Part 9 (2/2)

37 Ibid., 24.

38 Ibid., 46.

39 ”Smallpox History.” ”An $18.30 Tax Rate,” CC, Aug. 23, 1902, 1. ”Smallpox Annihilated,” ibid., Sept. 6, 1902, 5. CAMBOH 1902, 9, 2226.

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

41 ”Jacobson SJC Brief,” 1819.

42 ”About the Court,” Supreme Judicial Court Web site, pulsory 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 pet.i.tion 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): 44151, esp. 450.

62 Freund, Police Power, 478.

63 Ballard in ”Jacobson SJC Brief,” 36.

64 Abeel v. Clark, 84 Cal. 226 (1890).

65 Duffield v. Williamsport School District, 162 Pa. 476, 482 (1894). ”Note,” PABOH 1903, vol. II, 918.

66 Duffield v. Williamsport School District, 162 Pa. 476 (1894). Boyd's Directory of Williamsport, 1899 (Reading, PA, 1899), 167, 402. Historical Sketches of the Bench and Bar of Lycoming County, Pennsylvania (1961), pulsory vaccination was defensible. Tiedeman, Limitations, 32.

67 Duffield v. Williamsport School District, 162 Pa. 476, 483, 484 (1894).

68 Lawton v. Steele, 152 U.S. 133, 152 (1894).

69 See, e.g., Abeel v. Clark, 84 Cal. 226 (1890); Bissell v. Davison, 65 Conn. 183 (1894); Viemeister v. White, 179 N.Y. 235 (1904). See ”Compulsory Vaccination,” Yale Law Journal, 12 (1903): 5046; ”Public Schools: Conditions of Attendance,” ibid., 13 (1904): 261. ”Bancroft SJC Jacobson Brief,” 8.

70 Adams v. Burdge, 95 Wis. 390 (1897).

71 Ibid.

72 Adams v. Burdge, 95 Wis. 390, 400, 404, 405 (1897). ”Silas U. Pinney (18331899),” munity can be required to submit to compulsory measures for the common good,” writes Lawrence Gostin of the harm avoidance principle. ”The control measure itself, however, should not pose a health risk to its subject.” Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint (Berkeley and Los Angeles: University of California Press, 2000), 69.

88 Wong Wai v. Williamson, 103 F. 1, 7, 10 (1900). Charles J. McLain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America (Berkeley and Los Angeles: University of California Press, 1994), 23476. Henry Bixby Hemenway, Legal Principles of Public Health Administration (Chicago: T. H. Flood & Co., 1914), 633: ”Few diseases have been more subjected to judicial inquiry than smallpox.” Tobey, Public Health Law (1926), 118: ”A few decades ago, it seems as if the bulk of court decisions arose out of conditions in which smallpox was the princ.i.p.al factor.”

89 ”Jacobson SJC Brief,” 3, 14, 16, 18. ”Pear SJC Brief,” 3, 14, 16, 18.

90 ”Marcus Perrin Knowlton,” memorial, 231 Ma.s.s. 615 (1919).

91 Commonwealth v. Pear; Same v. Jacobson, 183 Ma.s.s. 243, 245 (1903).

92 Commonwealth v. Pear; Same v. Jacobson, 183 Ma.s.s. 243, 246, 248 (1903).

93 Commonwealth v. Pear; Same v. Jacobson, 183 Ma.s.s. 243, 248 (1903).

94 ”Virus Squad Out,” BG, Nov. 18, 1901, 7. Antivaccinationist literature after 1903 noted the noforce principle articulated in Commonwealth v. Pear; Same v. Jacobson. See, for example, Charles M. Higgins, Open Your Eyes Wide! Parents, School Officers, Editors, Judges, Legislators, Doctors; And Look at These Facts About Vaccination, 2d ed. (London: Anti-Vaccination League of America, 1912), 15.

95 Commonwealth v. Mugford; Same v. Same, 183 Ma.s.s. 249. There was a straightforward reason why the SJC would identify Jacobson rather than Pear as governing. Mugford, like Jacobson, had raised two questions: const.i.tutionality of the statute and admissibility of evidence. Like Jacobson, Mugford had tried to put vaccination itself on trial by presenting medical evidence as to its dangers. Pear had made only the const.i.tutional case.

96 ”Jacobson USSC Transcript,” 2122.

97 See, e.g., J. C. Henderson, ”An Appeal,” Life (New York), Sept. 24, 1903, 288; Stuart Close, ”Drug Diseases and Compulsory Medicine,” Medical Advance and Journal of Homeopathics (Chicago), 41 (Nov. 1903), 588. On the Court's writ of certiorari, see Currie, Const.i.tution in the Supreme Court, vol. 2, 5.

98 Geoffrey T. Blodgett, ”The Mind of the Boston Mugwump,” Mississippi Valley Historical Review, 48 (1962), 61434. Gordon S. Wood, ”The Ma.s.sachusetts Mugwumps,” New England Quarterly, 33 (1960), 43551. ”Williams, George Fred,” Who's Who in New England, ed. Albert Nelson Marquis, (Chicago: A. N. Marquis & Company, 1916), 1160.

99 ”George Fred Williams' Platform,” in The Commoner Condensed, ed. William Jennings Bryan (Lincoln, NE: The Woodruff-Collins Printing Co., 1903), 344. George Fred Williams, ”Our Real Masters,” Arena, Jan. 1903, 712. ”In the Mirror of the Present,” Arena, Oct. 1906, 40510, esp. 408. Dunbar v. Dunbar, 190 U.S. 340 (1903).

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