Haverty v. Bass: protecting the public health in 1876

Please note that this post is from 2016. Evaluate with care and in light of later events.

States and designated localities (notably not the federal government) exercised nearly unlimited power when they acted to protect the public: faced with an outbreak of smallpox, for example, houses could be searched without warrants and children seized from the arms of their mothers and then forcibly quarantined — all to protect the public health.

A case for trespass, Haverty v. Bass, 66 Me. 71, decided by Maine’s Supreme Judicial Court in 1876, illustrates the strength of the police power to overcome private rights in the name of the public good. On April 15, 1873, under the authority of the mayor and a local health statute, a Bangor police officer and a physician “broke and entered the husband’s house (which was fastened against the officers)” and forcibly pulled Martin Haverty’s child “out of the arms of the mother” in order “to remove it to the city hospital” for quarantine due to suspected smallpox infection. No warrant to invade the Haverty’s home was sought first, despite a provision for seeking such warrants in the statute and despite Maine’s 1820 constitution and its guarantee in Article I, Section 5 that “people shall be secure in their persons, papers, and possessions from unreasonable searches and seizures” (echoing the Fourth Amendment to the United States Constitution).

Maine’s highest court was unsympathetic, even though the process of forcible quarantine contained “no provision for any examination by the justices, nor for notice to any parties to be heard, nor could any appeal be had.” Given the risk to the community, individuals citizens could not be trusted to make good decisions:

Experience probably shows that communities and individuals are not promptly enough aroused to the dangers that beset them in such emergencies.

Community safety overrode private rights:

The maxim salus populi suprema lex is the law of all courts and countries. The individual right sinks in the necessity to provide for the public good.

Still, there were limits, at least in theory: individuals could seek a remedy in tort if public officials acted with “malice,” for example, and there was always the ancient remedy of habeus corpus to be sought if an individual was unjustly detained.

But for the mother of the unnamed child, and for the injury to her domestic tranquility, otherwise so prized in American jurisprudence, there was no remedy. Presumably the public good made even warrantless entry into a secured home and the seizure of a child a reasonable act.