While researching resistance against vaccine mandates, I came across this fascinating case from 1894 where an early-day “Dr. Fauci” locked up two men who refused the smallpox vaccine. Instead of taking the vaccine or accepting house arrest, the men sued and name heroes for their fight against Tyranny. This column is running at Real Clear Politics on Monday.
A History Lesson About Petty Tyrants & Vaccine Mandates
By Frank Miele
Vaccine mandates are nothing new. Nor are petty tyrants. Nor is Joe Biden the first person to try to use the police powers of the state to compel Americans to violate their own personal convictions and take a vaccine they find to be unnecessary if not dangerous.
More than 125 years ago, a Brooklyn, N.Y., commissioner of health named Z. Taylor Emery demanded that two men who worked in delivery services be locked up until they “submitted to vaccination” for smallpox. William Smith and his employee Thomas Cummings had no known exposure to smallpox, but they were nonetheless put into a weeks-long quarantine lockdown by Emery, whom they promptly sued for false imprisonment.
The facts of this 1894 case (read here, starting at original page 325) provide a fascinating mirror in microcosm of what we as a nation are undergoing today. Not too many months ago, President Biden and Dr. Anthony Fauci agreed that vaccine mandates were immoral and unconstitutional, but since then they apparently have realized that medical mandates are also the easiest way to corral and control the American public into obedience.
Forget that vaccination doesn’t protect you from becoming ill from COVID-19. Forget that CDC data shows the vaccine itself has caused thousands of deathsand countless injuries. Forget that the latest variant of the virus — the so-called omicron strain — actually appears to be considerably less severe than the prior versions. (Symptoms are about equivalent to that other famous virus, the common cold!) None of that matters as long as free people can be trained to line up dutifully like Pavlov’s dogs every time the government rolls out a new booster shot. Woof! Woof!
Fortunately, after a month of victories in lower courts, the proponents of liberty and specifically medical autonomy have the upper hand. The Biden administration’s arbitrary mandates have all been temporarily halted, but as the story of Dr. Emery’s crusade against smallpox warns us, what one court forbids, another will happily allow.
Here are the frightening details that remind us how easily, with the help of self-appointed Big Brothers, even 1894 can be transposed into Orwell’s authoritarian “1984”:
Brooklyn was in the midst of a smallpox epidemic; Smith and Cummings were not vaccinated against the disease; and yet they chose to continue working in Brooklyn despite the health risk to themselves. When Emery, the local health commissioner, heard about the pair, he took drastic steps.
“It appears that the said commissioner had confined them in the building where they carried on their business by stationing at their door police officers who prevented them from coming out or anyone else from going in,” wrote Judge William Gaynor in his ruling as he took aim at Emery.
Gaynor framed the case for medical autonomy perfectly:
“If the commissioner had the power to imprison an individual for refusing to submit to vaccination, I see no reason why he could not also imprison one for refusing to swallow some dose. But the legislature has conferred no such power upon him, if, indeed, it has the power to do the like.”
Likewise, Congress has not given the president the power to order companies to fire employees for refusing to be vaccinated, nor for that matter has it authorized locking up U.S. citizens when they return from abroad even though they have no sign of infection or disease. The only crime such people have committed is going against the wishes of the president and his handlers.
In his 1894 ruling, Gaynor made a clear distinction between the legal authority of the state to quarantine anyone “infected with or exposed to” contagious disease and locking up entirely healthy people with no specific contact with the disease simply because they chose not to be vaccinated.
Like the weaponization of medicine being employed against the unvaccinated by the Biden administration, Dr. Emery’s “quarantine” was strictly to compel behavior from individuals who did not think it in their best interest to comply voluntarily. It was the power of the state to force the individual to submit.
“There is no claim that the petitioners are infected or have been actually exposed to infection,” Gaynor wrote. “But even if they were subjects for isolation by reason of infection or exposure, thereto, they could [only] be detained while such, and not indefinitely until they yielded their bodies to vaccination.”
Judge Gaynor noted that “life, liberty and property are invaluable” and can only be removed by the state “by express law, and due process of law.”
In words that should be memorized by every American, he reminds us that “[a]rbitrary power is abhorrent to our system of government,” and concludes that “[i]f the legislature desired to make vaccination compulsory, it would have so enacted.”
Yes, the health commissioner “in the presence of great and imminent peril of the public health” was authorized to act in good faith to protect public safety, the judge ruled. But “this does not mean that the commissioner may take unlawful measures or do unlawful acts. It must be interpreted in the light of the constitution and settled legal principles and safeguards. It does not confer on the commissioner the right to imprison any more than to take life.”
And as Gaynor rightly warns, even if vaccination were legally mandated by the legislature, “one accused under such a law would have to be tried like all other offenders in a competent court and after that due process of law which is guaranteed to every one by the constitution.”
As far as we know, Biden has no plans to lock anyone up for refusing the COVID-19 vaccination (as Germany is doing). Instead, he proposes to rob them of their livelihood until they submit, or until they test negative. They are in essence presumed to be sick until proven “innocent.”
Otherwise the cases are quite similar, and the ease with which these people had their liberty taken from them should terrify anyone who has a healthy fear of tyranny
Moreover, one lone judge is insufficient protection from those who would abuse their power. In the Brooklyn case, Gaynor’s order freeing the men was quickly overturned by the county-level Supreme Court as a whole, which seemed delighted to make excuses for why Emery had the right to do anything he wanted as long as he used public health as his justification.
“The board did not require the relators to be vaccinated, and that seems to be the error into which the relators have fallen,” wrote the panel. “They seem to assume that the Board of Health intended to compel them to be vaccinated, but the acts of the board admit of no such construction.”
Then came this remarkable subversion of the truth:
“There was neither coercion nor compulsion. They were isolated and deprived of their freedom, because they had been exposed to small-pox and were liable to be seized therewith, and by communication with others to spread the disease. That was a legitimate exercise of the power and authority vested in the board by statute, and it was unnecessary to prescribe any conditions upon which the relators could terminate their isolation; that was done for their benefit and for no other purpose.”
How reminiscent of the excuse of an abusive husband in the 19th century when he justified his own “legitimate” exercise of power: “She had it coming.”
Of course, Smith and Cummings had done nothing to warrant being deprived of their civil liberties. They merely lived in a location where several hundred people out of several hundred thousand had caught the virus. There was no specific evidence that these men had been exposed to smallpox other than the fact that they worked in Brooklyn.
Indeed, when appellate division judges reversed the lower court panel, it noted in its decision that it was an “unwarrantable inference” for anyone to believe that a health commissioner could “compel the vaccination of every citizen in the city of Brooklyn, if he would escape quarantine.”
Afterwards, Smith went so far as to sue Dr. Emery for false imprisonment, and won $641.32 in damages. The monetary award was later overturned on account of a technicality, but in doing so, the appellate court felt compelled to note that the “mere possibility” of exposure to smallpox was insufficient grounds to deprive Smith and Cummings of their freedom; they must actually have been proven to be exposed. Any claim of a potential threat posed by the two unvaccinated men was insufficient grounds to deprive them of their liberty.
If that was true in 1894, it should still be true. Smith and Cummings, two men who fought back against what they perceived as an injustice, deserve today to be lifted up out of obscurity and celebrated as heroes of the medical autonomy movement. They remind us that the cure for tyranny is not acquiescence but resistance.
(Note: Some of the details of Dr. Emery’s war against Smith and Cummings come from the first chapter of “State of Immunity,” James Colgrove’s highly readable history of “The Politics of Vaccination in Twentieth-Century America.”)
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