Pox
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Nothing in the conservative biblical doctrine of Swedish Lutheranism dictated defiance to vaccination, but Jacobson practiced a form of pietism that filled the daily details of life with religious significance. His brief to the Massachusetts Supreme Judicial Court—written by his lawyers but submitted under his name—decried compulsory vaccination as an unconscionable state sacrament. “We have on our statute book,” it said, “a law that compels such a man to offer up his body to pollution and filth and disease; that compels him to submit to a barbarous ceremonial of blood-poisoning.”5
That reference to blood-poisoning held a literal meaning for Jacobson. Though antivaccinationism ran rife in the Swedish countryside, he had undergone vaccination as a child, in accordance with national law. Early childhood vaccination spread quickly in Sweden after 1800 and became compulsory in 1816—nearly forty years before Massachusetts enacted America’s first vaccination law. Sweden was an international public health success story, championed in the American medical literature. Smallpox killed 300,000 people in the country between 1750 and 1800, most of them children. Mortality levels fell sharply after the introduction of vaccination, and by 1900 the disease had virtually disappeared. But young Henning’s vaccination had gone badly. He experienced “great and extreme suffering” that instilled in him a lifelong horror of the practice. Henning and Hattie Jacobson knew all too well the perils of a nineteenth-century childhood. Married for eighteen years by the time a U.S. Census-taker knocked on their door in 1900, they had created five children together, but only three survived. One of Jacobson’s boys (he did not say which) suffered adverse effects from a childhood vaccination, convincing the minister that some hereditary condition in his family made vaccine a particular hazard for them. Jacobson’s belief that smallpox vaccine threatened his family’s existence seemed as deeply ingrained as his religious faith.6
Pastor Henning Jacobson, circa 1902. COURTESY OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA
If Jacobson made an unlikely rabble-rouser, neither did the man who stood across his threshold that March day fit the part of the heartless bureaucrat. E. Edwin Spencer had a starkly different medical background and leadership style from his counterpart across the Charles River, Chairman Samuel Durgin of the Boston Board of Health. Unlike the Harvardeducated Durgin, Spencer had studied a form of alternative medicine. Born to a Rhode Island farming family in 1833, he graduated from the Eclectic Medical College in Cincinnati, a young institution that considered itself a citadel of freedom in medical education. The eclectics favored botanical remedies, eschewing “heroic” interventions and mercurial medicines. Spencer moved to Massachusetts and received another degree from the short-lived Worcester Medical College, an eclectic school that received its charter from the state in 1849 over strenuous professional opposition. He settled in Cambridge, where he practiced medicine, held the office of city physician, and earned an appointment to the board of health.7
Working in a field dominated by allopathic physicians, Spencer never severed his ties to “irregular” medicine. A onetime president of the Massachusetts Eclectic Medical Society, he remained an officer of that organization until his death in 1903. Unlike many eclectics, Spencer believed in the theory of vaccination. But he showed a marked reluctance to impose the beliefs of the mainstream medical profession upon unwilling members of the public. It is hard to imagine Spencer relishing a public confrontation with Immanuel Pfeiffer. In his interactions with Jacobson, Spencer proceeded with caution and deliberation, as he had ever since smallpox first broke out in Cambridge several months earlier.
Smallpox had already been spreading for months in Boston and other cities of eastern Massachusetts by the time Cambridge reported its first case on October 25, 1901. The outbreak, in a tenement by the Charles River, still caught the city unprepared. Despite the entreaties of the board of health—a three-member board consisting of Dr. Spencer and two laymen, lawyer William Peabody and engineer Charles Harris—the city government had balked at spending taxpayer money on precautionary measures. Cambridge had no pesthouse, and in recent years vaccination had fallen off. Harvard required all of its students and employees, from the professors to the African American waiters at Memorial Hall, to get vaccinated; during the months to come the university reported not a single case of smallpox. But Harvard and the elite bastions of Brattle Street and Avon Hill stood as islands of privileged homogeneity in a diverse city of 95,000 people that teemed with brickworks, factories, and thickly settled neighborhoods. By the end of December, the city suffered fifteen smallpox cases, three of them fatal.8
Spencer’s response was decisive but temperate. The board established a pesthouse on New Street, near the Fresh Pond marshes, and opened public vaccination stations, where thousands of citizens lined up for free vaccine. The voluntary vaccination effort hit a setback on January 4, when the Cambridge Chronicle reported that Annie Caswell, just five years old, had “died of tetanus, or lockjaw, following vaccination.” The news came less than one month after the last Camden, New Jersey, child had died from postvaccination tetanus. According to the report, the doctors who had tried to save Annie believed “the vaccine used might have been impure or that some foreign substance may have gotten into the sore.” Dr. Edwin Farnham, the chief inspector for the Cambridge Board of Health, swiftly declared his belief that vaccination could not have caused Annie’s death. There would be no investigation.9
As the outbreak of smallpox continued, with twenty-six cases and three more deaths reported during January and February 1902, the board declined to use its full powers. Spencer publicly defended his cautious quarantine policy, saying the city had “no right” to placard the home of a resident merely because she may have been exposed to smallpox. The board must be “absolutely certain” the resident had been infected. And the board held on to compulsory vaccination as a last resort.10
Spencer seemed determined to avoid the sort of public standoffs with antivaccinationists that the more aggressive actions of Durgin’s Boston board had sparked in the streets, the criminal courts, and the State House. That January, as the Boston virus squad stepped up enforcement in working-class neighborhoods, the doctors and police had run up against many determined refusers, including nineteen residents willing to face prosecution rather than submit.11
Charles E. Cate, a South End laborer, refused vaccination even as his wife lay sick in the Southampton Street pesthouse; he served fifteen days in Charlestown Jail rather than pay his $5 fine. As a force of 125 city-employed physicians moved from house to house in East Boston, vaccinating five thousand residents in a single day, a Canadian-born grocer named John H. Mugford refused to allow Dr. John Ames to vaccinate him or his daughter, Eva. Dr. Ames assured Mugford that the vaccine points he carried, on small quills, were perfectly safe. But Mugford did not relent. “I told him I studied the question too long to allow any poison to be put into my system,” the grocer testified at his trial. The court found Mugford guilty on both charges of refusing vaccination. He appealed his case to the Supreme Judicial Court.12
Even when Spencer’s Cambridge board finally took steps to enforce vaccination, it moved with an exceptional degree of caution. The board ordered vaccination on February 27, 1902. Spencer waited two more weeks before dividing the city into districts and sending seventeen physicians from house to house to vaccinate “all the inhabitants they could find.” Thousands were vaccinated in this way, while better-heeled citizens paid their family doctors to perform the procedure. For the city vaccinators, finding the inhabitants was not always easy. Some bolted. Others shooed the doctors from their doorsteps. The board compiled a catalogue, containing a card for every house in a large swath of the city. Each card listed the names of the inhabitants and the date each had last been vaccinated. Vaccine refusers were noted. Among them were Albert M. Pear, a prominent city official, and Pastor Henning Jacobson, whom Spencer visited himself. The board prosecuted no one.13
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.14
At 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.15
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.”16
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.17
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.18
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.19
On 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.20
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.21
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.22
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.23
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.24
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.25
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 .26
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.27
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.28