Pox_ An American History - Michael Willrich [169]
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
McDaniel