Pox_ An American History - Michael Willrich [171]
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