Typhoid Mary

by Judith Walzer Leavitt

  The precipitating events that allowed for Mary Mallon and lawyer George Francis O’Neill to begin habeas corpus proceedings remain somewhat hidden. The New York American reporter covering the case believed that “some welathy [sic] New Yorkers” supported Mary Mallon in her effort to seek release after reading of her plight in the newspaper’s pages on June 20, 1909, in an article that moved them to “pity for the lone woman who has not a relative or a friend to whom she can turn.”12 The reporter did not identify the benefactors. Possibly William Randolph Hearst himself funded the legal proceedings—he had done so for other people whose stories interested his newspaper’s readers—but we can only speculate on whether and why he may have helped Mallon.13 The June 20 story in the American was no doubt important to the case and critical to the release of Mallon’s actual identity. However, it seems unlikely that it was the sole cause of Mallon’s legal suit.

  Mary Mallon had been determined to obtain her freedom from the early moments of her detention. She resisted strenuously when she was first arrested in 1907, and she continued during her years on the island to indicate that she did not accept her isolation. Presumably with an eye toward her ultimate freedom, Mallon obtained private laboratory analyses of her feces and urine beginning in July, 1908, a full year before her court appearance. Continuing through August and September of that year, she sent specimens to be analyzed at the Ferguson Laboratory on 42nd Street in Manhattan. It is unlikely she would have bothered to do this if she were not planning some sort of attempt to prove her innocence. After a six-month hiatus, she resumed her quest for private laboratory opinion in April, 1909, sending seven more samples to George Ferguson in that month alone. Mallon then wrote to Ferguson directly seeking information about all of her specimens and received a response that “none of the specimens submitted by you, of urine and feces, have shown Typhoid colonies.”14 It appears from this active communication and documentation of a pattern of negative stool samples that Mallon was planning a legal battle at least as early as April, 1909, if not eight months earlier when she had sent her first feces samples to the laboratory. The legal action ultimately materialized a week after publication of the American article at the end of June, 1909.

  It is possible that Mary Mallon could not, or thought she could not, financially support legal proceedings until the newspaper publicity generated the money. Lawyer O’Neill’s connection to her cannot be documented until after June 20 when his services seem to have been made possible through the benefaction of Hearst or the newspaper’s readers, as the reporter suggested. If late June was in fact the first time she consulted with legal counsel, Mallon’s previous preparations and documentation through the Ferguson Laboratory served her well in bringing the case quickly to the court of justice. The New York American article appeared in the Sunday edition, June 20, 1909; eight days later O’Neill filed the habeas corpus petition hoping it would lead to Mary Mallon’s release from her North Brother Island detention.15

  The June 20, 1909, article, which originated public knowledge about Mary Mallon and revealed her identity, contained a short reportorial statement about Mary Mallon’s “predicament.” She “is a prisoner for life,” wrote the reporter, even though “she has committed no crime, has never been accused of an immoral or wicked act, and has never been a prisoner in any court, nor has she been sentenced to imprisonment by any judge.” The newspaper added some “curious facts” about typhoid fever and the difficulties of medical detection work.16 The prose was surprisingly unsensationalistic for a Hearst newspaper, but the alarming illustrations and photographs were certain to grab readers’ attention (see fig. 5.2 and chap. 5 for more on this first news account of Mary Mallon).

  The story in the newspaper, whose Sunday circulation reached almost 800,000 New Yorkers, did not question the city’s legal right to imprison Mallon for life.17 In fact, the reporter assumed this would be her fate: “Mary Mallon will probably be a prisoner for life on the Quarantine Island in East River.” On these pages, William Park, too, seemed to have conquered whatever doubts he had originally felt about the city’s right to hold Mallon, concluding, “It is clear that she will be a prisoner on North Brother Island for a long time, perhaps for life.”18 Yet this was not attorney O’Neill’s opinion of what the law demanded.

  George Francis O’Neill was thirty-four years old when he took on Mary Mallon’s case. The young lawyer had been a customs inspector before being admitted to the New York state bar on May 13, 1907, almost two months after Mallon’s incarceration. The New York Times identified him as a medical-legal expert, although his legal experience was still very new. Six months after Mallon’s habeas corpus hearing, the Medico-Legal Society engaged O’Neill as the personal counsel to Albert Patrick when he sought a pardon on the charge of killing Texas millionaire George Marsh Rice. That case, like Mary Mallon’s, rested on medical evidence, and the governor ultimately pardoned Patrick. The record does not reveal very much else about George Francis O’Neill’s legal practice. He shared office space with other lawyers; he stood twice as the Republican candidate for the state senate from the 22nd district, apparently unsuccessfully. His physicians diagnosed tuberculosis in 1913, after which time O’Neill traveled outside of New York to try to regain his health. Unsuccessful in this attempt, he died on December 23, 1914, at thirty-nine years of age.19

  Whatever convinced George Francis O’Neill to take Mary Mallon’s case, he was active in his pursuit of justice as he saw it. Scribbled in the court records are two notes that reveal his state of mind. In one he wrote, “absurd to take woman on an alleged report in which no name is mentioned—[.]” He must refer here to the city’s seizing of Mallon based on Soper’s report, although one assumes that Soper did indeed use her name in his communication with health department officials even though he did not reveal it in the public record.20 O’Neill’s designation of the city’s behavior as “absurd” showed his confidence that Mallon might be released. In the second note, he scribbled, “Had a right to examine first and then take, not take and then examine,” again a seeming reference to the city’s initial actions in March, 1907, when Baker and the health department took Mallon against her will to the Willard Parker Hospital and did not release her again.21 O’Neill admitted here that the city could under its own regulations examine Mary Mallon, but they could not immediately take her. Both the notes emphasize lack of due process, the key point in O’Neill’s legal argument at the habeas corpus hearing.

  O’Neill petitioned in the writ on behalf of Mallon that she “is imprisoned or restrained in his [sic] liberty in Riverside Hospital, North Brother Island, N.Y.,” and that the cause of her restraint was “unknown.” He asked that the superintendent of Riverside Hospital be required to “produce said Mary Mallon before . . . a Justice of the Supreme Court.”22

  O’Neill filed this writ of habeas corpus to test the legality of Mallon’s detention in a court of law.23 The health department had no choice but to bring Mary Mallon before the New York Supreme Court, where Judges Mitchell Erlanger and Leonard Giegerich heard the arguments in late June and early July, 1909. The health department stated for the record that Mary Mallon was confined on North Brother Island “for the reason that she is infected with the bacilli of typhoid, and is undergoing treatment under the care of physicians therein.”24

  From our late-twentieth-century perspective, it is interesting to realize that the legal issues debated in 1909 were Mallon’s rights as a carrier and the health department’s obligations vis à vis healthy typhoid fever carriers in general. No one at the time, as far as I have been able to determine, worried about the rights of Mary Mallon’s “victims” and their families. No family for whom Mary Mallon worked brought suit or entered the debate in any way. The newspapers freely used the names of those who had employed Mallon as a cook, including such socially prominent names as J. Coleman Drayton and Henry Gilsey. The families’ rights to privacy were abridged repeatedly, and details of their private lives and the losses they suffered were held up to pu
blic scrutiny.25 As sympathetic as observers might have been to the plight of those who were said to have contracted typhoid fever from Mary Mallon (or died from it), the victims were not the subject of the legal discussions, nor did they seek revenge or enter the debate then as they might try to do today.

  Legal historians have documented how judicial interpretations of the law—even of the Constitution—change significantly over time. Whereas late-twentieth-century courts are extremely vigilant of individual rights and due process, early-twentieth-century judges demonstrated a “preference for social control over individual autonomy,” a point of view that was evident in these 1909 proceedings. As legal analyst Larry Gostin has demonstrated: “Courts [in the early part of the century] tended to uphold public health statutes as long as the state did not act in ‘an arbitrary, unreasonable manner’ or go ‘beyond what was reasonably required for the safety of the public.’ ” These early assessments about what was reasonably required increasingly rested on medical opinion and evidence.26

  Mary Mallon’s habeas corpus case can be best understood historically in its proper legal context, following as it did closely on the heels of the 1905 United States Supreme Court decision Jacobson v. Massachusetts. That case involved a Massachusetts citizen, Henning Jacobson, who did not want to submit to vaccination against smallpox. The state legislature had empowered the boards of health to require vaccination if an epidemic of smallpox threatened; the Cambridge Board of Health adopted such a regulation when smallpox appeared in the city and ordered all inhabitants to be vaccinated. Jacobson argued that the ruling violated his individual rights. Justice Harlan and six of his colleagues on the Supreme Court thought otherwise:

  The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. . . . Real liberty for all could not exist under the operation of the principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.27

  The most important issue for Justice Harlan, as it was four years later for Judge Erlanger, was the danger to other people posed by individuals or groups who would not cooperate with health officials. Both judges might have also agreed that there were limits to how far the state could go in protecting the public health. Nowhere in the U.S. Supreme Court decision did the justices rule that people could be forcibly vaccinated against their will. As legal expert James Tobey concluded from his analysis of vaccination laws in general and Jacobson v. Massachusetts in particular, “Compulsory vaccination means that all persons may be required to submit to vaccination for the common good, and if they refuse . . . they may be arrested, fined, imprisoned, quarantined, isolated, or excluded from school . . . but they cannot be forcibly vaccinated, desirable as such a procedure might be from the standpoint of public health protection.”28 Individual liberty and public health, thus, could be protected simultaneously under compulsory vaccination provisions, but there were limits on each.

  In this tradition, the New York health officials and their lawyers based the city’s right to hold Mary Mallon on its obligation to protect the public’s health. Under the provision of police powers, resting with the state and in this case delegated to the city and to its board of health, city physicians justified their inspection, quarantine, and health laws of every description. As Chief Justice John Marshall had defined these obligations, they constituted “the acknowledged power of a State to provide for the health of its citizens.”29 Laws aimed at public health protection were subject to limitations, of course, based upon constitutional rights of citizens. The Fourteenth Amendment requires that no state shall deprive a person of life, liberty, or property without due process of law. Mallon’s right to a habeas corpus hearing demonstrated that the courts had the power to curb a city’s right to isolate one of its citizens. O’Neill’s petition for Mallon’s release brought up the questions of how far and under what circumstances the New York City Health Department could abridge one citizen’s rights in its efforts to protect the health of others.

  Corporation Counsel Francis K. Pendleton and George P. Nicholson, counsel to the health department, based their argument during Mary Mallon’s habeas corpus hearing on sections 1169 and 1170 of the city code (see above). “It is evident,” they wrote, “that sufficient power rests in the Board of Health for the isolation of Mary Mallon”—evident, they believed, because of laboratory results showing her to be “infected with the contagious bacilli of Typhoid in large quantities.”30 In support of this conclusion, the lawyers presented the numerous positive laboratory reports of Mallon’s stool samples.

  Section 1170 gave the health department authority over “any person sick with any contagious, pestilential or infectious disease” (my emphasis). One relevant question was whether a law written to cover “any person sick” applied to a person who was well but who carried bacilli that could make other people sick. Could a healthy person who was shown in laboratory reports to be carrying pathogenic bacilli be, for legal purposes, considered sick under this clause? This was one of the points that O’Neill wanted to question most seriously. Was a medical conclusion based on laboratory evidence—especially in this early-twentieth-century era when bacteriological evidence was new and not yet systematically applied—sufficient to define a person who felt healthy as sick?

  In chapter 2 we looked at the New York City Health Department rules, instituted between 1915 and 1921, that were designed to monitor and control typhoid fever cases and carriers. These attempts to broaden the sanitary code’s control of people with infectious diseases specifically to include healthy carriers (all of which followed Mary Mallon’s second incarceration) indicate that health officials did not believe the earlier laws written about sick people could rightfully be applied to healthy carriers. In 1919, Health Commissioner Royal Copeland wrote, “The one striking and conspicuous improvement now needed is in the formulation of rules and regulations to be adopted by the Board of Health for the control of typhoid carriers.”31 Copeland ultimately got the regulations he requested and in 1921 happily reported, “Perhaps the most important step made by this Bureau [of Preventable Diseases] during the year was the formation of a definite set of regulations, in cooperation with the Counsel of the Department, for control of typhoid fever carriers. Heretofore,” Copeland wrote, “the Department attempted to exercise control from time to time without any well formulated policy and without legal sanction for its requirements” (my emphasis).32 By the department’s own later admission, then, not until 1921 did the laws allowing for the isolation of the sick rightfully apply to healthy carriers of typhoid fever.33

  Yet here in 1909 were department officials appearing in a New York court of law claiming that the laws then on the books were sufficient to detain Mary Mallon. The health officials who appeared in the New York Supreme Court at the habeas corpus hearing to defend their isolation of Mary Mallon voiced no doubts about whether the laws designed to control the sick could be applied to the seemingly healthy. They simply presented the sections of the city code as if they applied to Mallon. They assumed without questioning that they already had the authority they needed. Using the language of the new science of bacteriology to define Mallon as effectively sick, laboratory-defined sick because she could spread disease, they masked the ambiguity of the laws and, apparently, the judge allowed this to pass without comment.

  With the health department defining Mallon as sick because she harbored pathogenic bacteria, O’Neill was left to insist that Mallon was not sick because she had no physical symptoms and therefore could not be a health menace to the community. O’Neill did not challenge the authority of the health officials over the sick, and he thus lost an opportunity to challenge and have the judge define more precisely the extension of health depart
ment authority to healthy individuals who happened to be disease carriers.

  O’Neill’s key point in his effort to “discharg[e] the said Mary Mallon from the care and custody of the Department of Health of the City of New York” concerned what he saw as the abridgment of her constitutional right to due process. He argued that the health department did not follow due process in its incarceration of Mary Mallon in 1907: “The said Mary Mallon is being confined without commitment or any other order of any Court within the State of New York, or that of any other person or authority having power to restrain her.” He insisted that the health department, given this situation, could not legally continue to isolate her indefinitely. Mallon had not had her day in court.34

  There really was no disputing this point. Soper himself admitted when he later related her story, “She was held without being given a hearing; she was apparently under life sentence; it was contrary to the Constitution of the United States to hold her under the circumstances.”35 When O’Neill petitioned for Mallon’s release in the writ of habeas corpus filed before the New York Supreme Court on June 28, 1909, it was the first (and, as it happened, the last) time her case was subject to judicial review.36 O’Neill was clearly correct in pointing out that no court of law had yet ruled on the legal issues in the case. But his emphasis on due process was not uppermost in the mind of the judge. The Court focused on whether or not the health department had overstepped its authority in keeping Mary Mallon separated from the general population, rather than on the process officials used to do so. The overarching question for the judge was whether public health protection demanded that healthy carriers like Mallon be isolated from the public.