Pox (49 page)

For a time, it seemed that compulsion in name only was all Cambridge would require. By the time some local residents got around to forming an antivaccination society in April, the epidemic seemed to have subsided. Vaccination slowed to a halt. With the arrival of spring, normalcy returned to Cambridge. It did not last.
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A
t midnight on June 5, the phone rang at Spencer's home. The caller reported a dead body at 77 Norfolk Street. When Spencer arrived at the tenement, he was shocked at the appearance of the body—“one of the worst cases of smallpox I had ever seen.” The deceased, an African American boarder, had suffered for weeks with no medical care. Spencer examined the family that lived in the house. Three of the children had smallpox. Spencer had to assume that many in the densely populated neighborhood had been exposed. He called the undertaker, who buried the body that same night.
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Waiting out the incubation period of smallpox could be an unnerving experience. For a week, the board of health heard of no new cases. Then came the deluge: a full-blown outbreak on the blocks around 77 Norfolk Street, a section of Cambridgeport that lay just north of Massachusetts Avenue, the main road running from Central Square into Boston. Between June 14 and 28, ambulances carted nearly fifty infected adults and children to the New Street hospital. Seven from the neighborhood died. The board disinfected homes; closed schools and churches; and renewed its call for universal vaccination. In a single week, 4,000 people flocked to the free station in Central Square, just a few blocks from the infected district. Vaccinators canvassed the neighborhood, one of them vaccinating 260 people in just two days. But conflict impeded the corps' progress. “Many refuse to be vaccinated,” the
Chronicle
reported, “while others evade the doctors when they call at the house.”
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The board issued another vote: all vaccine refusers would now be prosecuted. Now accompanied by police, city vaccinators were under strict orders to “see the vaccination mark instead of merely taking a person's word.” At the end of June, the board reported that “almost all persons” in the infected district had been vaccinated.
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One of the holdouts was Pastor Jacobson, who lived just two blocks from 77 Norfolk Street. None of these details would make it into the legal record of his case, leaving later generations of readers of
Jacobson v. Massachusetts
with no real context for Justice Harlan's statement that the Cambridge Board of Health had battled “the evils of a smallpox epidemic that imperiled an entire population.” Jacobson really did take his stand against compulsory vaccination at the epicenter of a smallpox emergency. His own neighbors were falling sick and dying. More than three months had passed since Dr. Spencer first visited his apartment. The stakes had risen dramatically. But the pastor hadn't budged.
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Meanwhile, at the height of the Cambridgeport outbreak, which would be remembered as the most serious phase of the city's 1901–2 epidemic, Spencer still refrained from prosecuting anyone. Although his vaccination campaign helped keep the epidemic from reeling out of control, outbreaks continued to strike across the city in July, reaching North Cambridge and the brickyards, where several French Canadian laborers would die of the disease. One of the Cambridge residents afflicted that month was Putnam J. Ramsdell, a Christian Scientist who publicly denounced vaccination. The smallpox killed him.
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O
n July 17, 1902, Edwin Spencer finally swore out a criminal complaint against Henning Jacobson. Like hundreds of other Americans at the turn of the century, the minister found himself summoned before a local judge, charged with the crime of refusing vaccination.
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Jacobson appeared for trial on July 23 in the Third District Court of Eastern Middlesex County, before Associate Justice Samuel W. McDaniel. Local “inferior courts” like McDaniel's were the workhorses of the American legal system. Sometimes called “poor man's courts,” they handled the great mass of everyday civil suits—landlords and tenants suing each other, laborers fighting bosses for unpaid wages, collection agencies demanding payment from debtors—as well as criminal cases below the grade of felony. McDaniel was exceptionally well qualified for the position. A graduate of Harvard Law School, he had served on the school board and the city council.
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Entering the courtroom, Jacobson noticed that he was not alone. Vaccination cases were typically recorded, in the custom of America's adversarial legal culture, as a conflict involving only two parties: the state versus the lone defendant. But many of these legal conflicts arose from collective, or nearly simultaneous, acts of resistance. Three other men, presumably strangers to one another, waited to be tried alongside Jacobson for the same offense. They were Albert Pear; Frank W. Cone, an inspector with the city water department; and Ephraim Gould, a Canadian-born carpenter. Two other vaccine refusers had been summoned to court that day. Gould's wife, Maggie, defaulted. Paul Morse, a French Canadian brick burner, had relented and submitted to vaccination. Judge McDaniel dismissed the case against him.
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Of the four remaining defendants, the press showed an interest only in Albert Pear. Dashing and “widely respected,” the thirty-one-year-old Pear was a public figure. The son of a local Republican Party leader, he had served Cambridge for eight years as assistant city clerk, and he had acquired a reputation as “one of the most strenuous antivaccinationists in the city.” As he told a
Boston Globe
reporter at the courthouse, “I do not propose that the board of health shall dictate to me what medicine I shall put into my system.” Troubled by muscular rheumatism, Pear said his doctor had advised him against vaccination and had given him some “powders” to ward off smallpox.
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Judge McDaniel tried the four defendants together, without a jury. City Solicitor Gilbert A. A. Pevey stated the case against them: the state law authorized local health boards to order vaccination during smallpox epidemics; the Cambridge board had done so; the defendants knew their legal duty but had refused to be vaccinated. Simple as that. Pevey might as well have been prosecuting the men for public drunkenness.
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The first sign of anything unusual in the proceedings was the appearance of a defense attorney—a rarity in an inferior court. James Winthrop Pickering introduced himself as the attorney for Frank Cone, though he appeared to be sizing up all four defendants. A Harvard-trained Boston lawyer, Pickering represented the Massachusetts Anti-Compulsory Vaccination Society. Though no lawyer made a specialty of vaccination cases—there weren't enough to pay the bills—the cases tended to attract attorneys of a particular bent: self-styled civil libertarians who were unafraid to lose. Like Harry Weinberger of New York—who cut his teeth on vaccination cases before representing Emma Goldman and other radicals in a string of celebrated World War I–era free speech cases—Pickering viewed compulsory vaccination as a particularly insidious example of the creeping, state-imposed regimentation of American life.
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Seven years earlier, Pickering had argued a sensational free speech case alongside his attorney father, James F. Pickering, before the Massachusetts Supreme Judicial Court. Their client, Reverend William F. Davis, was an open-air evangelist who had been arrested repeatedly for delivering sermons without a permit on the Boston Common. Davis's crowds numbered in the thousands. His case became a cause célèbre among evangelical Christians and free speech advocates. The elder Pickering argued that the Boston ordinance violated Davis's fundamental right to preach the Gospel. But the argument failed to persuade Justice Oliver Wendell Holmes, Jr. Although Holmes would later become one of America's greatest defenders of free speech, at the time he showed little regard for individual rights as such, especially when they conflicted with the will of the majority as expressed in law. For the government to forbid public speaking in a public park, Holmes declared, was “no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Individual rights were not absolute, natural entities that existed in opposition to the state; a right existed when the public force could be counted on to protect it. If Holmes's opinion chastened the younger Pickering, the effect did not last .
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Representing Frank Cone in Judge McDaniel's court, Pickering made a forceful plea against the Massachusetts vaccination law. He said it violated his client's rights as a citizen of Massachusetts and the United States. Pickering explained that his client was merely acting in accordance with the “common knowledge” that vaccination was dangerous and “no sure preventative of smallpox.” Sensing where Pickering was headed, McDaniel said that he “doubted his power,” as an inferior court judge, to review the constitutionality of a state law.
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Jacobson's attempt to defend himself was a comedy of errors. But his sole court appearance without a lawyer did offer the purest statement of his grievance. Uncertain how to proceed, Jacobson asked to make a statement to the court. Solicitor Pevey asked him if it would be in the form of an argument or testimony. Jacobson did not know how to answer that. The minister was “finally induced to appear on the witness stand,” where he started to explain his belief that his physical condition and experience “did not warrant him in being vaccinated.” Pevey objected, and McDaniel sustained. The state vaccination law, the judge explained, did not allow any exceptions for adults to a health board's order—even if an individual's medical history made the procedure dangerous for him. (The state code did make such an exception for children, if they could provide a doctor's certificate to that effect.) After Pear indicated that he, too, planned to argue that he was an unfit subject for vaccination, Judge McDaniel told him to sit down.
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McDaniel found all four men guilty and fined each $5. Ephraim Gould had had enough. He would pay the fine. The other three defendants—Pear, Cone, and Jacobson—appealed their cases to the Middlesex County Superior Court, the next rung up the judicial ladder. Each would receive a new trial, this time before a jury.
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Then and there a constitutional test case was born. And its name (at least for the time being) was
Commonwealth v. Pear
. The Massachusetts Anti-Compulsory Vaccination Society decided that Albert Pear was their man to test the state law. He must have seemed the obvious choice. Several of the Boston and Cambridge defendants seemed motivated to go the distance. But Cate, the South End laborer, had already served his jail time. Jacobson and Mugford, the East Boston grocer, were both immigrants, which may have made them less than ideal plaintiffs. Moreover, Mugford's litigation was complicated, legally and morally: he had been convicted of refusing vaccination for himself and
neglecting
to have his child vaccinated. (Cone did not pursue his case beyond the superior court level.)

Commonwealth v. Pear
, by contrast, distilled the vaccination question to its most controversial form. Here stood an adult, male, natural-born citizen, taxpayer, and public servant—an American in the prime of manhood—being told by the state how to take care of his own body. If that failed to move the brethren of the Supreme Judicial Court, nothing would. Besides, Pear was one of the antivaccinationists' own. Pastor Jacobson had attended a meeting or two, but he was not a man of the movement. There is no evidence to suggest that he ever used the power of his pulpit to urge his flock to refuse vaccination.
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When Pear appeared before the Middlesex Superior Court for his second trial, on November 13, 1902, all knew that the proceedings were merely “the second necessary step” to getting his case before the Supreme Judicial Court. Now represented by Pickering, Pear offered no evidence. Pickering asked Judge William Cushing Wait to instruct the jury that the state law was void because it violated “the rights secured to the defendant by the preamble of the Constitution of the United States.” He asked Judge Wait for further instructions to the effect that the law violated the Constitution's Fifth Amendment, the Fourteenth Amendment, and several provisions of the Massachusetts constitution, including its famous “free and equal” clause, which the Supreme Judicial Court had used in 1783 to effectively abolish slavery in the state.
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Pickering's plea for instructions revealed his ambitions for the case. He was already preparing the ground for an appeal to the U.S. Supreme Court. The federal constitutional claims he was making were unorthodox. The status of the Preamble—which declared it among the Constitution's purposes to “secure the blessings of liberty” to the American people—was uncertain at best. And by invoking the Fifth Amendment, Pickering seemed ready to make an argument that the Fourteenth Amendment applied the Bill of Rights to the states, an argument the Supreme Court had rejected three decades earlier in the famous
Slaughter-House Cases
. Lawyers making personal liberties arguments at the turn of the century had to be creative.
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Rejecting Pickering's proposed instructions, Judge Wait advised the jurors that if they believed the evidence showed that Pear had violated the law (which no one disputed it did), they would be warranted in finding him guilty. The jurors never left their seats. They found Pear guilty. The court accepted Pickering's motion to present a bill of exceptions, so the case could go before the Supreme Judicial Court.
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