Appendix C

Confidentiality and the Census, 1790-1929


The census of population envisaged by Article I, Sec. 2 of the Constitution involved only a decennial enumeration of the inhabitants of each state, distinguishing free from slave, and excluding untaxed Indians. Yet from the beginning the census encompassed more than this minimal enumeration, and as the scope of census inquiries expanded, the confidentiality of personal data supplied for statistical purposes became an increasingly urgent issue. Gradually administrative and legal safeguards were instituted to insure confidentiality until, in 1919, it became a felony to misuse data supplied to the census by individuals. A complete study of the evolution of government policy with respect to the confidentiality of census data would necessarily involve a full-scale history of the census itself. This brief overview can at best sketch the development of that policy and indicate the major factors that appear to have shaped it.

The history of census policy on confidentiality may be conveniently divided into four broad periods. During the first six censuses (1790-1840), the confidentiality issue arose with respect to economic data. From 1850 to 1870 administrative directives extended the principal of confidentiality to all census data; with the Census of 1880 it became a misdemeanor to disclose information collected in the census. Thereafter, the creation of a permanent Bureau of the Census (in 1902) set in motion events that led to the Census Act of March 3, 1919, which made the unauthorized disclosure of personal data collected in the census a felony.1

Beyond Bare Enumeration, 1790-1840

James Madison played the major role in expounding the philosophy of the first census and in establishing its procedures. Madison spoke for many of the leaders of his time when he expressed his desire to gather this "most useful information" for Congress. The census, he argued, should be "extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adapt the public measures to the particular circumstances of the community." Echoing The Federalist Papers, he wished to know accurately the "several classes" of the nation so that Congress could "make proper provision for the agricultural, commercial, and manufacturing interests . . . in due proportion."2

Madison embodied his vision of the census as the vehicle for socioeconomic research in a bill that divided the population into four categories: free white males, free white females, free blacks, and slaves. The free whites were to be differentiated by ageyounger than 16, 16 or older-and Madison also wished to classify the population, where appropriate, under thirty occupational and industrial headings.3

The Senate deleted the proposal on occupations, much to Madison's disgust, but the crucial point is that the first act pushed beyond the simple constitutional provision, thereby establishing a precedent for the enormous expansion of the census in the following century.4 Madison's argument for converting the census into a vehicle for statistical inquiry became the standard rationale echoed in future Congresses. In spite of occasional objections to the implied powers interpretation of Article I, Sec. 2, a Federal court was not asked to rule on the constitutionality of the expanded census until 1901. Its decision reaffirmed the necessity and right of government to gather statistics to guide public policy.5

Madison's statistical ideology may have looked toward the needs of an expanding nation, but his administrative conceptions with regard to the census were bound to his own time. The census bill of 1790 was based on the assumption that each enumeration was to be an ad hoc operation, carried out at minimal cost, and utilizing existing functionaries of government as far as possible. The bill divided the labor between the Congress, which determined the content of the census schedules, and the federal marshals, who appointed assistant marshals to do the enumeration. The thoroughness of the enumeration was to be checked by the marshals, the district courts, and the public before aggregate figures were transmitted to the national capital for compilation and publication. This system, with minor modifications, was used in the first six censuses.

Concern for accuracy is evident in the rules for enumerators. Bound by oath and threatened with fines, the assistant marshal had to file copies of his census schedules with the clerk of the district court who would make them available for inspection by the grand jury. Furthermore, the enumerator was bound to

cause a correct copy, signed by himself, of the schedule, containing the number of inhabitants, within his division, to be set up at two of the most public places within the same, there to remain for the inspection of all concerned . . . . 6

Both these requirements involved disclosure, but apparently the confidentiality issue was not raised. Given the few facts contained in the schedule, all of which were common knowledge locally, it is probable that most citizens did not perceive the public posting of census results as an invasion of privacy.

The practices established in the first census may have seemed sensible and frugal, but built into the procedures were a number of problems. Because data collection was decentralized, the Secretary of State had little control over the quality of the aggregate figures submitted by the marshals. The public posting of census schedules sacrificed confidentiality in the hope of attaining accuracy, a dubious proposition in the long run. And, in the absence of a permanent census bureau, expertise in the collation, analysis, and presentation of census data could not accumulate at the federal level.

The Census of 1790, published by Thomas Jefferson in the autumn of 1791, revealed a population of 3,929,214. At about the same time, Jefferson wrote to a friend that, "Making a very small allowance for omissions, which we know to have been very great, we are certainly above four millions, probably about four million one hundred thousand."7 Assuming that his estimate of the undercount was reasonable, one can only speculate about the causes of the difficulty.

Clearly the problems of communication and travel, especially in the frontier areas, must have been a contributing factor. Then, too, the lack of detailed instructions to the marshals must be considered. When asked to initiate the field work phase of the first enumeration, Tobias Lear, Washington's private secretary, apparently sent out copies of the census law, nothing more.8 The suspicion that census data would be used in levying future taxes may also have played a role in the reluctance of some citizens to cooperate.

To the statistics-minded generation of the Founding Fathers,9 the skimpy data of the first census must have been disappointing. Jefferson's dissatisfaction is evident in the memorial regarding plans for the Census of 1800, which he sent to Congress as President of the American Philosophical Society. It called for "a more detailed view of the inhabitants," and suggested the inclusion of refined age groupings

from whence may be calculated the ordinary duration of life in these States, the chances of life for each epoch thereof, and the ratio of the increase of their population; firmly believing that the result will be sensibly different from what is presented in the tables of other countries . . . .10

The memorial suggested the age intervals that might be used, and urged that data be collected on nativity and occupation. The American Philosophical Society and the Connecticut Academy of Arts and Sciences joined forces in the advocacy of census reform, but the legislation for the approaching census showed scant evidence of their influence.

The only significant change in the schedule for 1800 was the refinement of age categories for the free white population, including females (for whom no age data were collected in 1790). The census was placed formally under the authority of the Secretary of State, but otherwise no major procedural alterations were made. Fortunately, the incumbent Secretary of State, Timothy Pickering, was concerned about the quality of the census and drafted a set of detailed instructions to guide the marshals. He clarified the wording of the Census Act by defining terms, and he restated the categories of the census in the form of questions to be asked the head of each household. He also outlined procedures for recording, copying, posting, and aggregating the returns. On the requirement that the schedules be posted, Pickering wrote:

These copies will distinguish . . . the several families, by the names of their master, mistress, steward, overseer, or other principal person therein. The design of the copies thus set up, appears to be that if any of the inhabitants discover errors in the enumerations, they may be made known to the assistant; and the naming of the heads of families will render the detection of errors practicable." 11

Whether the instructions helped produce a better census is not clear, but it seems likely that it did not. The compilation of the census was placed in the hands of a State Department clerk, Jacob Wagner, and when the report appeared in 1801 its scanty data allowed little more than Jefferson's observation that "the increase of numbers during the last ten years, proceeding in a geometrical ratio, promises a duplication in a little more than twenty-two years."12

The third census of population merely repeated the procedures of 1800. John B. Colvin, a clerk in the State Department, issued copies of the Pickering instructions and compiled the aggregate statistics as they came in. However, the desire for economic data, voiced earlier by Madison and Jefferson, found an able advocate in the Secretary of the Treasury, Albert Gallatin. Called upon to report on the state of American manufactures, Gallatin reported to Congress the insufficient nature of such statistics and added, "Permit me to observe that the approaching census might afford the opportunity to obtain detailed and correct information on that subject . . . . "13 Congress immediately authorized the collection of data on manufacturing establishments and their products. Gallatin drafted instructions for the enumerators in terms of broad objectives, noting that

No particular form can be prescribed, and to the request that each assistant should give in his own way the best account which, as he proceeds to take the census, he may be able to collect, I can add but very general instructions." 14

The first attempt to collect economic data ended in frustration, due to the vagueness of the instructions, the carelessness of the enumerators, and the resistance of respondents. Samuel Latham Mitchill, a prominent scientist in Congress, and Tench Coxe, who had helped gather Hamilton's manufacturing data, successively worked over the material. Coxe pointed out the "numerous and very considerable imperfections and omissions" and Mitchill urged that "an exact schedule of all the subjects of inquiry ought to be formed" before the next census attempted to gather such statistics. 15

In this first attempt to graft a complicated survey on a relatively simple population schedule the weakness of the early census system was bared, and the issue of confidentiality was raised for the first time. Clearly, information about business was considered a private matter by some, and it was, therefore, an issue that had to be dealt with when the fourth enumeration was planned.16

When Secretary of State John Quincy Adams confronted the problem of the Census of 1820, he set about drafting new and careful instructions. Congress had modified the census law to gather details of sex and age in the free black arid slave population, but stipulated different age categories than those for free whites. As a corollary to gathering immigration data at ports of entry, the number of foreigners not naturalized was to be ascertained, and Congress called for another attempt at gathering economic statistics. The population (including slaves) was to be classified as engaged in agriculture, commerce, or manufacturing. A supplementary act called for an enumeration of manufacturing establishments, giving details of products, their market value, and the raw materials utilized; the kind of machinery; the amount of capital invested; contingent expenses; wages and composition of the labor force. Altogether the enumeration of manufacturing establishments comprised fourteen inquiries.17

Resistance to such detailed investigations was acknowledged by treating the economic inquiry as voluntary and separate from the population schedule. Adams wrote:

as the act lays no positive injunction upon any individual to furnish information upon the situation of his property, or his private concerns, the answers to all inquiries of that character must be altogether voluntary . . . . It is to be expected that some individuals will feel reluctant to give all the information desired in relation to manufacture ....18

Recognition of the difficulty of obtaining "private" information of an economic nature was a beginning step toward recognition of the principle of confidentiality, but no such concept was applied to the population schedules. They were still posted "for the detection of errors which may have happened in the names of the heads of families and the numbers of persons to be returned . . . . " 19

The economic data obtained by the voluntary procedure were disappointing, and objections to the economic investigation probably influenced the decision of Congress to omit such a schedule in 1830. The Census of 1830, however, did produce a significant precedent in another sector. For the first time data were collected on the blind and the deaf, a reflection of the humanitarian concern for the handicapped which was rising in America. Hesitantly, the census moved toward attention to social problems that were considered outside the legislative scope of the Congress, but about which public policy was being shaped at the State level.20

Insofar as centralization of records touches on the issue of confidentiality, the legislation for the 1830 census provides still another landmark. Congress provided for transmission to the Secretary of State of a copy of the schedules as well as an aggregate summary. Furthermore, the schedules of the first four censuses, preserved in the records of the district courts, were also to be sent to Washington. It appears that the impetus for this legislation was the desire to preserve the history of the nation, but it also indicated an urge for better statistical work by the Federal government, for Congress made provision for the returns of the earlier censuses to be organized and published with the results of the fifth enumeration. That products of this effort were "absolutely valueless," as a later census director put it, should not distract attention from the spirit of the legislation.21

A methodological advance was also recorded in the 1830 Census. Uniform printed forms were used for the first time in the enumeration, although this innovation, unfortunately, was not coupled with improvements in other fieldwork procedures. Poor fieldwork and clerical ineptitude were accompanied by the reluctance of the citizenry to answer the census inquiries. Even though economic questions were omitted, some citizens believed "that the enumeration is made with a view to the assessment of taxes, enrollment in the militia, or the collection of militia fines . . . .22

The appetite of Congress for more and better statistics grew during the decade between the fifth and sixth censuses. A Congressional resolution calling for data on population growth and militia strength led the Department of State into an early demographic analysis to which was added a study of taxation. The debate on the tariff drew the Treasury Department into a survey of manufacturers that was more elaborate than any prior census effort. Interest also flared briefly in a suggestion that an official statistician be appointed to make regular compilations of statistical materials useful to government, but in the end Congress fell back on the old pattern of depending on the census to carry the full burden.23

President Martin Van Buren, responding in part to the widespread surge of statistical interest during his administration, became an advocate of a substantially enlarged Census of 1840; and Congress agreed. It acted not only to classify individuals by their economic pursuits, but to obtain

all such information in relation to mines, agriculture, commerce, manufactures, and schools, as will exhibit a full view of the pursuits, industry, education and resources of the country . . . . 24

Drafting the schedules was left to the Secretary of State. Accordingly, a detailed economic schedule was drawn up that probed into capital investments, forms of ownership, and output of products. The question of confidentiality was raised by these new inquiries and the instructions to the enumerators took account of it:

Objections, it has been suggested, may possibly arise on the part of some persons to give the statistical information required by the act, upon the ground of disinclination to expose their private affairs. Such, however, is not the intent nor can be the effect, of answering ingenuously the interrogatories. On statistical tables no name is inserted-the figures stand opposite no man's name; and therefore the objection can not apply. It is, moreover, inculcated upon the assistant that he consider all communications made to him in the performance of this duty, relative to the business of the people, as strictly confidential.25

Although the economic questions were thought to merit protection, the population schedule was not. The act for the Census of 1840 retained the requirement that the results of the population count be posted in order to ascertain errors.26

The detailed economic inquiries were not received with equanimity by the populace, especially in rural regions. Several counties in Virginia, Georgia, Alabama, and Louisiana refused to answer them as there was no penalty attached to noncompliance. Andrew Jackson was convinced that "the foolish questions" lost the Democrats Tennessee in the presidential election. The question in many minds, not confined to one region by any means, was voiced by a leading southern journal: "Is this federal prying into the domestic economy of the people a precursor to direct taxes?"27

The defective statistics supplied by careless enumerators and evasive citizens could not be adequately detected, much less fully corrected, by the census system. William A. Weaver, who supervised the State Department clerks checking the census returns, stated that upwards of 20,000 errors were discovered in the returns from Massachusetts alone. The discovery of further errors in the printed reports led to a national discussion of census shortcomings.28 Among the many voices raised, the most significant was that of the American Statistical Association. Founded in 1839, the new organization was an active critic of the official statistics on Negro insanity, data already being cited in the national controversy over slavery. As the result of its futile struggle to get corrections made in the Census of 1840, the Association became committed to the fight for a better census in 1850.29

The American Statistical Association was not the only source of statistical enthusiasm. In varying degrees, reform groups, business associations, medical societies and agricultural organizations expressed the need for statistics related to their specific interests. At the State and local level, statistical activities ranged from sanitary surveys to registration of vital statistics to statewide censuses of agriculture and manufacturing. A small cadre of statisticians began to grow out of this experience, but there was no central statistical bureau created in Washington to attract them to the Federal service. Unlike the situation in most European countries, statistics in the United States remained decentralized and uncoordinated."30

Census Development, 1840-1880

Among all the interest groups concerning themselves with statistics there was general agreement that the Census of 1840 had been, as John Gorham Palfrey called it, "a mortifying failure,"31 and there was widespread agreement in Congress that the approaching Census of 1850 should be conducted in a better manner.

The statisticians of New York and Boston led the fight for census reform. In 1848 memorials from the New York Historical Society and the American Statistical Association, drafted by Archibald Russell and Lemuel Shattuck respectively, launched the effort. The burden of their advice was to start planning early and to utilize statistical experts. After much maneuvering in Congress, a bill was passed creating a Census Board to plan the schedules for the seventh enumeration. The Secretary of State, the Attorney General, and the Postmaster General constituted the Board. Rather than appoint a statistician to commence the work, they chose instead Joseph C. G. Kennedy of Pennsylvania, whose political credentials as a fervent Whig were impeccable. Kennedy, a lawyer and journalist, soon needed expert advice, so Russell and Shattuck were called to Washington to be his statistical consultants. In spite of a complicated wrangle involving Kennedy, the Board, and the Senate census committee, a census bill emerged in May 1850. It was primarily the product of the advice of Russell and Shattuck, but Kennedy won a victory too. He was appointed to superintend the seventh census.32

The new census schedules opened avenues of inquiry that thrust the issue of confidentiality to the fore. The schedule for the free population would list every inhabitant by name, giving, in addition, sex, age, color, nativity, place of birth, marital status, literacy, real estate ownership, and information as to whether the individual was deaf, dumb, blind, insane, idiotic, or a pauper or convict. The slave schedule was less inclusive, but more detailed than ever before. A mortality schedule listed by name all who had died in the preceding year, with personal and medical details included. The agricultural schedule covered a wide range of data on the operations of each farmer and planter; the manufacturing schedule asked for economic details on every establishment producing over $500 annually; and the schedule on social statistics asked the enumerator to gather data on various local institutions.33

Given the increased scope of the inquiry, the issue of confidentiality had to be faced. For the first time, the census bill did not require public posting of the population schedules, but it also made no provision for penalties for misuse of personal data. Kennedy's instructions on the point, however, were very clear.

Information has been received at this office that in some cases unnecessary exposure has been made by the assistant marshals with reference to the business and pursuits, and other facts relating to individuals, merely to gratify curiosity, or the facts applied to the private use or pecuniary advantage of the assistant, to the injury of others. Such a use of the returns was neither contemplated by the act itself nor justified by the intentions and designs of those who enacted the law. No individual employed under sanction of the Government to obtain these facts has a right to promulgate or expose them without authority.34

The precise nature of the abuse of confidentiality referred to does not survive in the existing records. Although Kennedy's correspondence contains many requests for information, replies were limited to aggregate data. There is only one recorded case that might be counted as a partial exception to the rule of absolute confidentiality. A man seeking his lost brother was informed that a man of a similar name was living in Texas.35 In another reply to a request for access to census schedules Kennedy wrote, "I have no objection to your taking from the office such returns as may be necessary to the purpose you name . . . ."36 However, it is not possible to ascertain the nature of "the purpose" or the specific returns referred to.

When the census duties were taken over by James D. B. De Bow in 1853, the same rules of confidentiality were applied. The chief clerk of the census, in denying a request for names and personal details from the 1850 enumeration, observed that "the question is, whether it is well, in order to oblige or benefit an individual, to risk any increase of obstacles under which the Government labors in procuring such information . . . ."37 De Bow felt, however, that the resistance encountered in 1840 to the economic questions had diminished. "Such objections were rarely raised in 1850," he wrote, "and in but two or three cases was it necessary to call in the services of the district attorney to enforce the requisitions of the law."38

The census act of 1850 governed the Census of 1860 and Kennedy once again was appointed superintendent. The eighth enu meration had all the strengths and weaknesses of the seventh, as the schedules and procedures were fixed by law. The Civil War also put unique demands on the census: the President needed data on the probable cost of compensated emancipation; the War Department wanted quotas of draftees calculated; General Sherman needed maps showing food and forage for his March to the Sea. 39

It is possible that confidentiality was breached under the stress of war, but in general the work of the Census Office proceeded very much as before. The volumes on population and agriculture appeared in 1864, and the reports on manufacturing and mortality were in hand by 1865. In that year, however, Kennedy was abruptly removed from office, demonstrating once again the vulnerability of a temporary census office to the shifting fortunes of politics.40

As the 1870 enumeration approached, it seemed evident to many statisticians that the census law of 1850 needed to be replaced with more satisfactory legislation. In Congress, the reform movement was led by James A. Garfield. After much consultation, Garfield drafted a new census act in which he sought to improve the occupational and industrial classification, to create a board to supervise the census, to shorten the census period, to improve methods of selecting census personnel, and generallv to expand the number of inquiries. One suggestion had political implications. Garfield wanted to take the appointment of census enumerators out of the hands of the Federal marshals. In suggesting replacing the marshals' districts with Congressional districts as the basis for appointment of enumerators, Garfield was, in effect, handing the Senate's patronage to the House-a move that defeated the bill when it arrived in the Senate.41

If Garfield failed to reform the census, he succeeded in nondnating its new superintendent, Francis Amasa Walker. Walker was confirmed, but he had to work within the confines of the census act of 1850 which had been modified only slightly to reflect the abolition of slavery and to eliminate some of the ambiguities in the 1850 and 1860 enumerations.42 Nonetheless, in his instructions to enumerators, Walker made clear his position on confidentiality:

No graver offense can be committed by assistant marshals than to divulge information acquired in the discharge of their duty. All disclosures should be treated as strictly confidential, with the exception hereafter to be noted in the case of the mortality schedule. Information will be solicited of any breach of confidence on the part of the assistant marshals. The department is determined to protect the citizen in all his rights in the present census . 43

The exception noted permitted the assistant marshals to submit mortality schedules to "some physician who will be willing, out of public spirit and professional interest, to glance over the entire list of diseases and correct a defective classification" of the cause of death of individuals so listed.44

In spite of Walker's preparations, the Census of 1870 suffered from an undercount of unprecedented proportions in the South. Given the limits imposed by the act of 1850, very little could be done from Washington to prevent the fiasco. The politics of Reconstruction dictated that marshals in the South, often non-residents of their districts, had to appoint loyal Republicans. The liberal use of census patronage to attract freedmen to the Party led to the appointment of illiterates as enumerators. Even when the enumerators were capable people, they had to contend with white hostility and black fear. Sometimes the work was illegally subcontracted, and sometimes, as Henry Gannett reported, census data were gathered at "court sessions, musters, public meetings, etc." Walker initially estimated the undercount of Southern blacks to be about 350 to 400 thousand but he later conceded that it probably ran as high as 510,000.45

In spite of the serious flaws in the enumeration of the South, the Census of 1870 was a marked improvement over all previous censuses. The reports were more detailed, better annotated, and the data were more clearly presented in tables and graphs. Due attention was called to limitations of the data, and Walker included a thorough historical and methodological discussion of census procedures. In a sense, the 1870 report was a brief for census reform, and that issue was joined soon again in Congress.

Census Reform, 1880-1900

Although James A. Garfield was active in promoting reform of the census, Representative Samuel S. Cox and Senator Justin Morrill led the fight in the Congress. Senator Morrill pointed out that the country had outgrown the census as conceived in 1850.

The statistical facts now required are not merely for the gratification of the curiosity of students, but are for daily, practical use in wide directions, and are to serve as the constant resource of legislators, both state and national . 46

Represenative Cox presented to the House not only an able history and critique of census practices, but also a detailed exposition of the needed reforms.47

The 1880 census act embodied many of the reforms suggested in 1870 and added a few new provisions. Federal marshals were replaced by district supervisors as the chief local functionaries. Appointed by the President, with the advice and consent of the Senate, the district supervisors were empowered to appoint enumerators, with the consent of the Superintendent of the census. The enumerators, moreover, were to be "selected solely with reference to their fitness."48 The topics to be enumerated were named in the act, but the Superintendent was given authority to set up the schedules and make reasonable modifications within the broad range of areas to be covered. The Superintendent was further empowered to hire "experts and special agents" to handle specific areas requiring special knowledge.49

These reforms clearly broke with past census practices. On the issue of confidentiality, the census-taker's oath was a decisive change as well. Each enumerator now had to swear not to disclose "any information contained in the schedules, lists or statements obtained by me to any person or persons, except to my superior officers."50 It was further stipulated that

an enumerator who shall disclose any statistics of property or business included in his return, shall be deemed guilty of a misdemeanor, and upon conviction shall forfeit a sum not exceeding five hundred dollars . . . .51

It is noteworthy that the penalty clause specifically mentions economic data, again reflecting the sensitivity felt about collecting that type of information. Notable also are the instructions to enumerators to check with attending physicians the cause of death of individuals listed in the mortality schedule,52 and the provision in a supplementary piece of legislation for correcting census returns by a method akin to the public posting procedure of earlier times. The enumerator was instructed to file with the county clerk a list of "names, with age, sex, and color, of all persons enumerated by him."53 He was further instructed to advertise his availability for 15 days at the courthouse for the purpose of making corrections in the enumeration of population, including taking evidence under oath of needed changes, and to make known to the bystanders, if any, the outcome "of such inquiry for correction and the whole number of persons by him enumerated . . . ."5· This availability of the facts of age, sex, and color in a semi-public setting, of course, ran counter to the growing emphasis on safeguarding the confidentiality of personal data collected by the census.

Charles W. Seaton, who, like Walker, combined political and statistical credentials, took over as Superintendent of the census in 1881. He guided the census through budget crises, fended off politically motivated charges of fraudulent counts in the South," and promoted the use of mechanical aids in census work, particularly a simple tallying device that had been in limited use since 1870.

The sheer volume of data collected in 1880, especially in the area of economic statistics and special studies, was impressive. Twenty two quarto volumes totalling 19,305 pages (plus a compendium of 1,898 pages) appeared between 1883 and 1888. Clearly, the outer limits of data management were reached in the 1880 enumeration and any further extension of the census would require a new system for data processing.56

Herman Hollerith, a young engineer who had worked as a special agent in the 1880 Census, became interested in the problem and, after some experimentation, invented the punched card system for recording and tabulating the census returns. Hollerith's solution was as ingenious as it was simple. Hand-tallying of raw data was replaced by punching holes in cards whose columns corresponded to census data classifications. The cards, representing individuals or other units, were then counted electrically. Even in its earliest stage of development, the Hollerith system speeded tabulations to such an extent that its merits were demonstrable before the 1890 enumeration began.57

The advent of the new system had dual implications for the question of confidentiality. On the one hand, it removed the actual census return one step farther from the final statistical process. On the other hand, it made possible the collection of even more information on individuals. On balance, however, it is probable that the Hollerith system enhanced the anonymity, and thus the confidentiality,of census data, although technologically it was the forerunner of modern computer-based record keeping.

The census act of 1890 followed closely the precedents set in 1880. The provisions for insuring confidentialty were similar with respect to the enumerator's oath and the penalties for unauthorized disclosure of personal data. However, the provision for depositing lists of individuals with the county courts was dropped. Instead, the Superintendent was authorized to disclose to "any municipal government," upon request, a list of names of its inhabitants, indicating "sex, age, birthplace, and color, or race." The enumerators were also instructed to check with the attending physician for the cause of death of persons reported in the mortality schedule.58

The census reform of 1880 did not include the establishment of a continuing census bureau and the arrangements for 1890 were equally impermanent. When Robert P. Porter was appointed Superintendent, in 1889, he had to seek out former census employees, and rescue schedules and instructions from bureaucratic oblivion. The lack of continuity, the haste in organizing for the enumeration, and the problems of patronage all made Porter's position difficult. Porter's own appointment was determined more by politics than by statistical experience. A journalist-editor, he was a vigorous protectionist and served on the Tariff Commission of 1882, and had worked on the 1880 Census; thus, his free-trade enemies kept up a barrage of criticism until his resignation in 1893.59 Congressional critics complained of slowness in completing the tabulations, a charge that had arisen after each previous enumeration, and threatened to close the Census Office in 1893. However, a series of enactment' extended its life and placed it under the direction of Carroll D. Wright, an able statistician, who was Commissioner of Labor. The status of the census as a bureaucratic orphan brought home to many the need for a permanent Census Bureau.60

The Census Bureau. 1902-29

The need for a continuing statistical organization was well-stated by De Bow in 1854:

Each census has taken care of itself. Every ten years some one at Washington will enter the hall of a department, appoint fifty or a hundred persons under him, who, perhaps, have never compiled a table before . . . .If any are qualified it is no merit of the system .. ..In Washington, as soon as an office acquires familiarity with statistics. . .it is disbanded, and even the best qualified employee is suffered to depart.61

In the following decades, other voices raised the same complaint, but Congress did not really begin to act seriously in the matter until the census crisis of the nineties. Then the approaching enumeration of 1900 made it necessary to organize a census office before a permanent bureau could be created. Moreover, the organization of the new office preserved an old duality in census operations, the political and the statistical. The position of Director embodied the former, while the Assistant Director was to be "a practical, experienced statistician." Political influence in census jobs was not eliminated.62

The act of March 6, 1902 transformed the census unit into a permanent Office, headed by a Director under whom were four chief statisticians. Provision was made for fitting census personnel into the classified civil service. The statistical duties of the office were specified and the work was spread out across the intercensal period. This is not to say that the new office settled into an uneventful period of tranquility. On the contrary, the census was to be involved in years of struggles to define its role, fend off political influence, build its professional staff, and increase the scope of its activities .63

Just before the Census Office was established, a decision of the Circuit Court of the Southern District of New York gave belated sanction to the extensive work of the census. The reasoning of District Judge Edward B. Thomas was clearly Madisonian:

The functions vested in the national government authorize the obtainment of the information . . .[in order to enact] laws adapted to the needs of the vast and varied interests of the people, after acquiring detailed knowledge thereof ....[The government has the right to] make the researches. . .[in order to meet] its ever-widening obligations. . .to the welfare of its citizens and to the world . . . .For the national government to know something, if not everything, beyond the fact that the population of each state reaches a certain limit, is apparent, when it is considered what is the dependence of this population upon the intelligent actions of the general government.

The court then cited the wide range of social and economic problems on which Congress must legislate, and concluded that

for these or similar purposes the government needs each item of information demanded by the census act, and such information, when obtained, requires the most careful study, to the end that the fulfillment of the governmental function may be wise. 64

The case did not touch on the confidentiality of personal data; but confidentiality was the subject of Congressional action in the decades that followed. The act for the 1900 Census declared unauthorized disclosure of census data to be a misdemeanor punishable by a fine of up to $500.65 A decade later the punishment was increased: upon conviction a fine not to exceed $1,000, or imprisonment of up to 2 years, or both, could be imposed at the discretion of the court.66 The Act of March 3, 1919, providing for the fourteenth census, declared such disclosure to be a felony and a fine not to exceed $1,000, or imprisonment of up to 2 years, or both, was again authorized.67

When Congress enacted a comprehensive census law for the 1930 and subsequent censuses, it retained the penalty provision of the 1919 statute. The permanent act of June 18, 1929 also included a section that succinctly stated the safeguards for confidentiality instituted in the Bureau of the Census. Section 11 provided

That the information furnished under the provisions of this Act shall be used only for the statistical purposes for which it is supplied. No publication shall be made by the Census Office whereby the data furnished by any particular establishment or individual can be identified, nor shall the Director of the Census permit anyone other than the sworn employees of the Census Office to examine the individual reports.68

During the same period (1900-1929), regulations about access to census records were established. Governors, municipal officers, and courts of record could obtain information from the schedules under the provisions of the various census acts. Private individuals, for "genealogical or other proper purposes," were allowed certain specific information, provided the information could not be used to the detriment of the person to whom it pertained. Free access to census data was limited to the records of the first nine enumerations.69


During the first century of census activity the expansion of statistical inquiry raised the issue of confidentiality. The protection of personal data provided for statistical purposes was instituted administratively, then by statute. Before 1850, population schedules were posted publicly in an effort to detect errors, but as early as 1820 assurances of confidentiality were given for economic information. From 1850 to 1870, administrative rules extended confidentiality to all census data, but it was not until 1880 that unauthorized disclosure of information about individuals was declared to be a misdemeanor. The penalties for violating confidentiality were gradually strengthened until, in 1919, unauthorized disclosure was declared a felony.

Although it is not possible to weigh the importance of the protection of confidentiality in precise terms, it clearly seems to have been one factor that made it possible for the census to grow. Even given extensive support for the Madisonian viewpoint on the value of social statistics, the corollary guarantee of confidentiality has been needed.

As late as 1929, Herbert Hoover, in his proclamation announcing the Census of 1930, felt called upon to reassure the populace:

The sole purpose of the Census is to secure general statistical information regarding the population and resources of the country, and replies are required from individuals only to permit the compilation of such general statistics. No person can be harmed in any way by furnishing the information required. The Census has nothing to do with taxation, with military or jury service, with the compulsion of school attendance, with the regulation of immigration, or with the enforcement of any national, state, or local law or ordinance. There need be no fear that any disclosure will be made regarding any individual person or his affairs. For the due protection of the rights and interests of the persons furnishing information every employee of the Census Bureau is prohibited under heavy penalty from disclosing any information which may thus come to his khowledge.70

*This paper was prepared for the Secretary's Advisory Committee on Automated Personal Data Systems. It is based in part on research supported by a grant from the American Philosophical Society whose aid is gratefully acknowledged. Professor Davis is with the Department of Sociology, Case Western Reserve University.

1 On the growth of the census, see: Carroll D. Wright and William C. Hunt, The History and Growth of the United States Census, Senate Document No. 194, 56th Congress, 1st Session, 1900, Serial 3856, and W. Stull Holt, The Bureau of the Census: Its History, Activities and Organization (Washington, D. C.: The Brookings Institution), 1929. See also Hyman Alterman, Counting People: The Census in History (New York: Harcourt, Brace & World), 1969, and Amy Herbert Scott, Census, U.S.A.: Fact Finding for the American People, 1790-1970 (New York: Seabury Press), 1968.

2Annals of Congress, 1, p. 1077.

3The schedule is reproduced in Dorothy Whitson, "1970, Year of the Nineteenth Decennial Census," Daughters of the American Revolution Magazine, Vol. CIV (1970), p. 245.

4Wright and Hunt, op. cit., p. 87.

5US. v.Moriarity, 106 Fed. 886(C.C.S.D.N.Y. 1901).

6Wright and Hunt, op. cit., pp. 926-927.

7Andrew A Lipscomb (Ed.), The Writings of Thomas Jefferson, Vol. VIII (Washington, D. C.: The Thomas Jefferson Memorial Association), 1905, p. 236.

8Tobias Lear, Circular to Marshals, March 5, 1790, in Papers of George Washington, Microfilm Edition, Series 2.

9Washington requested personal copies of the census returns, a move quite in keeping with his interest in the statistical study of Scotland by Sir John Sinclair. [Washington to Sinclair, March 15, 1793, in The Correspondence of the Right Honorable Sir John Sinclair, Bart., Vol. II (London: H. Colburn and R. Bentley), 1631, pp. 16-17. See also Franklin Knight (Ed.), Letters on Agriculture from His Excellency George Washington .. ..(Washington, D. C.: Franklin Knight), 1847.] Alexander Hamilton's interest in sound statistical data is shown in his research for his report on manufacturing. [Arthur H. Cole (Ed.), Industrial and Commercial Correspondence of Alexander Hamilton Anticipating His Report on Manufacturing (Chicago: A. W. Shaw Company), 1926.] Madison's own feelings come through in his lament to Jefferson about the truncated census bill: "It contained a schedule ascertaining the component classes of the Society, a kind of information extremely requisite to the Legislator, and much wanted for the science of Political Economy." [Letters and Other Writings of James Madison, Vol. I (Philadelphia, Pa.: L. B. Lippincott & Co.), 1865, p. 507.]

10 Wright and Hunt, op. cit., p. 19.

11Timothy Pickering, Circular to Marshals, April 30, 1800, in Pickering Papers, Massachusetts Historical Society.

12 Lipscomb, op. cit., III, p. 330.

13National Intelligencer, April 20, 1810.

14National Intelligencer, July 2, 1810.

15 Samuel L. Mitchill, "Views of the Manufactures in the United States," American Medical and Philosophical Register, Vol. 11 (1811-1812), p. 408; and Wright and Hunt, op. cit., p. 23.

16On the problems of economic statistics, see Meyer H. Fishbein, "Early Business Statistical Operations of the Federal Government," National Archives Accestions, No. 54, June 1958, pp. 1-29, and "The Censuses of Manufactures, 1810-1890," National Archives Accessions, No. 57, June 1963, pp. 1-20.

17Wright and Hunt, op. cit., pp. 26-27.

18Ibid., p. 136.


20 Harry Best, Deafness and the Deaf in the United States (New York: The Macmillan Company), 1943.

21Wright and Hunt, op. cit., pp. 2E-32. Francis A. Walker's evaluation is on page 30.

22Hazard's Pennsylvania Register, Vol. V (1830), p. 352.

23"Statistical View of the Population of the United States from 1790 to 1830, Inclusive," Senate Executive Document No. 505, 23d Congress, 2d Session, 1835, Serial 252; "Documents Relating to the Manufactures in the United States," House Document No. 308, 22d Congress, 1st Session, 1833, Serials 222 and 223; and Frank Freidel, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press), 1947, pp. 172-174.

24 Wright and Hunt, op. cit., p. 36.

25Ibid., P.145.

26 Ibid., p. 929.

27Andrew Jackson to Martin Van Buren, November 24, 1840, Papers of Martin Van Buren, Microfilm Edition; and James D. B. DeBow Statistical View of the United States.. Being a Compendium of the Seventh Census (Washington, D. C.: Beverley Tucker), 1854, p. 12,

28Proceedings proceedings of the New York Historical Society for the Year 1848 (New York: The Society), 1848. p. 45.

29Albert Deutsch, "The First U.S. Census of the Insane (1840) and Its Use as ProSlavery Propaganda," Bulletin of the History of Medicine, Vol. XV (1944), pp. 469-482; Leon F. Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press), 1961, pp. 40-46; and William Stanton, The Leopard's Spots: Scientific Attitudes Toward Race in America, 1815-59 (Chicago, Ill.: University of Chicago Press), 1%0, pp. 5866.

30See Robert C. Davis, "The Beginnings of American Social Research," in George H. Daniels (Ed.), Nineteenth-Century American Science: A Reappraisal (Evanston, Ill.: Northwestern University Press), 1972, pp. 152-178; Paul J. Fitz Patrick, "Statistical Societies in the United States in the Nineteenth Century," American Statistician, Vol. XI (December, 1957), pp. 13-21; John Koren (Ed.), The History of Statistics (New York: The Macmillan Company), 1918; Franklin H. Top (Ed.), The History of American Epidemiology (St. Louis: C. V. Mosby), 1952; and Luther L. Bernard and Jesse Bernard, Origins of American Sociology: The Social Science Movement in the United States (New York: Thomas Y. Crowell Company), 1943.

31Congressional Globe, 30th Congress, 2d Session, Vol. 18, p. 638.

32Davis, op. cit., pp. 163-166, and Wright and Hunt, op. cit., pp. 39-50.

33Wright and Hunt, op. cit., pp. 150-153, 227-229, 234-236, 312-314, and 646-649.

34Ibid., p.150.

35J. C. G. Kennedy to S. C. Miller. November 29, 1851, National Archives, Record Group 29, Census, Item 11 (Letterbook).

36J. C. G. Kennedy to William D. Cooke, September 26, 1851, loc. cit.

37T. H. Baird to George C. Whiting, May 22, 1855, National Archives, Record Group 48, Department of the Interior, Office of the Secretary, Patents and Miscellaneous Division, File 183. See also Baird to Whiting, March 23, 1855, loc. cit.

38 De Bow, op. cit., p. 12.

39Typed copy of clipping, New York Tribune, undated, enclosed in Annie E, K. Bidwell to Walter F. Willcox, June 30, 1917, in Walter F. Willcox Papers, Library of Congress. See also General William T. Sherman, Memoirs, Vol. II (New York: D. Appleton and Company), 1875, p. 31; David C. Mearns (Ed.), The Lincoln Papers, Vol. II (Garden City, L. I.: Doubleday), 1948, pp. 587-589; and Roy P. Basler (Ed.), The Collected Works of Abraham Lincoln, Vol. V (New Brunswick: Rutgers University Press), 1933, pp. 160-161.

40James Harlan to J. C. G. Kennedy, June 2, 1865; Kennedy to Harlan, June 3 and 8, 1865; Kennedy to Andrew Johnson, June 17 and 19, 1865, in Andrew Johnson Papers, Microfilm Edition.

41Mary L. Hinsdale (Ed.), Garfield-Hinsdale Letters (Amy Arbor: University of Michigan Press), 1949, pp. 146-147; Congressional Globe, 41 st Congress, 2d Session, Vol. 42, Part 2, p. 1147; James P. Munroe, A Life of Francis Amasa Walker (New York: Henry Holt and Company), 1923, p. 109: Theodore Clarke Smith, The Life and Letters of James Abram Garfield, Vol. II (New Haven: Yale University Press), 1925, pp. 794-795; and Francis Amasa Walker, "American Industry and the Census," Atlantic Monthly, Vol. XXIV (1869), pp. 689-701; "The Census Imbroglio," The Nation, February 24, 1870, p. 116.

42Wright and Hunt, op. cit., pp. 54-56

43Ibid., p. 156.

44 Ibid, p. 161.

45New York Times March 8, 1891; Francis A. Walker, Discussions in Economics and Statistics, Vol. II (New York: Henry Holt and Company), 1899, pp. 49-58; and Henry Gannett, "The Alleged Census Frauds in the South," International Review, Vol. X (1881), pp. 459-467. The total undercount is estimated at about 1,260,000 in U. S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957 (Washington, D. C.: U. S. Government Printing office), 1960, p. 12. For the problem of underenumeration, see Advisory Committee on Problems of Census Enumeration, Carole W. Parsons (Ed.), America's Uncounted People (Washington, D. C.: National Academy of Sciences National Research Council), 1972.

46Congressional Record, 45th Congress, 3d Session, Vol. 8, Put 2, p. 1049.

47Ibid., pp. 1534-1544, and David Lindsey, "Sunset" Cox: Irrepressible Democrat (Detroit, Mich.: Wayne State University Press), 1959, p. 190.

48Ibid.,Wright and Hunt, Ibid., pp. 155-166, 936-943.

49Ibid.,p, 65.

50Ibid., p. 937.

51Ibid., p. 938.

52Ibid., p. 231.

53Ibid., p. 942.

54Ibid., pp. 942-943.

55Gannett, op. cit.; Francis A. Walker, "The Eleventh Census of the United States," Quarterly Journal of Economics, Vol. II (1887-1888), pp. 135-161.

56Wright and Hunt, op. cit., pp.58-69.

57Leon F. Truesdell, The Development ofPunch Card Tabulation in the Bureau of the Census, 1890-1940 (Washington, D. C.: U.S. Government Printing Office), 1965, pp. 26-56.

58Wright and Hunt, op. cit., pp. 233 and 948.

59Holt, op. cit., pp. 27-31.

60Wright and Hunt, op. cit., pp. 69-76.

61De Bow, op. cit., p. 18.

62Holt, op. cit., pp. 31-34.

63Ibid., pp. 34-36 (for the period 1902-1930).

64U.S. v. Moriarity, 106 Fed. 886, 691, 692 (C.C.S.D.N.Y. 1901). See 14 Am Jur 2d, Census, for an excellent summary of the legal status of the census by Henry C. Land.

65Act of Match 3, 1899, ch. 419, aec. 21, 30 Stat. 1020.

66Act of March 3, 1909, ch. 2, sec. 22, 36 Stat. 8.

67Act of March 3, 1919, ch. 97, sec. 22, 40 Stat. 1299.

68Act of June 18, 1929, ch. 28, sec., 11, 46 Star. 25.

69Holt, op. cit., pp. 85-86.

7046 Stat. 3012. Proclamation by Herbert Hoover, November 22, 1929.