Progress update: Still very much under construction, but taking shape.

Outline

I'm looking at quarantine laws between the late 1870s and the first decade of the 20th Century, to see how the States and federal government worked together in the area of public health. This timeframe spans several epidemics (yellow fever and cholera), and the creation of a federal body (the National Board of Health).

The Board initially came into existence through an Act in 1879 with a sunset clause to expire in 1883. It was revived by repeal of this sunset clause in early 1883 due to its excellent performance. But after 1885, Board failed. I'm curious why it failed. My time frame ends with the creation of the first successful federal quarantine laws.

Background: Disease and Quarantine in the Late 19th Century

The 19th Century overall brought with it groundbreaking advances in medical science. Pasteur's initially radical germ theory was beginning to be accepted in the medical and public health literature by the beginning of the timeframe in this project, although not universally (here is a review of its impact in Massachusetts in the early 1870s). The literature around this time reflects great hope for rapid scientific advancement in many areas including disease origins and nature. There were hot debates both about the validity of new discoveries, and how these could best be translated into frameworks for prevention and remedy. A broad movement for public health had begun in Great Britain around the 1850s, and was slowly taking off in America, with interest turning to sewers and school hygiene. Later within in my chosen time period, the introduction of publicly provided childhood vaccinations began.

Quarantine measures, a very old disease prevention technology, were being updated to reflect new understandings of the mechanics of infection. Good examples of this were in relation to cholera (which had recently been discovered to be transmitted from feces-contaminated water) (see e.g. The Sanitarium, 1894, pp 3-4). It should be remembered that each change in regulations could have significant commercial impact: a cholera-affected vessel that under new regulations did not have to destroy its cargo of hides or cotton or wool or food, for instance, would face significantly different profit margins to one operating under older rules. The potential benefits to both lives and commercial enterprise strongly favored the constant change of processes to reflect advances in scientific and medical knowledge.

Nonetheless, the scientific understanding of transmission was incomplete for many diseases. For instance, until the work done by Walter Reed to confirm the transmission of yellow fever by mosquitoes in 1900, the disease was assumed to be transferred either from direct contact with infected people, or to be airborne. This pamphlet in 1879 favors the latter theory, recommending quarantine measures for ships based on the new science of thermodynamics that would have been largely ineffective.Yellow Fever, A Nautical Disease, Its Origin and Prevention (1879). In the face of this ongoing uncertainty, undoubtedly there were regulations adopted based on commercial convenience as much as scientific advancement.

Many of the professional sources indicate a welcoming attitude to State regulation. An example is Henry I. Bowdich, Public Hygiene in America: Being the Centennial Discourse Delivered Before the International Medical Congress, Philadelphia, September 1876 p 2. His address opined:

Only the State with its great resources, with a large corps of able and earnest agents occupied in the observation of the rise and progress of disease, and in the analysis of such observations for many generations, can hope to unravel even a few of the many mysterious causes of the diseases of any nation, especially of one covering so large a proportion of the earth’s surface as the United States.

Mr Bowdich went on to become one of the original members of the National Board of Health in 1879.

This attitude extended into the 1880s. Here is an address from the Army Surgeon John S Billings, President of the Sanitarian

Until quite recently, very little has been done in this country towards increasing our knowledge of the causes of diseases by observation and experimentation towards that end … We have not had the statistical data, such as the registration system of Great Britain provides, nor the laboratories for experimentation in comparative physiology and pathology such as are to be found in Germany, nor the trained statisticians and scientific observers who could make proper use of these things if we had them. All these, however, will come; some of them are now here. For the most part they can only be provided by governments, their cost and the length of time required to produce really valuable results, placing them beyond the reach of individual effort.

The move to create the National Board of Health should be understood in this context of favorable opinion towards State regulation and overall coordination favoring a national approach to epidemic prevention and management.

The rise and fall of the National Board of Health

Timeline with linked sources

1878	Mississippi Valley yellow fever epidemic, approximately 20,000 dead.; Congress passes Act allowing the Surgeon-General of the United States Marine Hospital to frame quarantine regulations.
1879	Further or continued epidemic of yellow fever in Memphis;Original statute establishing the National Board of Health and the first annual report for the National Board of Health, for 1879
1880	Annual report for 1880; and report on Board expenditures 1880-1881
1881	Smallpox epidemic in West and Northwestern States;Annual report and bulletin of the National Board of Health for the year ending 1881; and Expenditures report 1881-2
1882	Smallpox epidemic continues;Annual report for 1882; Congressional report on establishing a quarantine station in Texas Message from the President 1882 ; Report for 1882 Bill; State pushback on different Bill ; and Board comments on immigrant inspections 1882
1883	Repeal of sunset clause 1883; Annual report for 1883 ; and Expenditures report 1883-4
1884	Letter concerning the functions of the National Board of Health; Appropriation 1884; Annual report for 1884; the last meeting of the Board was in November 1884.Cholera epidemic in Europe was widely feared to spread to America
1885	Smallpox epidemic in Canada; Annual report from the National Board of Health for 1885; Administration of President Cleveland begins
1886	Letter dated 1886 concerning expenses of the National Board of Health; Report of the Commerce Committee 1886
1887	Removal of Ship Island Quarantine Station; and Creation of the Interstate Commerce Commission

1892	The Supreme Court rules that the chief clerk of the Board cannot collect backpay
1893	Act repealing the National Board of Health (link to scanned copy below)

1898	Creation of Department of Public Health

The 1878 yellow fever epidemic and its aftermath

Yellow fever was a frequently recurring problem in the Mississippi region, but the epidemic of 1878 was particularly severe. Over 20,000 people died. There was mass panic and many people attempted to relocate to other States, and there were reported instances of communities enforcing 'shotgun quarantines', paralyzing trade and commerce around the country even away from the worst affected areas. The far-reaching consequences of the epidemic managed to galvanize institutional support behind a national response. In 1878, Congress passed an Act that came to be known as the Woodworth law, allowing the Surgeon-General of the Marine Hospital Services under the Secetary of the Treasury to frame quarantine regulations. This had no appropriation attached to it, but was the United States' first national quarantine law (link).

Another national form of the yellow fever response was the creation of the National Board of Health. A nationally co-ordinated solution (although in the form of a national Sanitary Commission rather than a Board per se) was recommended to Congress by the Commission set up to investigate yellow fever:

The public, we may almost now say national health, is too vast and important a concern to be entrusted to inefficient boards of health and spasmodic Congressional legislation (Report to Congress in the wake of the 1878 yellow fever epidemic from the Commission as to the Causes and Prevention of Yellow Fever. Link here.)

On 2 June 1879, the Act creating the National Board of Health came into effect, accompanied by a very large appropriation of $50,000.

State Boards of Health and the National Board's operation

Section 3 of the 1879 Act creating the National Board of Health (the 'founding Act') sets out a two-step process. First, it encourages the co-operation of the National Board with the State Boards of Health and their regulations. Second, it allows the Board to displace these rules with Presidential approval. It seems reasonable to assume that this two-step process, and the Presidential approval requirement, was an attempt to secure State support for the Bill and the possibility of diminution of State authority.

State Boards of health had been in operation for decades in the largest States. New York was the first State with such a Board. It had a State Board of health since 1805, and one fully independent from the Legislature since 1866 (reference link). Massachusetts had a well-organized State Board of Health since 1869 (reference link). In these States, and presumably others where the historical records are more scarce, the functions of the Boards of Health were broader than we would necessary associate with 'health' today, including such functions as the supervision of abattoirs, building codes and prostitution, as well as disease prevention, statistical analysis and providing a forum to produce and disseminate research and learning about medicine and diseases.

The National Board of Health was modeled on these State Boards. Its statutory functions include making regular assessments of the conditions of foreign ports, and receiving weekly reports of the conditions of domestic ports. Note that in practice it appears that the functions of the Board in relation to foreign ports were only partially carried out, if at all (link). The founding Act for the Board requires it to publish weekly summaries of the information it receives for the benefit of the Marine Hospital Service, and State and municipal Boards of Health. The inclusion of municipal boards of health is an important reminder that not all parts of the founding Act fit into a simplistic dualist 'federal vs state' regulatory model. These municipal boards were also an important (and in some places long established) part of the regulatory infrastructure for disease prevention and public health. (reference link)

The Board was composed of one medical officer from the Army; one from the Navy; one from the Marine Hospital Service. There were also seven members appointed by the President and confirmed by the Senate, not more than one from any State.

De-funding, and motives

Clashes over funding were ongoing. In 1881, the annual report reveals that the Board received only 1/3 of the funds it wanted to build new quarantine stations in Virginia, Georgia and Texas (link).

The historical documents are largely silent as to the motives behind the Board's slow death due to underfunding. My conclusion is that it was controversial. The address of the President of the American Public Health Organization in 1887 (reported in Science, Vol X No. 251, link here) notes that: It is unnecessary for me to refer to the various circumstances that conspired to paralyze the effective energy of this Board. Unhappily it is a thing of the past, and the hopes which we had founded on this our bantling are but a thing of the past.

These are words alluding to well-known and perhaps serious controversy, not agreement. The battlelines of the controversy, however, are not apparent from the historical sources I have collected. Speculation is thus necessary, and can take several forms. The Board's own reasoning is a defensible starting point. At times, its 1884 report waxes cynical with realpolitik considerations: 'the absence of epidemic among the people has resulted in the postponement of much-needed legislation'

Potentially, the change to a Democratic President in 1885 was part of the ultimate collapse of appropriations for the Board. There is some evidence that the Board of Health in its early days was supported by business interests:

'The great transportation companies of the South, both river and rail, are unanimous in their approval of the action and method of the Board [in the 1879 yellow fever epidemic], because experience has shown that they give the necessary security against the spread of disease, without stopping, or retarding to any considerable extent, commercial intercourse' (link)

It is possible that the transportation companies continued to support the Board by the new political administration was less concerned with pleasing this constituency when the yellow fever crisis seemed to have abated. Against this reading, it is noteworthy that the funding gap for the Board predates the change of political leadership.

Another possibility is that of military views of health management clashing with civilian ones. One of the more expensive projects of the National Board of Health was the creation of the Ship Island quarantine station. A report for the Bill dismantling this station reveals that the United States Marine Hospital Service opposed this station from the outset (link and compare the report establishing the station). If construed along these lines, it is possibly significant that the 1893 Act, some time after the Board had been in practice abolished, vested its powers in the Marine Hospital Service(link), a strategy not favored by the American Public Health Organization (link). Against this reading is the presence of Army, Navy and Marine Hospital Officers on the Board, although they would not have been a majority.

Finally, State-level interests may have created a backlash against the nationalization of the Board's functions. There is no conclusive positive evidence of this, although the careful crafting of the Board's initial functions, as I have argued above, reveals a careful attention to the State/Federal balance. Additionally, the report recommending the repeal of the Board's sunset clause is clearly drafted with a mind to alleviate concerns about Congressional power under the commerce clause (link, see eg pp 4,5). Note that the 1884 report of the Board makes it clear that the prevailing constitutional interpretation was that Congress did not have the power to authorize a national compliance certificate that, once obtained, would guarantee a vessel entry into any State. Instead, State police powers were considered to trump a federal quarantine certification. In 1882, some petitioners in New York and Massachusetts were anxious enough about protecting State interests in health that they petitioned the Senate to prevent the Board gaining 'vice' powers (link). The official reply was that the Board's powers were very narrow, but it is clear from the Board's annual reports that it undertook investigations into matters such as livestock health and sewers, as well as its more publicized work on cholera, smallpox and yellow fever quarantine measures. The annual reports, however, also reveal instances of close cooperation with numerous State Boards of Health, and an interest in the strengthening of State sanitary legal infrastructure (for example, State legislation). If there was significant State resistance to the National Board's efforts, it does not appear to have originated in the State Boards of Health. Although State forces may have played a part in the unraveling of the Board, countervailing factors perhaps include that many of its core functions were returned to a national level after its demise, a situation which will be examined now.

After the Board

The last report of the Board in 1885 takes a generally optimistic tone in parts in relation to the overall effects of the Board: 'it is believed that the country was never in better condition to resist the progress of epidemics than it is at the present time' declared the National Board of Health's Annual report for 1885.

The report notes that 32 of the States had, in 1885, boards of health or 'other forms of sanitary organization charged with the duty of devising and enforcing such measures as may serve to promote the well-being of the people'. Note that in 1885 there were only 38 States. The 1884 report the previous year stated that there were 27 State boards of health, and noted the rapid increase in State and local preventative health measures sparked and facilitated by the National Board.

In the mid 1880s there was a virulent cholera epidemic in Europe, and American authorities were anxious to resist its introduction as much as possible. Cholera spread to New York (city and quarantine station) in 1892. The Surgeon General reports that this anxiety prompted the passage of the Federal quarantine Act in 1893 link, at p 265. A plain English translation of the Bill is also in the report, linked here. The Surgeon-General does not comment on section 9 of the Act, repealing the National Board of Health.

Court Response

Dunwoody v United States 138 U.S. 578 (1892) held that Mr Dunwoody, the chief clerk and sometime secretary of the National Board of Health, could not recover money from the federal government in the absence of specific grants payable to the Board.

Louisiana v Texas 176 US 1 (1900) held that there was no interstate federal jurisdiction merely because the quarantine actions of one state (Texas) hurt those of another (Louisiana). The facts of the case concerned the Texan embargo on interstate trade during the yellow fever outbreak in 1899. The Supreme Court point-blank refused to get involved.

Conclusions

The creation of the National Board of Health, even if it ultimately failed, was a significant step in creating uniformity of quarantine standards and broader public health measures more generally. Nonetheless, it is in some ways surprising that a national response to disease and quarantine took so long to formulate. Even before the Supreme Court's expansive reading of the commerce clause in the 1930s, it was relatively uncontroversial that the federal government had the power to regulate quarantine measures under this clause. My best guess as to why this is the case is the politically sensitive nature of quarantine regulations that have a potentially significant effect on trade between States (see Louisiana v Texas 176 US 1 (1900), analyzed above). Also, it is by no means uncontested that a national response to health and safety regulation beyond the specific issue of immigrant quarantine and epidemic management is most efficiently done at a federal rather than State level. The nature of federalism involves weighing State autonomy and ability to tailor regulation to local circumstances on the one hand, and the potential for national coordination, economies of scale and (relative) neutrality of regulation on the other. The rise and fall of the National Board of Health should be seen in the light of these competing forces, as an aspect of broader federal tensions inherent in the nature of the American political system.

Acts

1) "An act to prevent the introduction of infectious or contagious diseases into the United States, and to establish a national board of health" 45th Congress, Session III, 1879 20 Stat 484. Although I scanned this in, google books has a publication called the Sanitarian from 1894 that is clearer, and contains the bill text at page 230.

2) "An act granting additional quarantine powers and imposing additional duties upon the Marine Hospital Service" 27 Stat 449 Ch 114, 52nd Congress, approved February 15 1893. Section 9 of this Act repeals the 1879 act above.

Odds and (dead) ends

Assistant Surgeon General John Macauley Eager. (Again, after looking at the hardcopy, it's on Google books so I've attached that link.) The book as a whole is very interesting, but sadly not quite what I was looking for (I was hoping for some kind of primary source hook). In fact, the author states on page 26 'Without touching on the history of quarantine in America, which is another and interesting story, it is profitable to take another view of the further history of quarantine in Europe.'

The Australian constitution was drafted in the era under examination in this project (coming into effect in 1901).While the Australian drafters copied whole slabs of the US Constitution (sometimes without thinking it through very carefully) one of the specific heads of power they gave to the Australian federal government that is not present in the US Constitution was the power to regulate quarantine (s 51(ix)). link to pdf. I had speculated that there might have been some connection. However, Quick and Garran, which is a commentary on the Australian Constitution written in 1901 containing background of the convention debates section by section, does not give more emphasis to the U.S. examples than those in Candada or Great Britain. links. (A link with the specific page references appears in the table below)

Help Request: does anyone know a good way to find early acts of Congress? I have them in hardcopy, and am trying to find them in a public source electronic form. Answer for the use of others: Sometimes the juggernaut of google books delivers here, too. Many old annual reports of various agencies, boards and societies include the text of recent bills.

-- EmilyByrne - 4 Jan 2010

Hi Emily! I tried to add a comment in the 'comment' box but it didn't show up anywhere on the page afterwards, so I've resorted to just editing your page directly - I hope that's okay. Anyway, I'm not sure whether this is the type of thing you're looking for with regard to early acts of Congress, but it might be useful as a primary source database in any case:

http://memory.loc.gov/ammem/amlaw/

Good luck!

Angela Chen

Hey Emily, here's a link to an article (sorry not a primary source) on race, immigration, disease and law at turn-of-century. at least points to some potentially useful federal case law and hopefully other useful directions -- Andrew http://www.jstor.org/stable/828412?seq=1

-- AndrewKerr - 05 Dec 2009

Thanks Angela! That's very close to what I was looking for, only just for a slightly later date range to cover the 1890s. But I think your link will be very helpful regardless. And thanks Andrew! I hadn't even begun to think about the role race and immigration concerns would play into this, except at a really general level. And the article is really interesting. Emily

-- EmilyByrne - 14 Dec 2009

Links to uploaded sources (others hyperlinked in text above)

• Quick_and_Garran.pdf: Quick, John & Garran, Robert (1901) The Annotated Constitution of the Australian Commonwealth Sydney: Angus & Robertson.

• The_early_history_of_quarantine.pdf: The_early_history_of_quarantine.pdf Eager, John M (1903) The Early History of Quarantine Washington: Government Printer.

• National_Board_of_Health_letter_expenses_1886.pdf: Letter dated 1886 concerning expenses of the National Board of Health

• Letter_1884.pdf: Letter concerning the functions of the National Board of Health 1884

• Annual_Report_1879_-Appendicies_not_included.pdf: The first annual report for the National Board of Health

• Report_on_expenditures_1880_-_1881.pdf: Report on expenditures 1880-1881

• Report_on_expenditures_1880_-_1881.pdf: Annual report for 1880

• Report_on_establising_a_Texas_Quarantine_Station_1882.pdf: Congressional report on establishing a quarantine station in Texas

• Annual_Report_1882_appendices_not_included.pdf: Annual report for 1882

• Expenditures_1881-2.pdf: Expenditures report 1881-2

• Message_from_the_President_1882.pdf: Message from the President 1882

• Report_for_1882_Bill.pdf: Report for 1882 Bill

• Pushback_on_Bill.pdf: Pushback on Bill

• Immigrant_Inspections_1882.pdf: Immigrant Inspections 1882

• Repeal_of_sunset_clause_extension_of_Board_1882.pdf: Repeal of sunset clause 1883

• Annual_Report_1883_appendices_not_included.pdf: Annual report for 1883

• Expenditures_1883-4.pdf: Expenditures report 1883-4

• Appropriation_1884.pdf: Appropriation 1884

• Annual_Report_1884.pdf: Annual report for 1884

• Report_of_the_Commerce_Committee_1886.pdf: Report of the Commerce Committee 1886

• Letter_fiscal_deficit_1887.pdf: Letter fiscal deficit 1887

• Removal_of_Ship_Is_Quarantine_Station_1887.pdf: Removal of Ship Island Quarantine Station 1887

• Creation_of_Department_of_Public_Health_1898.pdf: Creation of Department of Public Health

• Fifty_second_congress_Chap_114_1893_An_Act_granting_additional_quarantine_powers.pdf: Principal 1893 Act

• Forty_fifth_congress_Ch_202_1879_Establishing_National_Board_of_Health.pdf: The principal 1879 Act

• Additional_Powers_1882.pdf: Additional powers refused 1882