Pox_ An American History - Michael Willrich [170]
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