Progress update: Still under construction. But the work feels like it is reaching an analytical plateau, I think I'll be able to call this finished (pending comments) within the next week or so - 01/27/10.

If you have time on your hands, help me out with some research tips for students doing this kind of work in the future?: http://emoglen.law.columbia.edu/twiki/bin/view/AmLegalHist/ResearchHelp

Outline

This project examines United States quarantine laws from the 1870s until the first decade of the 20th Century, to see how the States and federal government worked together in the area of public health. This time frame spans several epidemics of yellow fever, cholera and smallpox, the first national laws addressing quarantine, and the creation of a federal body called 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 came close to being revived by repeal of this sunset clause in early 1883, due to its excellent performance. But it was not ultimately revived.

After three more years of existence in the shadow of the 1879 Act, with a series of exponentially diminishing grants, the National Board of Health failed. I was drawn to this project primarily out of curiosity as to why it failed, and what if anything could be inferred from its failure about systemic State and federal tensions. My time frame ends with the creation of the first successful federal quarantine laws and the federal Department of Health.

Background: disease and quarantine in the late 19th century

The 19th Century 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 time frame in this project, although not universally (here is a review of its impact in Massachusetts in the early 1870s).

The literature during the 1870s reflects great hope for rapid scientific advancement in many areas including disease origins and cures. 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 quarantine regulations could have significant commercial impact. For instance, a cholera-affected vessel that under new regulations did not have to destroy its cargo of hides, cotton, wool or food could 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 only partially effective:Yellow Fever, A Nautical Disease, Its Origin and Prevention (1879). In the face of debate and ongoing technical uncertainty, undoubtedly there were regulations adopted based on commercial convenience or local rent-seeking 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 (link):

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(at p 313).
1879	Further or continued epidemic of yellow fever in Memphis; original statute establishing the National Board of Health; letter from the Board requesting Navy refrigeration vessels for combating yellow feverand first annual report of the Board, 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 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 petitioners' response; and Board comments on immigrant inspections.
1883	Committee report discussing repeal of sunset clause 1883; annual report for 1883; and expenditures report 1883-4.
1884	Cholera epidemic in Europe widely feared to spread to America; letter concerning Board functions ; appropriation 1884; annual report for 1884; last meeting of the Board in November 1884.
1885	Smallpox epidemic in Canada; annual report 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; creation of the Interstate Commerce Commission. Quarantine regulations maintained until 1892 using discretionary presidential fund from 1878 Act.
...
1892	The Supreme Court rules that the chief clerk of the National Board of Health cannot collect pay for service after 1883.
1893	Act repealing the National Board of Health (link to scanned copy below). Marine Hospital Service administers some functions previously undertaken by the Board.
...
1898	Creation of federal Department of Public Health

Early moves to create a National Board of Health

There had been discussion among the public and professional societies of creating a National Board of Health since at least the early 1870s. This newspaper article canvassing the possibility of a National Board, for instance, is dated 18 October 1873 Public Ledger, Philadelphia National Board Vol LXXVI, issue 22, p 1.

Nothing concrete came from this discussion until late 1878, when there was a convention of the public health association in Virginia. It seems that this convention shaped the discussion sufficiently to draw a proposal for a National Board to Congressional attention. It took the yellow fever epidemic in 1878, however, to provide the impetus to secure legislation and national funding for the Board.

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. 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 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. 'Public health has a vast deal to do with public morals, and immorality is the most fatal blow struck at the public health' noted a report on the convention establishing the National Board of Health in Virginia, just as the yellow fever epidemic of 1878 struck Galveston News, Galveston Texas, 11-25-1878, p 2 'The National Board of Health'.

The National Board of Health was modeled on the existing 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.

It is clear that the early efforts of the Board had a significant effect on the yellow fever ********** [http://moglen.law.columbia.edu/twiki/pub/AmLegalHist/EmilyProject/Repeal_of_sunset_clause_extension_of_Board_1882.pdf][Committee report discussing repeal of sunset clause 1883]; annual report for 1884

De-funding, and motives

The Supreme Court in 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. This case was brought several years after the Board had ceased to exist. It contains a very clear timeline of Congressional appropriations, a clear ruling that Mr Dunwoody was not entitled to the funds he claimed, and no description at all of anything outside the legal skeleton of the Board's history.

Clashes over funding were ongoing. In 1881, the annual report reveals that the Board received only one third 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. Dissent to the Board existed since its inception. In early 1879 when the Board's founding Act was before Congress, a newspaper in Cincinnatti, Ohio, crowed 'National Board of Health Project likely to fail', stating 'the General Government is becoming so burdened with bureaus of all sorts, and officers multiplied with fat pay and little to do, that strong opposition is developed among the members...':The Cincinnati Commercial, 02-08-1879 Vol XXXIX Issue 149 p 3.

Perhaps better evidence of entrenched interests is demonstrated by the careful crafting of the Board's initial functions, which, as I have argued above, reveals a keen 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 and mutually beneficial cooperation with numerous State Boards of Health, and demonstrate a genuine-seeming interest in strengthening State sanitary legal infrastructure (for example, State legislation). I think the better view is that State resistance to the National Board's efforts probably did not originate specifically in the State Boards of Health, but was a reflection of more general attitudes and trends. There is also some evidence of some State-level authorities preferring their autochthonuos regulatory infrastructure and quarantine procedures: see eg The Daily Picayune, New Orleans Louisiana, p 4 1-17-1884 'The Defunct National Board of Health'.

Overall, I think the federalist analysis is the best lens through which to analyze the decline of the Board. In 1893 the centralizing forces, which had peaked in response to the chaos of the 1879 yellow fever epidemic, were outweighed by the interests of local and regional autonomy. In the slightly longer term, however, countervailing forces meant that many of the National Board's core functions were returned to a national level after its demise.

After the Board

The Woodworth law of 1878 remained in operation after the National Board, allowing the promulgation of national quarantine standards from the Marine Hosptial Service. This was the federal compromise: allowing some national coordination but in a very narrowly confined area, unlike the broader interests of the 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 granting more powers to the Marine Hospital Service 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, formally repealing the now defunct National Board of Health.

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.

Court Response

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. In some ways it is surprising that a national response to foreign-originated epidemics 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 could have a potentially significant effect on trade between States (see Louisiana v Texas 176 US 1 (1900), analyzed above). Also, the broad swathe of topics that were regarded as relating to 'health' was probably threatening to many States' sense of sovereignty without a tightly focused mandate, which the Board had in its theoretical statutory functions but not in its operational practice. Even today, with the federal government exercising power that was not contemplated in the nineteenth century, 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.

An even more important historical lesson from studying the Board, however, is its function signaling a national commitment to both preventative medicine and medical research. In a short span of years, both would take root in America on a scale to match even the optimistic predictions of the people involved in the Board's administration. Moreover the National Board of Health, even during the twilight of its chronically underfunded life, was instrumental in sparking and encouraging a layered regulatory commitment to public health measures. Its efforts and the ripple effects of these efforts undoubtedly saved many thousands of lives, and improved sanitary conditions for most Americans far beyond the levels they had been at when the Board came into existence. The many advocates of the National Board of Health and its work may have lost a battle for its renewal in 1893, but they went on to secure many far more significant victories in the war for the health of Americans.

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

• letter_from_the_Board_requesting_Navy_refrigeration_vessels_for_combating_yellow_fever.pdf: letter from the Board requesting navy refrigeration vessels for combating yellow fever

• opinion_politics.pdf: Public Ledger, Philadelphia 10-18-1873 Op ed piece on National Board Vol LXXVI, issue 22, p 1.

• National_Board_in_Virginia_Article.pdf: Galveston News, Galveston Texas, 11-25-1878 Article on the National Board of Health

• Ohio_fail.pdf: The Cincinnati Commercial, 02-08-1879 Vol XXXIX Issue 149 p 3

• The_defunct_national_board_of_health.pdf: The Daily Picayune, New Orleans Louisiana, p 4 1-17-1884 'The Defunct National Board of Health'