Pox (72 page)

78
Little quoted in Johnston,
Radical Middle Class
, 201.

79
Albert et al., “Last Smallpox Epidemic,” 375.

80
“Dies of Disease He Defied,”
NYT
, Jul. 26, 1902, 5. “Anti-Vaccinationist Offered Up,”
Medical Sentinel
, 11 (June 1903), 332. “Topics of the Times,”
NYT
, Aug. 13, 1904, 6. “Smallpox in Zion City,” ibid., Aug. 12, 1904, 7.

81
“Dr. Pfeiffer Has Smallpox,”
BG
, Feb. 9, 1902, 1.“Pfeiffer Yet Alive,” ibid., Feb. 10, 1902, 1.

82
“Dr. Pfeiffer Has Smallpox.” “Pfeiffer Yet Alive,”
BG
, Feb. 10, 1902, 1. Nichols,
Vaccination: A Blunder in Poisons
, 51. See also “Dr. Pfeiffer's Condition Encouraging,”
BG
, Feb. 11, 1902, 3; Albert et al., “Last Smallpox Epidemic,” 377.

83
“Bedford May Sue,”
BG
, Feb. 17, 1902, 1.

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. Massachusetts
, 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, Massachusetts, Enumeration District No. 691. Today, Pine Street, which lies just north of Massachusetts 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. Massachusetts
, 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. Massachusetts
,”
NEJM
, 352 (2005), 652–54.

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

6
Defendant's Bill of Exceptions,
Commonwealth v. Jacobson, Massachusetts 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, Mass., Enumeration Dist. No. 691. Peter Skold, “From Inoculation to Vaccination: Smallpox in Sweden in the Eighteenth and Nineteenth Centuries,”
Population Studies
, 50 (1996): 247–62.

7
Obituary of E. Edwin Spencer,
White Family Quarterly
, vol. 1 (Apr. 1903), 38–39. John S. Haller, Jr.,
A Profile in Alternative Medicine: The Eclectic Medical College of Cincinnati, 1845–1942
(Kent, OH: Kent State University Press, 1999). George Otis Ward,
Worcester Academy: Its Location and Its Principals, 1834–1882
(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
, 6–9.

11
BOSHD 1901
, 45. The Boston compulsory vaccination order is quoted in full in Defendant's Exceptions,
Commonwealth v. Mugford
, 1902,
Massachusetts 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, Massachusetts., 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. Massachusetts
, 197 U.S. 11, 30–31 (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 Massachusetts
(Boston: The Boston History Company, 1895), vol. 1, 377. On American inferior courts, see Willrich,
City of Courts
, 3–58.

22
Biographical details on the defendants drawn from
Twelfth Census of the United States
(1900): Schedule 1—Population: Cambridge, Massachusetts, 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, 48–49.
Commonwealth v. Davis
, 162 Mass. 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 Massachusetts 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,
Massachusetts Reports Papers and Briefs
, vol. 183, 2–3, 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,” 2–4.

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., 2–4.

38
Ibid., 4–6.

39
“Smallpox History.” “An $18.30 Tax Rate,”
CC
, Aug. 23, 1902, 1. “Smallpox Annihilated,” ibid., Sept. 6, 1902, 5.
CAMBOH 1902,
9, 22–26.

40
Brief for the Commonwealth,
Commonwealth v. Pear
, 1903,
Massachusetts 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,
Massachusetts Reports Papers and Briefs
, vol. 183, SLL, 4 (hereafter “Bancroft SJC Jacobson Brief”).

41
“Jacobson SJC Brief,” 18–19.

42
“About the Court,” Supreme Judicial Court Web site,
http://www.mass.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), 290–92. “Ex-Justice Knowlton Dies,”
NYT
, May 8, 1918, 11.

43
Commonwealth v. Alger
, 61 Mass. 53, 84–85 (1851).

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

45
Roberts v. Boston
, 59 Mass. 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 Constitution, 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 Constitutional 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 Constitution in the Supreme Court: The Second Century, 1888–1986
(Chicago: University of Chicago Press, 1990), 40–50.

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,
Constitution in the Supreme Court
, 47.

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

56
“Political Temperaments,”
Outlook
, Jul. 30, 1904, 728–29. 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 petition 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): 441–51, esp. 450.

62
Freund,
Police Power
, 478.

63
Ballard in “Jacobson SJC Brief,” 36.