Archive for June, 2011
Image is courtesy of Harper’s Weekly, 26 June 1858.
This post is not directly health-related; while reviewing quarantine laws enacted in the Province of Canada between 1841 and 1867, I came across this fascinating 1862 statute about “emigrant running” and thought I’d write about it today. Following some quick internet research, it turns out that emigrant runners were 19th century touts who preyed on and exploited emigrants at arrival ports in British North America and the United States of America. According to Harper’s Weekly, the runners were “scoundrels of the very lowest calibre [who] seized [the emigrant] and made him their own. If he had any money, they robbed him of it. If he had a pretty wife or daughter, they stole them too, if they could.” Here’s more insight from the New York Times:
“Three ships loaded with emigrants arrived up from Quarantine, and it was a busy time all round…several…gentlemen dressed themselves in emigrants’ clothes and tried to gain admittance under the pretense of having been landed in company with those just arrived. But the dodge did not work. Others pleaded earnestly to get in to see a father or a brother, a sister or other relative, who was among the passengers. But they were too well known to palm themselves off on that pretense…These runners have sucked the life-blood of emigrants for so long that they think they have a right to it.”
But it seems the “runners” were travel agents as well. This 1854 case reported in the New York Times is about two runners, one named Jacob Rhinehardt, agent of the “People’s Line” transportation company, and another named Michael Williams. Rhinehardt was arrested and charged with fraud for telling arriving emigrants that the tickets they purchased in London for inland travel within the US were worthless, apparently as a ruse to sell People’s Line tickets to them. Rhinehardt was also charged with assault and battery on a German emigrant (the “tout” element emerges here). Michael Williams was charged with assaulting an emigrant named Jacob Albright. Interestingly, the magistrate in Rhinehardt’s case found that his actions, though morally questionable, did not amount to fraud because New York law would not apply to a contract involving a purchase of inland travel tickets from a foreigner unless the parties to the contract (the foreign ticket seller and the emigrant purchaser) met in New York to reaffirm the transaction. So in effect, Rhinehardt was right. Sort of.
Regarding the thuggish actions of Williams and Rhinehardt, the New York Times notes that the affidavits and evidence in both cases “show very plainly the outrages and extortions to which friendless emigrants are subject, not only here but in the European ports from which they embark.”
The legitimate and illegitimate nature of the emigrant running business might explain why the Province of Canada legislature chose to regulate rather than ban the practice. The 1862 law makes it illegal to engage in emigrant running without a license. The Act describes emigrant running as the practice of soliciting emigrants or making recommendations to them—on behalf of transportation companies, lodging houses or tavern-keepers—“for any purpose connected with the preparations or arrangements of such emigrants” for passage to a final destination in the Province or the USA. This may in fact be the first attempt to regulate travel agency in Canada.
Happy Canada Day everyone!
“The fears of mankind, though they may be reasonable, will not create a nuisance” – Defence counsel, R v Vantandillo, (1815), 4 M & S 72, 105 ER 76 (KB).
In R v Vantandillo, a mother was convicted and sentenced to three months imprisonment for “unlawfully and injuriously” carrying his infant son, who was infected with smallpox, along a public highway. The case is one of many that fall under the “grab bag” common law offence of common or public nuisance. The case also provides some insights on the strict liability quality of public nuisance qua crime. Here’s how:
- A “judgment by default” was entered against the defendant. I am not familiar with the history of this procedure, but I doubt that it means the same thing as a default judgment in the context of civil proceedings. If I were to guess, I would say that a conviction was simply entered against the defendant upon notice of the indictment. Some statements in the case report support this theory. For example, it is reported that “the defendant having suffered judgment by default, appeared to receive the sentence of the Court,” which suggests that an actual trial was dispensed with. Also, at the sentencing hearing, Lord Chief Justice Ellenborough, responding to the defence counsel’s contention that it was entirely possible that the only reason her client presented her child on the street was to obtain medical advice, noted (in a somewhat circular fashion) that even though the “necessity” defence could be proved by evidence, such defence was precluded by the mere fact that the “indictment alleged that [the offence was committed]…unlawfully and injuriously.”
- The defence counsel argued that the mother’s actions were neither unlawful nor injurious to anyone. According to him, since the indictment did not state how the child caught the disease or that he was purposefully inoculated with smallpox by or at his mother’s request, it was perfectly reasonable to assume that the reason why she exposed the child in the streets was to obtain medical treatment (inoculating or procuring the inoculation of a person was also a common law offence, even if commonly relied on at that time as a preventative from smallpox). This act by itself (i.e. the actions of caring mother), he argued, could not be unlawful. On the question of injury, he argued that since the indictment did not show that the child carried some outward manifestation of smallpox (such as sores) as the time of exposure, it cannot be concluded with certainty that there was any injury presented by the situation. He noted that without such outward evidence (as in the case of leprosy, and by analogy to the writ of de leproso amovendo), it would be difficult to distinguish between infected persons who pose an injury to the public and those who do not.
The court rejected both arguments. It surely must not have helped the defendant’s case that the prosecution alleged that “the passage in which the defendant had exposed the child was a cul de sac, extremely narrow; that there was a small school kept there, and that two of the children had caught the disorder and died.”
Here are some ideas (hypotheses?) emerging from my current research on infectious disease legislation and the advent of state medicine in 19th century Canada:
- Prior to confederation, legislation on the subject of “health” can be grouped under three general headings: quarantine and emigration laws, laws relating to vaccination, inoculation and sanitation, and laws relating to hospitals and health professions. The theme common to these three areas is the prevention and management of infectious and contagious diseases (indeed, it appears as if the fear and threat of diseases provided the impetus for state involvement in the regulation of medicine and health care, but that is a story for another post). These areas, with the exception of quarantine and emigration, emerged from and remained under the legislative and administrative mandates of local authorities until confederation (see my next point for why quarantine and emigration is excepted). More interestingly, at the time of confederation, these two areas had not coalesced into a precise, or (at a minimum) recognizable legislative notion of “health” or “health care”. One could therefore hypothesize that this situation may account for why health—unlike “quarantine and the establishment and maintenance of marine hospitals”—is not specifically enumerated as a head of power under the British North America Act (BNA Act), 1867.
- In 1852, the Province of Canada legislature consolidated all statutes relating to quarantine and emigration under one enactment, thus repealing a number of quarantine statutes that had their origin in pre-union Canada. This may have contributed to a “vision” of quarantine as belonging to a class of subjects of national interest, despite the fact that early quarantine laws dealt mainly with local measures to prevent the importation of infectious and contagious diseases (especially in Lower Canada and Nova Scotia [see e.g. here, here and here]—Upper Canada entered the 1841 union without any major quarantine legislation, for reasons I speculated on in an earlier post). The 1852 consolidation specifically repealed the principal Lower Canada legislation dealing with quarantine in the context of importation of diseases, and replaced it with a section which empowered the Governor in Council to issue regulations relating to quarantine measures directed at the “preservation of the Public Health” and preventing the “introduction and dissemination of disease.”
So what are the implications of all this? First, I think there is a strong historical link between infectious disease regulation and the development of “state medicine” or more specifically, state/legal intervention in health/care. Second, the absence of a precise concept of “health” in the legislative context, and the fact that much of what made up that concept was handled by local authorities prior to confederation may account for why the subject of health is missing from the distribution of powers scheme in the BNA Act, 1867. What we find instead is that under the BNA Act, the legislative power over the establishment of health care institutions—one of three major areas of “health” legislation prior to confederation—falls to the provinces. This head of power, along with powers over property and civil rights and matters of a merely local or private nature in the province form the locus of authority that informs the present notion that the provinces occupy more of the field of health governance. Conversely, the responsibility for quarantine legislation may have shifted with the 1852 consolidation.
Interesting side note: Under the 1852 consolidation, any “Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person” arriving in Canada must be accompanied by family members. If unaccompanied, and if in the opinion of the Medical Superintendent, “likely to become permanently a public charge,” the Master of the vessel in which such a person arrived in the Province must execute a bond with “two sufficient sureties” in the amount of seventy-five pounds to indemnify the Province for any expenses incurred for his/her maintenance and support within three years of arrival. This suggests that during this period, the maintenance of infirm and mentally ill residents of Canada was paid for by relatives or, in the case of persons without relatives, out of the public purse. What would have been the quid pro quo for the latter arrangement? Perhaps something similar to the Poor Law infirmary system?
While searching for health-related legislation in Upper Canada, I came across this 1826 statute (7 Geo IV, c 5) that is likely to be the first patent/intellectual property legislation enacted for British North America (it appears a similar statute was enacted for Lower Canada two years later, in the ninth year of the reign of George IV). Interestingly, the definition of ‘invention’ hasn’t changed much since that time: to qualify for a patent, an invention must be a “new and useful art, machine, manufacture, or composition of matter, not known or used before the application [for a patent]” (cf. Patent Act definition; the 1826 definition was probably derived from common law doctrine). Here are other interesting features of the statute:
- The maximum term of exclusivity granted was 14 years.
- A patent can be obtained on an improvement (which is not defined, although it is stated that “simply changing the form or the proportion of any machine or composition in any degree, shall not be deemed a discovery). However, patents on improvements do not extend to the original invention and vice versa.
- An applicant for a patent was required to swear an oath or—if a Quaker, Menonist, Tunker, or a member of the United Brethren or Moravians—affirm before a justice of the peace that he/she is the true inventor of the discovery for which a patent is sought (Is this a case of religious accommodation or based on the notion that a [biblical] oath by anabaptists is worthless? Is it curious that Catholics are not included in this list?).
- Competing patent applications were to be settled by arbitration.
- The application procedure seems fairly onerous: an applicant was required to submit a written statement describing the invention or improvement in detail, accompanied (if necessary) with drawings, models and written references, and signed by two witnesses.
Number of health-related legislation enacted between 1791 and 1841 in Lower and Upper Canada (i.e. during the period of formal existence of both provinces):
Lower Canada: 7*
Upper Canada: 4*
(*excluding minor revisions, reenactments and hospitals and health professions legislation)
Between 1791 and 1841, the Province of Lower Canada enacted several health-related statutes dealing with three main subjects—quarantine, adoption of vaccination and appropriation of funds for hospitals receiving and treating returning emigrants suffering from contagious diseases. Interestingly, all statutes were directed at the prevention and control of epidemic, contagious or endemic diseases. The earliest, enacted in 1795, enjoined the quarantine of all vessels and persons arriving in the Province through the Saint Lawrence River from “places infected with the plague (a term which historically speaking, applied to pandemic infections in general, including smallpox) or any pestilential fever or disease.” In the first quarter of the 19th century, three separate pieces of legislation (enacted in 1815, 1817 and 1821) authorized funds for the adoption and provision of free optional vaccination in the province. The 1817 statute also established a Board of Vaccination to implement the statute. This marked the first creation by statute of a health board or department in Canada.
The Lower Canada vaccination program was discontinued around 1823 (appropriations authorized by the 1821 statute ended in the same year, and there is no record of subsequent appropriations for the purpose of vaccination). As Barbara Tunis has shown, reasons for the discontinuance of the program include disputes (surrounding the membership of the Board of Vaccination, between Board members and vaccinators over vaccination directives issued by the Board, and among diverse members of the medical profession over the nature of vaccination), slow public acceptance of vaccination (due to lack of knowledge about and suspicion of vaccines, and familiarity with inoculation) and an often aggressive and enthusiastic implementation that set the stage for conflicts between bureaucrats and those opposed to vaccination. Following the lapsing of the vaccination program, a trio of statutes provided for the establishment and appropriation of funds to hospitals receiving and treating emigrants suffering from contagious diseases. Preventing the importation of emigrant diseases remained the sole focus of health legislation prior to the union with Upper Canada.
Upper Canada’s health-related legislation (excluding hospitals and health professions legislation) include a 1830 statute that provided for the maintenance and support of insane destitute persons and two in 1832 and 1833 that provided monetary support for the relief of sick and destitute emigrants in the town of Prescott. The most significant piece of legislation during this period appears to be the 1833 Boards of Public Health and Infectious Diseases Act which empowered public health officials to perform various actions for the preservation of the public’s health, including the power to enter, examine, order cleansing of or cleanse premises deemed hazardous to public health and to compel the removal of persons from premises infected with “a disease of malignant and fatal character” until disinfection and cleansing measures are completed. The Act also authorized the Governor to regulate the entry and departure of vessels into the province in a manner that best preserves the public health.
I can speculate on a number of reasons why the Upper Canada legislative record is less robust. First, coastal locations in parts of Lower Canada provided access to and from the Canadas and consequently, allowed for the inevitable introduction to the province of foreign infectious diseases. The provincial administration therefore (presumably) had more reasons to be concerned about contagion than their inland-residing Upper Canada counterparts. Concomitantly, there would have also been fewer infectious disease threats or epidemics in Upper Canada, thus attenuating the impetus to enact preventive laws (that disease outbreaks provoked a legal response is evident from the fact that cholera outbreaks in 1832 and 1834 resulted in legislation appropriating funds to cover expenses incurred in fighting the disease; for more on the Upper Canada legal response to the cholera epidemics, see this doctoral dissertation). Second, the Upper Canada legislature may have considered it politically inexpedient to enact the same public health measures that provoked controversy in Lower Canada and Britain, such as bans on inoculation and the adoption of vaccination. Lastly, as Robert Bothwell points out, the primary focus of government in the Canadas after 1815 was “to populate and develop the provinces.” It is therefore likely that in the absence of serious or persisting public health threats, the government of Upper Canada simply did not deem the matter a pressing concern.