In any case, Mary Mallon found herself with a distinguished advocate. Over the next few years, while she never won a motion or a case, she clearly either wore the opposition down or, at the very least, scared them mightily.
After two years on North Brother Island, Mary Mallon, with George Francis O’Neill at her side, appeared before Justice Erlanger, claiming that there was no law on the books to justify her continued detention. By now, June 29, 1909, there had been a few developments in her favor: fifty additional persons had been identified as typhoid carriers in New York State alone and yet none of them had been confined to North Brother Island or to jail. The ‘health menace’ she had represented two years earlier had faded somewhat in the public’s memory.
The spin on the news story had changed. Even some of her jailers began to sound sympathetic and troubled by the implications of her case.
Chapter Nine
Habeas Corpus
There’s a fingerprint smudge on the handwritten affidavit of Mary Mallon aka Typhoid Mary, dated April 12, 1909, where she seems to have attempted to rub away an extra consonant in the word ‘anything’. The penmanship is excellent – classic Palmer method, with nice loops and valleys – and the spacing is neat, for the first few pages. But as the impassioned, and at times angry account proceeds, the writing gets sloppier, the text takes on a downhill slant, the content becomes less diplomatic. It’s a fascinating peek inside the head of a very angry cook and it’s almost all we’ve got to remember her by. In her answer to the affidavit of Dr. Park of the Board of Health, Mary speaks in her own words:
I am not segregated with the typhoid patients . . . there is nobody on this island that has typhoid . . . there was never any effort by the Board authorities to do anything for me excepting to cash [sic] me on the island and keep me a prisoner without being sick nor needing medical treatment . . . when I first came here [Mary did not bother with punctuation or caps – unless referring to names and titles] . . . they took two blood cultures and feces . . . [then] three times a week say Monday Wednesday and Friday respectfully until the latter part of June . . . after that they only got the feces once a week which was on Wednesday . . . now they have given me a record for nearly a year for three times a week(!!)
Mary is here referring to a document submitted by the Corporation Counsel, representing the Department of Health in response to a writ of habeas corpus from her lawyer, O’Neill. The paper chronicles the ‘bacteriological results of the examination of feces from Mary Mallon’ from dates beginning March 20, 1907 and ending June 16, 1909. And she’s half-right: scrupulous, three-time-a-week sampling continues until December of 1907, at which time things change – from three times a week to five times a month, then four times a month, sometimes three. It must have been puzzling, even suspicious, to Mary, who, like any patient who has heard troubling news, was looking for reason – any reason – to hope. Maddening also were the results. ‘No typhoid found’ for weeks in a row, followed by ‘typhoid found’ for a few days, followed by ‘no typhoid found’ and back again. Her friend Breihof, apparently, had been forgiven for his snitching, and remained devoted. He now shuttled Mary’s stool samples to the privately engaged Ferguson Laboratory for analysis in the hope of disputing the Department’s data – and there do appear to have been incongruities. The Ferguson results, without exception, found no typhoid, perhaps because Ferguson was telling the client what they wanted to hear, or maybe because Breihof was not conveying the samples in a timely fashion and they had degraded, perhaps while he enjoyed a few libations. Mary, at least, seems to have put some stock in them. The court did not.
This part of the story is troubling because at this point, Mary seems to have begun to put stock in somebody’s laboratory analysis. She is no longer sweepingly condemning all medical science – particularly when they’re telling her what she wants to hear. She’s selectively believing what some doctors and nurses are telling her – lifting bits of what they’ve said and what she’s overheard, and winnowing out that which she sees as useful to her case.
‘When I first came here I was so nervous and almost prostrated with grief and trouble my eyes began to twitch and the left eye lid became Paralyzed . . . remained in that condition for six months . . . there was an eye Specialist visited the Island three or four times a week and he was never asked to visit me I did not even get a cover for my eye . . . had to hold my hand on it whilst going about at night . . . when Dr. Wilson took charge he came to me and I told him about it . . . he said that was news to him and that he would send me his electrick [sic] battery he never did such . . . However my eye got better thanks to the Almighty God and no thanks . . .
Here she thinks better of what she was about to write, and scratches out the ‘and no thanks.’
The affidavit moves on to describe some of the medical ‘expedients’ and ‘strategies’ her warders have been using to rid Mary’s system of typhoid.
In spite of the medical staff Dr. Wilson ordered me Urotropin . . . I got that on and off for a year . . . sometimes he had it and sometimes he did not . . . I took Urotropin for about 3 months all told during the whole year . . . if I should have continued it would certainly have killed me for it was very Severe. Every one knows who is acquainted in any kind of medicine what what it’s used for Kidney trouble?
Mary, evidently, was listening to the nurses, comparing what the various doctors told her, and forming her own opinions about treatment. She had, a year before filing her habeas corpus, engaged another lab to do their own testing – and she had willingly provided samples for them. She was becoming something of a jailhouse doctor and the seemingly haphazard testing, treatments and results were obviously frustrating and provocative – suggestive of sinister motives and incompetence. What O’Neill and Breihof were telling her, culled from their own information gathering efforts, and what she had gleaned from her limited contacts on North Brother, must have offered maddening little anomalies and rays of hope which she clung to fiercely, believing those things which might reflect positively and rejecting the negative.
When in January they were about to discharge me when the resident Physician came to me and asked me where I was going when I got out of here . . . naturally I said to NY . . . so there was a stop put to my getting out of here . . . the supervising nurse told me I was a hopeless case and if I’d write to Dr. Darlington and tell him I’d go to my Sisters in Connecticut. Now I have no sister in that state or any other in the US . . .
Were the doctors and Health Department functionaries of the State of New York trying to unload the Mary Mallon problem on another state? The head nurse seemed to be doing just that. All Mary Mallon had to do was lie – tell them that she was not going to remain a New York problem – that she was going off to live with a notional sister out of state. It’s a telling detail that she refused to play ball here. And that rather than take that offer and play that game, she instead, rather stubbornly, used this episode as evidence of duplicity in her affidavit.
Then in April a friend [surely Breihof] went to Dr. Darlington and asked him where I was to go away . . . he replied that woman is all right now and she is a very Expensive woman but I cannot let her go my self . . . the Board has to sit . . . come around Saturday . . . when he did Dr. Darlington told this man I’ve nothing more to do with this woman . . . go to Dr. Studiford . . . he went to that Doctor and he said I cannot let that woman go and all the people that she gave the typhoid fever and so many deaths occurred in the families she was with . . . Dr. Studiford said to this man go and ask Mary Mallon and inveigle her to have an operation performed to have her Gall Bladder removed.
Here Mary quotes Studiford as saying, ‘She’ll have the best Surgeon in town to do the cutting.’
I said no . . . no knife will be put on me . . . I’ve nothing the matter with my gall bladder . . . Dr. Wilson asked me the very same question I also told him no . . . then he replied it might not do any good . . . also the supervising nurse asked me to have an operation performed . . . I als
o told her no and she said the remark would it not be better for you to have it done than remain here . . . I told her no . . . There is a visiting Doctor who came here in October . . . he did take quite an interest in me . . . he really thought I liked it here that I did not care for my freedom . . . he asked me if I’d take some medicine if he brought it to me . . . I said I would so he brought me some Auto-Auto tox and some pills then Dr. Wilson had already ordered me Brewers Yeast . . . at first I did not take it for I’m a little afraid of the people and I have a good right for when I came to the Department they said they were in my tract . . . later another said they were in the muscles of my bowels and lately they thought of the gall bladder.
This is not some illiterate, ignorant lumpen, oblivious and blindly disbelieving of anything to do with modern medicine. Mary Mallon sounds like a very angry convict, acutely aware of the lapses and inequities of her case. She’s been informed of the progress – or lack of it – in her treatment, appalled by the conflicting theories and opinions in her case – and underwhelmed by the level of humanitarian concern and attention paid. She sounds spiteful – and spite, a powerful motivator in many cooks, explains much of what occurs later.
I have been in fact a peep show for Everybody even the Interns had to come to see me and ask about the facts already known to the whole wide world . . . the Tuberculosis would say there she is the kidnapped woman . . . Dr. Parks has even had me Illustrated in Chicago . . . I wonder if he, Said Dr. Wm. H. Park, would like to be insulted and put in the Journal and him or his wife called Typhoid William Park.
On this up note the affidavit ends. It is interesting that Mary has chosen to be so publicly indignant. There are indications that she had simply played the part of the confused and helpless victim of circumstances.
O’Neill’s petition to the court was more carefully worded and succinct:
. . . Said Mary Mallon is being confined without commitment or other order of any Court within the State of New York, or that of any other person or authority having power to restrain her, in a building connected with the Riverside Hospital, North Brother Island . . .
That said Mary Mallon is in perfect physical condition, and has since March 6th, 1907 the date whereon she forcibly and without warrant or order of any character [was] placed in the custody of the department of Health, never been obliged to receive the care and attention of a physician or surgeon, and that she is not in any way or any degree a menace to the community or any part thereof.
He goes on to urge the court in argument to allow Mary Mallon her immediate freedom.
If such an act as this can be done in the case of any person said to be infected with typhoid germs, it can be perpetrated in the cases of thousands of persons in this city who might be infected with tuberculosis and other kindred diseases. If the mere statement that a person is infected with germs is sufficient then the person can be taken away from his or her home and family and locked up on North Brother Island. That is what has happened in this case.
We absolutely deny that this woman has ever suffered or is now suffering from the affliction alleged. It may be safely assumed and we have charged that in some of the households where this woman was employed the conditions were most unsatisfactory and unsanitary and the cases of typhoid referred to by the officials of the Health Department may undoubtedly be ascribed to this.
This woman has been a victim of unfortunate circumstances in having been employed in houses where typhoid broke out, the disease having been unquestionably the result of conditions which she had nothing to do with.
It’s an impassioned-sounding and clever argument. It offers the artfully crafted statement that Mary was not ‘suffering’ from typhoid, and suggests an alternate theory of the case – and not an unreasonable one. There were other typhoid carriers out there. There were other causes. While the circumstantial evidence provided by Soper was compelling (the original letter drawing attention to the case was suspiciously lost) it was shaky in spots. And the prospect of any contagious patients being hounded – without due process – into isolation wards was a very real one.
In support of the Department of Health were affidavits from Soper and Dr. Westmoreland, the resident physician at Riverside Hospital, stating that Mary Mallon was, in fact, infected with the typhoid bacilli and that during a period of eight years she had been responsible for twenty-six known cases. Turning the knife, mention was made of the ‘severe struggle’ it took to apprehend her.
Press observers speculated on her fighting ability and weight class, wondering out loud how much trouble she’d be able to give the cops should they have to come for her again. She was ‘rosy as you please and [looked] as though she could make . . . valid resistance’. This account goes on to describe her woefully holding a page from a Sunday newspaper. It is doubtful, judging from her affidavit, that she was happy to have her face in the papers under the header ‘Typhoid Mary’, but this particular journalist thought otherwise. ‘She held in her pocket a page . . . a picture of Typhoid Mary dropping skulls into a skillet, Mary seemed to think that was a good picture of herself notwithstanding the sentiment.’
The usual suspects gave background interviews. One Health Department source claimed that ‘if she should be set to work in a milk store tomorrow in three months she could accomplish as much as a hostile army.’ A Dr. Walter O. Beusal of Bellevue refers to her as a ‘great menace to public health, a danger to the community, and on that account she has been made a prisoner. In her wake are many cases of typhoid, she having disseminated – or as we might say, sprinkled – germs in various households. Mary exhales thousands of typhoid germs with every breath she expels. She has been doing this for several years, the juggler of germs say . . . a human typhoid fever factory . . .’
That typhoid fever is not generally ‘sprinkled’ or spread by airborne transmission seemed to matter not to Dr. Beusal. Even Dr. Park seems to have cranked up the hyperbole a bit, admitting that while many other carriers existed, Mary was ‘the chief’, because of her profession and her known belligerence.
Of course, O’Neill was exactly wrong. The Department of Health did have the power to arbitrarily lock up anyone they damn pleased. Their strange and terrible powers went further than that; Section 1170 of the Charter of Greater New York states specifically:
Said board may remove or cause to be removed to proper place . . . any person sick with any contagious, pestilential or infectious disease; shall have exclusive control of the hospitals for the treatment of such cases.
Section 24, Chapter 383 of the Laws of 1903 goes further:
It shall require the isolation of all persons and things exposed to such diseases . . . It shall prohibit and prevent all intercourse and communication with or use of infected premises, places and things.
Counsel refers to the legal precedent of Seavey vs. Preble, where the judge ruled that:
To accomplish and prevent the spread of contagious or infected disease, persons may be seized and restrained of their liberty and ordered to leave the state; private houses may be converted into hospitals and made subject to hospital regulations, buildings may be torn down; infected articles seized and destroyed, and many other things done which, under ordinary circumstances, would be considered gross outrage on the rights of persons and property . . . When the public health and human life are concerned, the law requires the highest degree of care. It will not allow of experiments to see if the less degree of care will not answer . . .
People ex rel. Lodes vs. Department of Health:
Boards of health . . . act summarily, and it has not been usual anywhere to require them to give a hearing . . . before they can exercise their jurisdiction.
The final nail was Section 42, page 102:
The danger to the public health is a sufficient ground for the exercise of police power in the restraint of liberty of such persons.
The court came down on the side of caution and established law. Justice Erlanger, on July 16, 1909, ruled that:
The risk
of discharging the inmate of the Riverside Hospital is too great to be assumed by the Court. The injury which may be done to innocent persons . . . are incalculable . . . While the court deeply sympathizes with this unfortunate woman, it must protect the community against a recurrence of spreading the disease.
Justice Erlanger was, however, troubled by some aspects of the case before him. He offered that ‘Every opportunity should . . . be afforded this unfortunate woman to establish, if she can, that she has been fully cured. And she may, after further examination of her . . . renew the application, or, if the petitioner prefers, the matter may be sent to a referee . . . to take testimony and report to the court with his opinion . . . This will allow her the opportunity to cross examine witnesses called against her and to offer her own medical experts to sustain her claim.’
This part of the opinion could not have brought joy to the Health department. Over the next few weeks and months, it is probable that they had to give serious consideration to how amateur sleuth George Soper would hold up under a withering cross-examination. A ‘battle of the experts’ is something no attorney likes to deal with, especially when the subject matter is at the very spear tip of medical theory and practice. There were documents missing. Varying and contradictory and plainly wrongheaded accounts given to newspapers. And the petitioner cut a sympathetic figure. There were troubling implications for anyone sick with a contagious illness or for anyone who was caring for a family member with such an illness. There was the Irish dimension – the Health Department could, without too much trouble, be portrayed as anti-Irish in its policies. All too many immigrants from all over the world had endured all sorts of outrage on Ellis Island and at the hands of the Health Police. The judge was aware of this when he ordered that Mary’s living conditions on the island be ‘examined and ameliorated.’
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