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.29
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.30
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.31
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.32
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.33
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.34
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.”35
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.”36
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.37
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.”38
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.39
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.”40
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.41
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?
The 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.42
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:
We think it is a settled principle, growing out of the nature of a well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. . . . Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law[.] The power we allude to is . . . the police power; the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth.... It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise.43
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.44
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.45
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.46
&n
bsp; 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.
The Court’s first opportunity to consider the Fourteenth Amendment involved a public health law. In 1873, delivering the majority opinion in the Slaughter-House Cases, Justice Samuel F. Miller announced that the police power had survived the war intact. The decision affirmed a Louisiana statute that had incorporated a massive slaughterhouse, located downriver from New Orleans, and forbade the slaughtering of animals elsewhere in the city. The law aimed to protect the public health by containing a noxious trade. But the law’s monopoly provision proved controversial. The plaintiffs, a group of white butchers, charged that the law violated their new rights under the first two Reconstruction amendments. Justice Miller made quick work of the butchers’ Thirteenth Amendment claim; the law, he said, did not create a system of involuntary servitude.47
The Fourteenth Amendment claims could not be so easily dismissed. The butchers grounded their claims in the amendment’s crucial first section, which had established a framework of new constitutional restraints on state power. The passage forbade any state to “abridge the privileges or immunities of citizens of the United States”; to “deprive any person of life, liberty, or property, without due process of law”; or to deny to any person the “equal protection of the laws.”48
But Justice Miller cautioned the American people that the Fourteenth Amendment had not turned the Court into “a perpetual censor” upon the states. The equal protection clause targeted only state action that discriminated against African Americans; Miller said the Court “doubt[ed] very much” whether any action not directed against “Negroes as a class . . . would ever be held to come within the purview of this provision.” The due process clause gave the federal government power to prevent the states from violating the procedural rights already protected from federal intrusion by the Fifth Amendment. Miller’s opinion read the “privileges or immunities” clause narrowly. That phrase, he said, referred to a limited array of long-standing rights, already protected by federal law, such as the right of all citizens to come to the seat of the national government; it did not apply the Bill of Rights to the states. To uphold the butchers’ claims, Miller concluded, would effect a great “departure from the structure and spirit of our institutions.” It would “fetter and degrade the State governments” by subjecting them to federal oversight “in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.”49
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