Monday, October 27, 2014

From Black Death to Ebola; from Ragusa to New York: Commerce, Civil Liberty and the return of the Trentina

"among those who escaped from Caffa by boat were a few sailors who had been infected with the poisonous disease. Some boats were bound for Genoa, others for Venice, and to other Christian areas. When sailors reached these places they mixed with people there, it was if they had brought evil spirits with them: every city, every settlement, and their inhabitants, both men and women, died suddenly...We Genovese and Venetians bear responsibility for revealing the judgements of God."

Gabrille De"Mussi, A Genovese Lawyer writing in late 1348

In the same year, 1348, that De’Mussi wrote his commentary a Report of the Medical Faculty of Paris, commissioned by King Philip VI of France, examined the probable causation of the outbreak of Bubonic Plague in Europe and came to a very different conclusion. The august members of the Faculty blamed the ‘Black Death’ on the celestial conjunction of Saturn, Jupiter and Mars that had occurred on the 20 march 1345!!! 

Venetian Plague-Doctor's mask with Jani Beg and the 
depiction of Mongol mangonels in action.

The real explanation for the lethal pandemic which ravaged Europe and decimated half the population of the Mediterranean basin (estimates of 75-200 million) of course was the presence of plague-carrying rats that had devastated the Mongol armies under Jani Beg, Khan of the Golden Horde, which had besieged the Genovese port of Caffa (Feodosia) in the Crimea in 1345. Jani Beg, in frustration at having to break off the siege, ordered the catapulting with mangonels of the rotting corpses of his dead soldiers into the city. Escaping Genovese ships, loaded with grain, people and rats brought the Yersinia pestis bacillus (Plague) first to Constantinople, then Sicily and then to all ports beyond from Mid-October 1347 – mid-March 1348, thereby rapidly accelerating the spread of the disease beyond the lands of the Golden Horde.

Dubrovnik (Ragusa) – Approaching from the South

Early Quarantine Stations for Republic of Ragusa 1377

In 1377 the Republic of Ragusa (Dubrovnik), a rich maritime state which depended almost entirely on the flow of commerce through its city, to try and prevent outbreaks of plague in the city, introduced as a public health initiative the Trentina Ordanance which mandated that all ships and their crew, goods and passengers from plaque infected areas must lay-up at the islands of Mrkan and Bobaro (off Cavtat) for thirty days. A similar facility for land-based arrivals existed outside the city walls and for these a period of forty days, the Quarantina was imposed. Ragusa established its first purpose-built quarantine facility or lazzaretto for maritime traffic on the island of Mljet in 1397 and this subsequently moved to a land-based facility on the Danče peninsula to the west of the city in 1430.

"Be it therefore determined that our Provveditori al Sal shall by the authority of this Council cause a hospital (locum) to be built on the Vigna Murata (Sant’Erasmo), as they see fit, and those who have left Nazareth (Lazzaretto Vecchio) after being cured must go to this hospital and remain there for forty days before they return to Venice."

Venetian Senate Decree 18 July 1468

Ragusa’s overlords since 1205, the Most Serene Republic of Venice (when the returning Venetian fleet of the IVth Crusade and the new Patriarch of Constantinople Tommaso Morosini took control) established its own quarantine facility on the small island of Santa Maria di Nazareth (renamed the Lazzaretto Vecchio) off the Lido with a Senate decree in 1423 and a further convalescent facility, the Lazzaretto Nuovo in 1468 on the island of Sant’Erasmo. The finance for the building of these came from the commercial Proviveditori al Sal (Salt Office) and were then subsequently overseen by the Health Office who could issue their own ordanances.

Venetian Quarantine and Isolation Facilities

In practice the lazzaretto vecchio was run as an isolation (from isola or island) unit, where infected people were brought, and people who had died from the plague both on and off the island were buried. An individual could only be transferred to the Lazzaretto nuovo, a true quarantine facility i.e. where non-infective or cured people were detained once his cure was confirmed. The management of plague outbreaks was aggressive and highly proscribed. A cure was determined if the individual had survived the disease and had had his buboes or abscesses lanced and healed. Once this was determined he would be transferred to the lazaretto nuovo but could take no goods with him, and had to spend fifteen days in the pra part of the facility, then fifteen days in the sanita part before being let go home where he had to spend another ten days in quarantine under a ban on outside movement. At the height of the plague outbreak in 1575 some 6000-8000 people languished and died in the lazzaretto vecchio.

Pieter Bruegel-the-Elder's depiction of the Black Death attendants 
and their modern Ebola equivalents. 
The white shrouds have not changed much!!!

The difference between quarantine as a preventative measure and isolation as a treatment measure continues to be blurred. In the US, the Centers for Disease Control and Prevention (CDC) define isolation as “separating ill persons who have a communicable disease from those who are healthy” and quarantine as “separating and restricting the movement of well persons who may have been exposed to a communicable disease to see if they become ill.”

On the 24th October 2014 the Governors of New York and New Jersey, Andrew M. Cuomo and Chris Christie in response to the case of a medical doctor returning to the US with established Ebola infection, imposed a mandatory quarantine of 21 days on all medical workers returning from West Africa if they had had contact with Ebola patients. The first person detained under this edict, a nurse Kaci Hickox, who is asymptomatic and has tested negative for Ebola, has been detained in an unheated tent on the grounds of the University Hospital in Newark, New Jersey.

This resurrected Ragusan Trentina edict of the two Governors has created an enormous ‘civil liberties’ outcry but does, because two States have made a conjoint decision, have a basis in Federal Law but only it appears if the US Secretary of the Treasury has given the go-ahead.

Article I, section 8 of the US Constitution (the so-called Commerce Clause) grants Congress the power to “regulate Commerce” with foreign Nations, States and the Indian Nations. Using the remit of the Commerce Clause the US Congress passed its first federal quarantine law (to contain Yellow fever) in 1792. The law did not allow federal authorities to promulgate quarantine procedures of their own but allowed those authorities to assist State officials, upon request, in enforcing their own quarantine measures. The Act was repealed in 1799 to be replaced by slightly more robust measures and transferring authority for its implementation to the Secretary of the Treasury (Act Feb 25,1799, ch 12, 1 Stat 619).

A US Supreme Court judgement in 1886 ( 118 U.S. 455) in Morgan’s Steamship established that quarantine in the maritime context was to be subject to the federal Commerce Clause and in 1890 an Act to Perfect the Quarantine Service was passed which granted the Secretary of the Treasury power to develop regulations beyond just the maritime context. Further and further court decisions re-enforced the federalisation of quarantine and in 1921 New York State was the last state to transfer its quarantine facilities to federal control.

In a 1942 decision in Wickard v. Filburn (317 U.S. 111 [1942]) the US Supreme Court determined that any activity that would have an economic effect on inter-State commerce was subject to the Commerce Clause. Two years later the Public Health Service Act (PHSA) was passed invoking these powers. The segment of the Act devoted to civilian quarantine and isolation is codified at 42 U.S.C. § 264 (d) (1) and states:

Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (a) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such a disease in a qualifying stage, will be moving from a State to another State.

The PHSA thus legislated for the potential of any individual to disrupt directly or in a far more draconian fashion, vicariously inter-State commerce, by having quarantine regulations enforced. In most decisions since 1944 the US Supreme Court has been consistent in holding that the quarantine provisions in the PHSA as enabled by the Commerce Clause are constitutional but they do imply a volition or activity on the part of the individual that could disrupt that commerce.
The notion of activity, inactivity and compulsion as defined by the threat to inter-State commerce have yet to meet the challenge to constitutionality presented by a recent Supreme Court in National Federation of Independent Business v. Sebelius (2011) which held that the Commerce Clause does not regulate for “inactivity”. According to the decision, and to use a rather broad example, Congress and by extension the Federal authorities under the Commerce Clause cannot legislate for ‘breathing’ but only for breathing in certain places.

New York and New Jersey States have decided to go their own way for now and not wait for a federal mandate. New Jersey has decided to allow quarantine at people’s homes for 21 days but this leaves Kaci Hickox, who lives in the State of Maine in limbo. Under Commerce Clause authority New Jersey has decided to quarantine her, as a non-resident and therefore a risk to interstate commerce, in a tent on a New Jersey medical facility. The mere fact that she might make the effort to go home means that her actions are no longer considered ‘inactive’. You can be sure that State lawyers are already preparing for a constitutional challenge with this authority in mind. Unlike Kaci Hickox, in 1664 the famous Turkish traveller Evliya Çelebi was very impressed with the conditions and management of the quarantine facility he visited in Ragusa (Dubrovnik).

Piri Reis' Dubrovnik

From Ragusa, Venice and France in the 1370s, to New York and New Jersey in 2014, from Black Death to Ebola, the management of pandemics are certainly a public health issue and in our ever shrinking world requires a world-wide response which does not certainly include punishing volunteer medical and non-medical staff for responding to that need. The basis for the quarantine of the well, the legality or illegality of detention, is not a medical issue but a commercial one. Quarantine has always been driven by commercial concerns and used law as a tool to protect those concerns.

Now that the Trentina has been re-entrenched in New York and New Jersey 650 years after it was first introduced in Ragusa, and 220 years after the powers to institute quarantine began to be removed from State to Federal control, perhaps those States are now determined to re-establish some quarantine facility on an offshore island. To be renamed the lazzaretto cuomo-christie no doubt! Guantanamo Bay in Cuba would probably suffice as such a site, given that its current quarantined detainees under the War Against Terror powers of the Patriot Act, are already governed by the constitutional provisions of the Commerce Clause!!


The New York and New Jersey State threat to Federal control of quarantine provisions has forced the Obama administration and the CDC to issue guidelines and by extension regain that control. 

Kaci Hickox has gone home to Maine where she has also run into conflict with the Maine Governor's quarantine regulations. New Jersey Governor Chris Christie said that if she wishes to sue him for infringing her civil rights, she should "Get in line." 



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