Bancroft cited it prominently in his briefs for the vaccination case.
Alger
involved a classic police power controversy, pitting one citizen's property rights against the right of the legislature to defend the people's welfare. The state legislature had established a wharf line in Boston Harbor, beyond which no private structure could be built. The law aimed to preserve the free use of the harbor as “a common and public right.” A Boston jury found Cyrus Alger guilty of breaking the law by building a pier, on his own property, that extended beyond the line. On appeal, the Supreme Judicial Court upheld the law in a resounding defense of the police power. Shaw wrote:

The police power enjoyed the sanction of the state and federal constitutions, but it did not originate there; it flowed from the wellspring of sovereignty itself. The concept of “police” had deep roots in English and European traditions of governance. Its scope far exceeded the law enforcement function of municipal police forces, which first appeared on the streets of New York, Philadelphia, and Boston during the 1840s and '50s. When considering the almost indeterminate scope of the police power, nineteenth-century American jurists referred to two great common law maxims:
sic utere tuo ut alienum non laedas
(use your own so as not to injure another) and
salus populi suprema lex est
(the welfare of the people is the supreme law). In “well-ordered societies,” state governments and municipalities served the people's welfare in ways too numerous to list: they upheld public morals by policing saloons and brothels, ensured public safety through fire and crime prevention, governed the marketplace through price regulations and licensing, and protected the public health by policing noxious trades and enforcing quarantines to check contagious diseases.
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As significant as Shaw's expansive meditation on legislative power was his parsimonious discussion of individual rights. Later generations of Americans would imagine the nineteenth century as the epoch of rugged individualism and laissez-faire. But the century's preeminent state judge recognized a very different reality. Individual rights—even rights as elementary to American law and politics as property—were “social” and “conventional,” not natural entities inherent in human beings. As citizens like Cyrus Alger learned time and again, in the name of the common good state and local governments trod heavily on property rights and personal liberties, with no obligation to compensate private parties for their losses. Like other American judges, Shaw recognized certain constitutional restraints on police power, but they were few. Laws must apply equally to all under like circumstances, to avoid creating an undue advantage for particular individuals. (Sadly, Shaw found room enough in this “equality” principle to permit the Boston schools committee to require African American children to attend separate schools.) In addition, “ex post facto laws” were forbidden. Finally, government interferences with individual rights must be “reasonable”—they must have a clear relation to some legitimate legislative purpose. Beyond those outer limits, until the late nineteenth century most courts stayed out of the way of police power.
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That included federal courts. Prior to the Civil War, state and local police measures were virtually unreviewable by the federal courts, unless a measure invaded an area of exclusive congressional control (such as the power to regulate interstate commerce) or violated some specific state-restraining provision of the U.S. Constitution, like the Contract Clause. Even those limitations were controversial. And as Chief Justice John Marshall himself had reminded the American people in
Barron v. Baltimore
(1833), the U.S. Constitution's Bill of Rights restrained only the federal government. If a state subjected prisoners to cruel and unusual punishments, forbade newspapers to speak ill of the legislature, or seized private property for public use without compensation, the citizens had no remedy in federal court. They had to seek relief in their state courts under their state constitutions.
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And then the war came. The Civil War transformed the nation, remade the Constitution, and attached individual rights more closely than ever before to the federal government. Still, the sweeping nation-building events of the Reconstruction period—including the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments—had remarkably little immediate impact on the theory and practice of the police power. The U.S. Supreme Court ensured that this was so.