U.S. Supreme Court Presser v. Illinois, 116
U.S. 252 (1886) Presser v. Illinois Argued November 23-24,
1885 Decided January 4,
1886 116
U.S. 252 ERROR TO THE SUPREME
COURT OF THE STATE OF
ILLINOIS Syllabus The doctrine that statutes constitutional in part only will be
upheld as to what is constitutional if it can he separated from the
unconstitutional provisions reasserted.

															A state statute providing that all able-bodied male citizens of
the state between eighteen and forty-flue, except those exempted,
shall be subject to military duty, and shall he enrolled and
designated as the state militia, and prohibiting all bodies of men
other than the regularly organized volunteer militia of the state
and the troops of the United States from associating together as
military organizations or drilling or parading with arms in any
city of the state without license from the governor as to Page 116 U. S. 253 these provisions is constitutional, and does not infringe the
laws of the United States, and it is sustained as to them, although
the act contains other provisions, separable from the foregoing,
which it was contended infringed upon the powers vested in the
United States by the Constitution or upon laws enacted by Congress
in pursuance thereof.

															The provision in the Second Amendment to the Constitution, that
"The right of the people to keep and bear arms shall not be
infringed" is a limitation only on the power of Congress and the
national government, and not of the states. But in view of the fact
that all citizens capable of bearing arms constitute the reserved
military force of the national government as well as in view of its
general powers, the states cannot prohibit the people from keeping
and bearing arms so as to deprive the United States of their
rightful resource for maintaining the public security.

															The provision in the Fourteenth Amendment to the Constitution
that "No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States" does
not prevent a state from passing such laws to regulate the
privileges and immunities of its own citizens as do not abridge
their privileges and immunities as citizens of the United
States.

															Unless restrained by their own constitutions, state legislatures
may enact statutes to control and regulate all organizations,
drilling, and parading of military bodies and associations except
those which are authorized by the militia laws of the United
States.

															Herman Presser, the plaintiff in error, was indicted on
September 24, 1879, in the Criminal Court of Cook County, Illinois,
far a violation of the following sections of Art. XI of the
Military Code of that state, Act of May 28, 1879, Laws of 1879,
192.

															"§ 5. It shall not be lawful for any body of men whatever other
than the regular organized volunteer militia of this state and the
troops of the United States to associate themselves together as a
military company or organization, or to drill or parade with arms
in any city or town of this state without the license of the
Governor thereof, which license may at any time be revoked, and
provided further that students in educational institutions
where military science is a part of the course of instruction may,
with the consent of the Governor, drill and parade with arms in
public under the superintendence of their instructors, and may take
part in any regimental or brigade encampment under command of their
military instructor, and while so encamped shall be governed by the
provisions of this act. They shall be entitled only to
transportation Page 116 U. S. 254 and subsistence, and shall report and be subject to the
commandant of such encampment, provided that nothing
herein contained shall be construed so as to prevent benevolent or
social organizations from wearing swords."

															"§ 6. Whoever offends against the provisions of the preceding
section or belongs to or parades with any such unauthorized body of
men with arms shall be punished by a fine not exceeding the sum of
ten dollars ($10), or by imprisonment in the common jail for a term
not exceeding six months, or both."

															The indictment charged in substance that Presser, on September
24, 1879, in the County of Cook, in the State of Illinois,

															"did unlawfully belong to and did parade and drill in the City
of Chicago with an unauthorized body of men with arms who had
associated themselves together as a military company and
organization without having a license from the governor, and not
being a part of or belonging to 'the regular organized volunteer
militia' of the State of Illinois or the troops of the United
States."

															A motion to quash the indictment was overruled. Presser then
pleaded not guilty, and, both parties having waived a jury, the
case was tried by the court, which found Presser guilty and
sentenced him to pay a fine of $10.

															The bill of exceptions taken upon the trial set out all the
evidence, from which it appeared that Presser was thirty-one years
old, a citizen of the United States and of the State of Illinois,
and a voter; that he belonged to a society called the "Lehr und
Wehr Verein," a corporation organized April 16, 1875, in due form,
under chapter 32, Revised Statutes of Illinois, called the "General
Incorporation Laws of Illinois," "for the purpose," as expressed by
its certificate of association,

															"of improving the mental and bodily condition of its members so
as to qualify them for the duties of citizens of a republic. Its
members shall therefore obtain, in the meetings of the association,
a knowledge of our laws and political economy, and shall also be
instructed in military and gymnastic exercises;"

															that Presser, in December, 1879, marched at the head of said
company, about four hundred in number, in the streets of the
City Page 116 U. S. 255 of Chicago, he riding on horseback and in command; that the
company was armed with rifles, and Presser with a cavalry sword;
that the company had no license from the Governor of Illinois to
drill or parade as a part of the militia of the state, and was not
a part of the regular organized militia of the state, nor a part of
troops of the United States, and had no organization under the
militia law of the United States. The evidence showed no other
facts. Exceptions were reserved to the ruling of the court upon the
motion to quash the indictment, to the finding of guilty, and to
the judgment thereon. The case was taken to the Supreme Court of
Illinois, where the judgment was affirmed. Thereupon Presser
brought the present writ of error for a review of the judgment of
affirmance. Page 116 U. S. 260 MR. JUSTICE WOODS delivered the opinion of the Court. After
stating the facts in the language reported above, he continued:

															The position of the plaintiff in error in this Court was that
the entire statute under which he was convicted was invalid and
void because its enactment was the exercise of a power by the
Legislature of Illinois forbidden to the states by the Constitution
of the United States. The clauses of the Constitution of the United
States referred to in the assignments of error were as follows:

															"Art. I, sec. 8. The Congress shall have power . . . to raise
and support armies; . . . to provide for calling forth the militia
to execute the laws of the union, suppress insurrections, and repel
invasions; to provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed in
the service of the United States, reserving to the states,
respectively, the appointment of the officers, and the authority of
training the militia, according to the discipline prescribed by
Congress; . . . to make all laws which shall be necessary and
proper, for carrying into execution the foregoing powers,"

															&c.

															"Art. I, sec. 10. No state shall, without the consent of
Congress, keep troops . . . in time of peace."

															"Art. II of Amendments. A well regulated militia being necessary
to the security of a free state, the right of the people to keep
and bear arms shall not be infringed."

															The plaintiff in error also contended that the enactment of the
5th and 6th sections of Article XI of the Military Code Page 116 U. S. 261 was forbidden by subdivision 3 of section 9, Art. I, which
declares "No bill of attainder or ex post facto law shall
be passed," and by Art. XIV of Amendments, which provides that

															"No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor
shall any state deprive any person of life, liberty, or property
without due process of law."

															The first contention of counsel for plaintiff in error is that
the Congress of the United States having, by virtue of the
provisions of Article I of section 8, above quoted, passed the Act
of May 8, 1792, entitled "An act more effectually to provide for
the national defense by establishing an uniform militia throughout
the United States," 1 Stat. 271, the Act of February 28, 1795, "to
provide for calling forth the militia to execute the laws of the
union, suppress insurrections, and repel invasions," 1 Stat. 424,
and the Act of July 22, 1861, "to authorize the employment of
volunteers to aid in enforcing the laws and protecting public
property," 12 Stat. 268, and other subsequent acts, now forming
"Title 16, The Militia," of the Revised Statutes of the United
States, the Legislature of Illinois had no power to pass the act
approved May 28, 1879, "to provide for the organization of the
state militia," entitled the Military Code of Illinois, under the
provisions of which (sections 5 and 6 of Article XI) the plaintiff
in error was indicted.

															The argument in support of this contention is that the power of
organizing, arming, and disciplining the militia being confided by
the Constitution to Congress, when it acts upon the subject, and
passes a law to carry into effect the constitutional provision,
such action excludes the power of legislation by the state on the
same subject.

															It is further argued that the whole scope and object of the
Military Code of Illinois is in conflict with that of the law of
Congress. It is said that the object of the act of Congress is to
provide for organizing, arming, and disciplining all the
able-bodied male citizens of the states, respectively, between
certain ages, that they may be ready at all times to respond to the
call of the nation to enforce its laws, suppress insurrection,
and Page 116 U. S. 262 repel invasion, and thereby avoid the necessity for maintaining
a large standing army, with which liberty can never be safe, and
that, on the other hand, the effect if not object of the Illinois
statute is to prevent such organizing, arming, and disciplining of
the militia.

															The plaintiff in error insists that the act of Congress requires
absolutely all able-bodied citizens of the state, between certain
ages, to be enrolled in the militia; that the act of Illinois makes
the enrollment dependent on the necessity for the use of troops to
execute the laws and suppress insurrections, and then leaves it
discretionary with the governor by proclamation to require such
enrollment; that the act of Congress requires the entire enrolled
militia of the state, with a few exemptions made by it and which
may be made by state laws, to be formed into companies, battalions,
regiments, brigades, and divisions; that every man shall be armed
and supplied with ammunition; provides a system of discipline and
field exercises for companies, regiments, &c., and subjects the
entire militia of the state to the call of the President to enforce
the laws, suppress insurrection, or repel invasion, and provides
for the punishment of the militia officers and men who refuse
obedience to his orders. On the other hand, it is said that the
state law makes it unlawful for any of its able-bodied citizens,
except eight thousand, called the "Illinois National Guard," to
associate themselves together as a military company or to drill or
parade with arms without the license of the governor, and declares
that no military company shall leave the state with arms and
equipments without his consent; that even the eight thousand men
styled the "Illinois National Guard" are not enrolled or organized
as required by the act of Congress, nor are they subject to the
call of the President, but they constitute a military force sworn
to serve in the military service of the state, to obey the orders
of the governor, and not to leave the state without his consent,
and that, if the state act is valid, the national act providing for
organizing, arming, and disciplining the militia is of no force in
the State of Illinois, for the Illinois act, so far from being in
harmony with the act of Congress, is an insurmountable obstacle to
its execution. Page 116 U. S. 263 We have not found it necessary to consider or decide the
question thus raised as to the validity of the entire Military Code
of Illinois, for, in our opinion, the sections under which the
plaintiff in error was convicted may be valid even if the other
sections of the act were invalid. For it is a settled rule

															"that statutes that are constitutional in part only will be
upheld so far as they are not in conflict with the Constitution,
provided the allowed and prohibited parts are separable." Packet Co. v. Keokuk, 95 U. S. 80 ; Penniman's Case, 103 U. S. 714 , 103 U. S. 717 ; Unity v. Burrage, 103 U. S. 459 . See also Trademark Cases, 100 U. S.
82 .

															We are of opinion that this rule is applicable in this case. The
first two sections of Article I of the Military Code provide that
all able-bodied male citizens of the state between the ages of 18
and 45 years, except those exempted, shall be subject to military
duty, and be designated the "Illinois state Militia," and declare
how they shall be enrolled and under what circumstances. The
residue of the Code, except the two sections on which the
indictment against the plaintiff in error is based, provides for a
volunteer active militia, to consist of not more than eight
thousand officers and men, declares how it shall be enlisted and
brigaded, and the term of service of its officers and men; provides
for brigade generals and their staffs, for the organization of the
requisite battalions and companies and the election of company
officers; provides for inspections, parades, and encampments, arms
and armories, rifle practice, and courts-martial; provides for the
pay of the officers and men, for medical service, regimental bands,
books of instructions and maps; contains provisions for levying and
collecting a military fund by taxation, and directs how it shall be
expended, and appropriates $25,000 out of the Treasury, in advance
of the collection of the military fund, to be used for the purposes
specified in the Military Code.

															It is plain from this statement of the substance of the Military
Code that the two sections upon which the indictment against the
plaintiff in error is based may be separated from the residue of
the Code and stand upon their own independent provisions. These
sections might have been left out of the Page 116 U. S. 264 Military Code and put in an act by themselves, and the act thus
constituted and the residue of the Military Code would have been
coherent and sensible acts. If it be conceded that the entire
Military Code, except these sections, is unconstitutional and
invalid for the reasons stated by the plaintiff in error, these
sections are separable, and, put in an act by themselves, could not
be considered as forbidden by the clauses of the Constitution
having reference to the militia or to the clause forbidding the
states, without the consent of Congress, to keep troops in time of
peace. There is no such connection between the sections which
prohibit any body of men, other than the organized militia of the
state and the troops of the United States, from associating as a
military company and drilling with arms in any city or Town of the
state, and the sections which provide for the enrollment and
organization of the state militia, as makes it impossible to
declare one, without declaring both, invalid.

															This view disposes of the objection to the judgment of the
Supreme Court of Illinois, which judgment was in effect that the
legislation on which the indictment is based is not invalid by
reason of the provisions of the Constitution of the United States
which vest Congress with power to raise and support armies, and to
provide for calling out, organizing, arming, and disciplining the
militia, and governing such part of them as may be employed in the
service of the United States, and that provision which declares
that "no state shall, without the consent of Congress, . . . keep
troops . . . in time of peace."

															We are next to inquire whether the 5th and 6th sections of
Article XI of the Military Code are in violation of the other
provisions of the Constitution of the United States relied on by
the plaintiff in error. The first of these is the Second Amendment,
which declares: "A well regulated militia being necessary to the
security of a free state, the right of the people to keep and bear
arms shall not be infringed."

															We think it clear that the sections under consideration, which
only forbid bodies of men to associate together as military
organizations, or to drill or parade with arms in cities Page 116 U. S. 265 and towns unless authorized by law, do not infringe the right of
the people to keep and bear arms. But a conclusive answer to the
contention that this amendment prohibits the legislation in
question lies in the fact that the amendment is a limitation only
upon the power of Congress and the national government, and not
upon that of the state. It was so held by this Court in the case of United States v. Cruikshank, 92 U. S.
542 , 92 U. S. 553 ,
in which THE CHIEF JUSTICE, in delivering the judgment of the
Court, said that the right of the people to keep and bear arms

															"is not a right granted by the Constitution. Neither is it in
any manner dependent upon that instrument for its existence. The
Second Amendment declares that it shall not be infringed, but this,
as has been seen, means no more than that it shall not be infringed
by Congress. This is one of the amendments that has no other effect
than to restrict the powers of the national government, leaving the
people to look for their protection against any violation by their
fellow citizens of the rights it recognizes to what is called in City of
New York v. Miln , 11 Pet. 102, 36 U. S.
139 , the 'powers which relate to merely municipal
legislation, or what was perhaps more properly called internal
police,' 'not surrendered or restrained' by the Constitution of the
United States." See also Barron v.
Baltimore , 7 Pet. 243; Fox v.
State , 5 How. 410; Twitchell
v. Commonwealth , 7 Wall. 321, 74 U. S. 327 ; Jackson v. Wood, 2 Cowen 819; Commonwealth v.
Purchase, 2 Pick. 521; United States v. Cruikshank, 1
Woods 308; North Carolina v. Newsom, 5 Iredell 250; Andrews v. State, 3 Heiskell 165; Fife v. State, 31 Ark. 455.

															It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the
United States as well as of the states, and, in view of this
prerogative of the general government, as well as of its general
powers, the states cannot, even laying the constitutional provision
in question out of view, prohibit the people from keeping and
bearing arms so as to deprive the United States of their rightful
resource for maintaining the public security, and disable the
people from performing their duty to the general government. But as
already stated, we think Page 116 U. S. 266 it clear that the sections under consideration do not have this
effect.

															The plaintiff in error next insists that the sections of the
Military Code of Illinois under which he was indicted are an
invasion of that clause of the first section of the Fourteenth
Amendment to the Constitution of the United States which declares
"No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States." It is
only the privileges and immunities of citizens of the United States
that the clause relied on was intended to protect. A state may pass
laws to regulate the privileges and immunities of its own citizens,
provided that in so doing it does not abridge their privileges and
immunities as citizens of the United States. The inquiry is
therefore pertinent what privilege or immunity of a citizen of the
United States is abridged by sections 5 and 6 of Article XI of the
Military Code of Illinois?

															The plaintiff in error was not a member of the organized
volunteer militia of the State of Illinois, nor did he belong to
the troops of the United States or to any organization under the
militia law of the United States. On the contrary, the fact that he
did not belong to the organized militia or the troops of the United
States was an ingredient in the offense for which he was convicted
and sentenced. The question is therefore had he a right as a
citizen of the United States, in disobedience of the state law, to
associate with others as a military company and to drill and parade
with arms in the towns and cities of the state? If the plaintiff in
error has any such privilege, he must be able to point to the
provision of the Constitution or statutes of the United States by
which it is conferred. For, as was said by this Court in United
States v. Cruikshank, 92 U. S. 542 , 92 U. S. 551 , 92 U. S. 560 ,
the government of the United States, although it is

															"within the scope of its powers supreme and above the states, .
. . can neither grant nor secure to its citizens any right or
privilege not expressly or by implication placed under its
jurisdiction. . . . All that cannot be so granted or so secured are
left to the exclusive protection of the state. " Page 116 U. S. 267 We have not been referred to any statute of the United States
which confers upon the plaintiff in error the privilege which he
asserts. The only clause in the Constitution which upon any
pretense could be said to have any relation whatever to his right
to associate with others as a military company is found in the
First Amendment, which declares that

															"Congress shall make no laws . . . abridging . . . the right of
the people peaceably to assemble and to petition the government for
a redress of grievances."

															This is a right which it was held in United States v.
Cruikshank, above cited, was an attribute of national
citizenship, and, as such, under the protection of and guaranteed
by the United States. But it was held in the same case that the
right peaceably to assemble was not protected by the clause
referred to unless the purpose of the assembly was to petition the
government for a redress of grievances.

															The right voluntarily to associate together as a military
company or organization or to drill or parade with arms without and
independent of an act of Congress or law of the state authorizing
the same is not an attribute of national citizenship. Military
organization and military drill and parade under arms are subjects
especially under the control of the government of every country.
They cannot be claimed as a right independent of law. Under our
political system, they are subject to the regulation and control of
the state and federal governments, acting in due regard to their
respective prerogatives and powers. The Constitution and laws of
the United States will be searched in vain for any support to the
view that these rights are privileges and immunities of citizens of
the United States independent of some specific legislation on the
subject.

															It cannot be successfully questioned that the state governments,
unless restrained by their own constitutions, have the power to
regulate or prohibit associations and meetings of the people,
except in the case of peaceable assemblies to perform the duties or
exercise the privileges of citizens of the United States, and have
also the power to control and regulate the organization, drilling,
and parading of military bodies and associations, except when such
bodies or associations, are Page 116 U. S. 268 authorized by the militia laws of the United States. The
exercise of this power by the states is necessary to the public
peace, safety, and good order. To deny the power would be to deny
the right of the state to disperse assemblages organized for
sedition and treason, and the right to suppress armed mobs bent on
riot and rapine.

															In the case of New York v.
Miln , 11 Pet. 102, 36 U. S. 139 ,
this Court said:

															"We choose rather to plant ourselves on what we consider
impregnable positions. They are these: that a state has the same
undeniable and unlimited jurisdiction over all persons and things
within its territorial limits as any foreign nation where that
jurisdiction is not surrendered or restrained by the Constitution
of the United States; that by virtue of this, it is not only the
right but the bounden and solemn duty of a state to advance the
safety, happiness, and prosperity of its people and to provide for
its general welfare by any and every act of legislation which it
may deem to be conducive to these ends where the power over the
particular subject or the manner of its exercise is not surrendered
or restrained in the manner just stated,"

															namely by the Constitution and laws of the United States. See also Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 203 ; Gilman v.
Philadelphia , 3 Wall. 713; License
Tax Cases , 5 Wall. 462; United
States v. Dewitt , 9 Wall. 41; United States v.
Cruikshank, 92 U. S. 542 . These
considerations and authorities sustain the power exercised by the
Legislature of Illinois in the enactment of sections 5 and 6 of
Article XI of the Military Code.

															The argument of the plaintiff in error that the legislation
mentioned deprives him of either life, liberty, or property without
due process of law, or that it is a bill of attainder or ex
post facto law is so clearly untenable as to require no
discussion.

															It is next contended by the plaintiff in error that sections 5
and 6 of Article XI of the Military Code, under which he was
indicted, are in conflict with the acts of Congress for the
organization of the militia. But this position is based on what
seems to us to be an unwarranted construction of the sections
referred to. It is clear that their object was to forbid voluntary
military associations, unauthorized by law, from organizing or Page 116 U. S. 269 drilling and parading with arms in the cities or towns of the
state, and not to interfere with the organization, arming and
drilling of the militia under the authority of the acts of
Congress. If the object and effect of the sections were in
irreconcilable conflict with the acts of Congress, they would, of
course, be invalid. But it is a rule of construction that a statute
must be interpreted so as, if possible, to make it consistent with
the Constitution and the paramount law. Parsons v.
Bedford , 3 Pet. 433; Grenada County Supervisors
v. Brogden, 112 U. S. 261 ; Marshall v. Grimes, 41 Miss. 27. If we yielded to this
contention of the plaintiff in error, we should render the sections
in valid by giving them a strained construction, which would make
them antagonistic to the law of Congress. We cannot attribute to
the legislature, unless compelled to do so by its plain words, a
purpose to pass an act in conflict with an act of Congress on a
subject over which Congress is given authority by the Constitution
of the United States. We are therefore of opinion that, fairly
construed, the sections of the Military Code referred to do not
conflict with the laws of Congress on the subject of the
militia.

															The plaintiff in error further insists that the organization of
the Lehr und Wehr Verein as a corporate body under the general
corporation law of the State of Illinois was in effect a license
from the governor within the meaning of section 5 of Article XI of
the Military Code, and that such corporate body fell within the
exception of the same section "of students in educational
institutions where military science is a part of the course of
instruction."

															In respect to these points, we have to say that they present no
federal question. It is not, therefore, our province to consider or
decide them. Murdock v.
Memphis , 20 Wall. 590.

															All the federal questions presented by the record were rightly
decided by the Supreme Court of Illinois. Judgment affirmed.

Summary:
The U.S. Supreme Court case Presser v. Illinois (1886) dealt with the constitutionality of an Illinois state statute regulating military organizations and the bearing of arms. The Court upheld the statute, finding that it did not infringe on the Second Amendment right to keep and bear arms, as that amendment is a limitation on the national government and does not restrict state governments. The Court also found that the statute did not violate the Fourteenth Amendment, as it regulated the privileges and immunities of Illinois citizens without infringing on their rights as U.S. citizens.

The case established that state legislatures have the power to enact laws controlling and regulating military organizations and the bearing of arms, except for those organizations authorized by federal militia laws. It affirmed the ability of states to pass laws regulating their citizens' privileges and immunities as long as they do not infringe on federal rights.


U.S. Supreme Court Jacobson v. Massachusetts, 197 U.S.
11 (1905) Jacobson v.
Massachusetts No. 70 Argued December 6,
1904 Decided February 20,
1905 197 U.S.
11 ERROR TO THE SUPREME
COURT OF THE STATE OF
MASSACHUSETTS Syllabus The United States does not derive any of its substantive powers
from the Preamble of the Constitution. It cannot exert any power to
secure the declared objects of the Constitution unless, apart from
the Preamble, such power be found in, or can properly be implied
from, some express delegation in the instrument.

															While the spirit of the Constitution is to be respected not less
than its letter, the spirit is to be collected chiefly from its
words.

															While the exclusion of evidence in the state court in a case
involving the constitutionality of a state statute may not strictly
present a Federal question, this court may consider the rejection
of such evidence upon the ground of incompetency or immateriality
under the statute as showing its scope and meaning in the opinion
of the state court.

															The police power of a State embraces such reasonable regulations
relating to matters completely within its territory, and not
affecting the people of other States, established directly by
legislative enactment, as will protect the public health and
safety.

															While a local regulation, even if based on the acknowledged
police power of a State, must always yield in case of conflict with
the exercise by the General Government of any power it possesses
under the Constitution, the mode or manner of exercising its police
power is wholly within the discretion of the State so long as the
Constitution of the United States is not contravened, or any right
granted or secured thereby is not infringed, or not exercised in
such an arbitrary and oppressive manner as to justify the
interference of the courts to prevent wrong and oppression.

															The liberty secured by the Constitution of the United States
does not import an absolute right in each person to be at all
times, and in all circumstances, wholly freed from restraint, nor
is it an element in such liberty that one person, or a minority of
persons residing in any community and enjoying the benefits of its
local government, should have power to dominate the majority when
supported in their action by the authority of the State.

															It is within the police power of a State to enact a compulsory
vaccination law, and it is for the legislature, and not for the
courts, to determine Page 197 U. S. 12 in the first instance whether vaccination is or is not the best
mode for the prevention of smallpox and the protection of the
public health.

															There being obvious reasons for such exception, the fact that
children, under certain circumstances, are excepted from the
operation of the law does not deny the equal protection of the laws
to adults if the statute is applicable equally to all adults in
like condition.

															The highest court of Massachusetts not having held that the
compulsory vaccination law of that State establishes the absolute
rule that an adult must be vaccinated even if he is not a fit
subject at the time or that vaccination would seriously injure his
health or cause his death, this court holds that, as to an adult
residing in the community, and a fit subject of vaccination, the
statute is not invalid as in derogation of any of the rights of
such person under the Fourteenth Amendment.

															This case involves the validity, under the Constitution of the
United States, of certain provisions in the statutes of
Massachusetts relating to vaccination.

															The Revised Laws of that Commonwealth, c. 75, § 137, provide
that

															"the board of health of a city or town if, in its opinion, it is
necessary for the public health or safety shall require and enforce
the vaccination and revaccination of all the inhabitants thereof
and shall provide them with the means of free vaccination. Whoever,
being over twenty-one years of age and not under guardianship,
refuses or neglects to comply with such requirement shall forfeit
five dollars."

															An exception is made in favor of "children who present a
certificate, signed by a registered physician that they are unfit
subjects for vaccination." § 139.

															Proceeding under the above statutes, the Board of Health of the
city of Cambridge, Massachusetts, on the twenty-seventh day of
February, 1902, adopted the following regulation:

															"Whereas, smallpox has been prevalent to some extent in the city
of Cambridge and still continues to increase; and whereas it is
necessary for the speedy extermination of the disease that all
persons not protected by vaccination should be vaccinated, and
whereas, in the opinion of the board, the public health and safety
require the vaccination or revaccination of all the inhabitants of
Cambridge; be it ordered, that Page 197 U. S. 13 all the inhabitants of the city who have not been successfully
vaccinated since March 1, 1897, be vaccinated or revaccinated."

															Subsequently, the Board adopted an additional regulation
empowering a named physician to enforce the vaccination of persons
as directed by the Board at its special meeting of February 27.

															The above regulations being in force, the plaintiff in error,
Jacobson, was proceeded against by a criminal complaint in one of
the inferior courts of Massachusetts. The complaint charged that,
on the seventeenth day of July, 1902, the Board of Health of
Cambridge, being of the opinion that it was necessary for the
public health and safety, required the vaccination and
revaccination of all the inhabitants thereof who had not been
successfully vaccinated since the first day of March, 1897, and
provided them with the means of free vaccination, and that the
defendant, being over twenty-one years of age and not under
guardianship, refused and neglected to comply with such
requirement.

															The defendant, having been arraigned, pleaded not guilty. The
government put in evidence the above regulations adopted by the
Board of Health, and made proof tending to show that its chairman
informed the defendant that, by refusing to be vaccinated, he would
incur the penalty provided by the statute, and would be prosecuted
therefor; that he offered to vaccinate the defendant without
expense to him, and that the offer was declined, and defendant
refused to be vaccinated.

															The prosecution having introduced no other evidence, the
defendant made numerous offers of proof. But the trial court ruled
that each and all of the facts offered to be proved by the
defendant were immaterial, and excluded all proof of them.

															The defendant, standing upon his offers of proof and introducing
no evidence, asked numerous instructions to the jury, among which
were the following:

															That section 137 of chapter 75 of the Revised Laws of
Massachusetts was in derogation of the rights secured to the
defendant by the Preamble to the Constitution of the United Page 197 U. S. 14 States, and tended to subvert and defeat the purposes of the
Constitution as declared in its Preamble;

															That the section referred to was in derogation of the rights
secured to the defendant by the Fourteenth Amendment of the
Constitution of the United States, and especially of the clauses of
that amendment providing that no State shall make or enforce any
law abridging the privileges or immunities of citizens of the
United States, nor deprive any person of life, liberty or property
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws; and

															That said section was opposed to the spirit of the
Constitution.

															Each of the defendant's prayers for instructions was rejected,
and he duly excepted. The defendant requested the court, but the
court refused, to instruct the jury to return a verdict of not
guilty. And the court instructed the jury, in substance, that, if
they believed the evidence introduced by the Commonwealth and were
satisfied beyond a reasonable doubt that the defendant was guilty
of the offense charged in the complaint, they would be warranted in
finding a verdict of guilty. A verdict of guilty was thereupon
returned.

															The case was then continued for the opinion of the Supreme
Judicial Court of Massachusetts. That court overruled all the
defendant's exceptions, sustained the action of the trial court,
and thereafter, pursuant to the verdict of the jury, he was
sentenced by the court to pay a fine of five dollars. And the court
ordered that he stand committed until the fine was paid. Page 197 U. S. 22 MR. JUSTICE HARLAN, after making the foregoing statement,
delivered the opinion of the court.

															We pass without extended discussion the suggestion that the
particular section of the statute of Massachusetts now in question
(§ 137, c. 75) is in derogation of rights secured by the Preamble
of the Constitution of the United States. Although that Preamble
indicates the general purposes for which the people ordained and
established the Constitution, it has never been regarded as the
source of any substantive power conferred on the Government of the
United States or on any of its Departments. Such powers embrace
only those expressly granted in the body of the Constitution and
such as may be implied from those so granted. Although, therefore,
one of the declared objects of the Constitution was to secure the
blessings of liberty to all under the sovereign jurisdiction and
authority of the United States, no power can be exerted to that end
by the United States unless, apart from the Preamble, it be found
in some express delegation of power or in some power to be properly
implied therefrom. 1 Story's Const. § 462.

															We also pass without discussion the suggestion that the above
section of the statute is opposed to the spirit of the
Constitution. Undoubtedly, as observed by Chief Justice Marshall,
speaking for the court in Sturges v.
Crowninshield , 4 Wheat. 122, 17 U. S.
202 ,

															"the spirit of an instrument, especially of a constitution, is
to be respected not less than its letter, yet the spirit is to be
collected chiefly from its words."

															We have no need in this case to go beyond the plain, obvious
meaning of the words in those provisions of the Constitution which,
it is contended, must control our decision.

															What, according to the judgment of the state court, is the Page 197 U. S. 23 scope and effect of the statute? What results were intended to
be accomplished by it? These questions must be answered.

															The Supreme Judicial Court of Massachusetts said in the present
case:

															"Let us consider the offer of evidence which was made by the
defendant Jacobson. The ninth of the propositions which he offered
to prove, as to what vaccination consists of, is nothing more than
a fact of common knowledge, upon which the statute is founded, and
proof of it was unnecessary and immaterial. The thirteenth and
fourteenth involved matters depending upon his personal opinion,
which could not be taken as correct, or given effect, merely
because he made it a ground of refusal to comply with the
requirement. Moreover, his views could not affect the validity of
the statute, nor entitle him to be excepted from its provisions. Commonwealth v. Connelly, 163 Massachusetts 539; Commonwealth v. Has, 122 Massachusetts 40; Reynolds v.
United States, 98 U. S. 145 ; Regina v.
Downes, 13 Cox C.C. 111. The other eleven propositions all
relate to alleged injurious or dangerous effects of vaccination.
The defendant 'offered to prove and show by competent evidence'
these so-called facts. Each of them, in its nature, is such that it
cannot be stated as a truth, otherwise than as a matter of opinion.
The only 'competent evidence' that could be presented to the court
to prove these propositions was the testimony of experts, giving
their opinions. It would not have been competent to introduce the
medical history of individual cases. Assuming that medical experts
could have been found who would have testified in support of these
propositions, and that it had become the duty of the judge, in
accordance with the law as stated in Commonwealth v.
Anthes, 5 Gray 185, to instruct the jury as to whether or not
the statute is constitutional, he would have been obliged to
consider the evidence in connection with facts of common knowledge,
which the court will always regard in passing upon the
constitutionality of a statute. He would have considered this
testimony of experts in connection with the facts, that for nearly
a century, most of the members of the medical profession Page 197 U. S. 24 have regarded vaccination, repeated after intervals, as a
preventive of smallpox; that, while they have recognized the
possibility of injury to an individual from carelessness in the
performance of it, or even, in a conceivable case, without
carelessness, they generally have considered the risk of such an
injury too small to be seriously weighed as against the benefits
coming from the discreet and proper use of the preventive, and that
not only the medical profession and the people generally have for a
long time entertained these opinions, but legislatures and courts
have acted upon them with general unanimity. If the defendant had
been permitted to introduce such expert testimony as he had in
support of these several propositions, it could not have changed
the result. It would not have justified the court in holding that
the legislature had transcended its power in enacting this statute
on their judgment of what the welfare of the people demands." Commonwealth v. Jacobson, 183 Massachusetts 242.

															While the mere rejection of defendant's offers of proof does not
strictly present a federal question, we may properly regard the
exclusion of evidence upon the ground of its incompetency or
immateriality under the statute as showing what, in the opinion of
the state court, is the scope and meaning of the statute. Taking
the above observations of the state court as indicating the scope
of the statute -- and such is our duty, Leffingwell v.
Warren , 2 Black 599, 67 U. S. 603 , Morley v. Lake Shore Railway Co., 146 U.
S. 162 , 146 U. S. 167 , Tullis v. L. E. & W. R.R. Co., 175 U.
S. 348 , W. W. Cargill Co. v. Minnesota, 180 U. S. 452 , 180 U. S. 466 -- we assume for the purposes of the present inquiry that its
provisions require, at least as a general rule, that adults not
under guardianship and remaining within the limits of the city of
Cambridge must submit to the regulation adopted by the Board of
Health. Is the statute, so construed, therefore, inconsistent with
the liberty which the Constitution of the United States secures to
every person against deprivation by the State?

															The authority of the State to enact this statute is to be Page 197 U. S. 25 referred to what is commonly called the police power -- a power
which the State did not surrender when becoming a member of the
Union under the Constitution. Although this court has refrained
from any attempt to define the limits of that power, yet it has
distinctly recognized the authority of a State to enact quarantine
laws and "health laws of every description;" indeed, all laws that
relate to matters completely within its territory and which do not,
by their necessary operation, affect the people of other States.
According to settled principles, the police power of a State must
be held to embrace, at least, such reasonable regulations
established directly by legislative enactment as will protect the
public health and the public safety. Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 203 ; Railroad Company v. Husen, 95 U. S.
465 , 95 U. S. 470 ; Beer Company v. Massachusetts, 97 U. S.
25 ; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 , 115 U. S. 661 ; Lawton v. Steele, 152 U. S. 133 . It
is equally true that the State may invest local bodies called into
existence for purposes of local administration with authority in
some appropriate way to safeguard the public health and the public
safety. The mode or manner in which those results are to be
accomplished is within the discretion of the State, subject, of
course, so far as Federal power is concerned, only to the condition
that no rule prescribed by a State, nor any regulation adopted by a
local governmental agency acting under the sanction of state
legislation, shall contravene the Constitution of the United States
or infringe any right granted or secured by that instrument. A
local enactment or regulation, even if based on the acknowledged
police powers of a State, must always yield in case of conflict
with the exercise by the General Government of any power it
possesses under the Constitution, or with any right which that
instrument gives or secures. Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 210 ; Sinnot v.
Davenport , 22 How. 227, 63 U. S. 243 ; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613 , 169 U. S.
626 .

															We come, then, to inquire whether any right given or secured by
the Constitution is invaded by the statute as interpreted Page 197 U. S. 26 by the state court. The defendant insists that his liberty is
invaded when the State subjects him to fine or imprisonment for
neglecting or refusing to submit to vaccination; that a compulsory
vaccination law is unreasonable, arbitrary and oppressive, and,
therefore, hostile to the inherent right of every freeman to care
for his own body and health in such way as to him seems best, and
that the execution of such a law against one who objects to
vaccination, no matter for what reason, is nothing short of an
assault upon his person. But the liberty secured by the
Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person to
be, at all times and in all circumstances, wholly freed from
restraint. There are manifold restraints to which every person is
necessarily subject for the common good. On any other basis,
organized society could not exist with safety to its members.
Society based on the rule that each one is a law unto himself would
soon be confronted with disorder and anarchy. Real liberty for all
could not exist under the operation of a principle which recognizes
the right of each individual person to use his own, whether in
respect of his person or his property, regardless of the injury
that may be done to others. This court has more than once
recognized it as a fundamental principle that

															"persons and property are subjected to all kinds of restraints
and burdens, in order to secure the general comfort, health, and
prosperity of the State, of the perfect right of the legislature to
do which no question ever was, or upon acknowledged general
principles ever can be, made so far as natural persons are
concerned." Railroad Co. v. Husen, 95 U. S.
465 , 95 U. S. 471 ; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613 , 169 U. S. 628 , 169 U. S. 629 ; Thorpe v. Rutland & Burlington R.R., 27 Vermont 140,
148. In Crowley v. Christensen, 137 U. S.
86 , 137 U. S. 89 , we
said:

															"The possession and enjoyment of all rights are subject to such
reasonable conditions as may be deemed by the governing authority
of the country essential to the safety, health, peace, good order
and morals of the community. Even liberty Page 197 U. S. 27 itself, the greatest of all rights, is not unrestricted license
to act according to one's own will. It is only freedom from
restraint under conditions essential to the equal enjoyment of the
same right by others. It is then liberty regulated by law."

															In the constitution of Massachusetts adopted in 1780, it was
laid down as a fundamental principle of the social compact that the
whole people covenants with each citizen, and each citizen with the
whole people, that all shall be governed by certain laws for "the
common good," and that government is instituted

															"for the common good, for the protection, safety, prosperity and
happiness of the people, and not for the profit, honor or private
interests of anyone man, family or class of men."

															The good and welfare of the Commonwealth, of which the
legislature is primarily the judge, is the basis on which the
police power rests in Massachusetts. Commonwealth v.
Alger, 7 Cush. 53, 84.

															Applying these principles to the present case, it is to be
observed that the legislature of Massachusetts required the
inhabitants of a city or town to be vaccinated only when, in the
opinion of the Board of Health, that was necessary for the public
health or the public safety. The authority to determine for all
what ought to be done in such an emergency must have been lodged
somewhere or in some body, and surely it was appropriate for the
legislature to refer that question, in the first instance, to a
Board of Health, composed of persons residing in the locality
affected and appointed, presumably, because of their fitness to
determine such questions. To invest such a body with authority over
such matters was not an unusual nor an unreasonable or arbitrary
requirement. Upon the principle of self-defense, of paramount
necessity, a community has the right to protect itself against an
epidemic of disease which threatens the safety of its members. It
is to be observed that, when the regulation in question was
adopted, smallpox, according to the recitals in the regulation
adopted by the Board of Health, was prevalent to some extent in the
city of Cambridge, and the disease was increasing. If such was Page 197 U. S. 28 the situation -- and nothing is asserted or appears in the
record to the contrary -- if we are to attach any value whatever to
the knowledge which, it is safe to affirm, is common to all
civilized peoples touching smallpox and the methods most usually
employed to eradicate that disease, it cannot be adjudged that the
present regulation of the Board of Health was not necessary in
order to protect the public health and secure the public safety.
Smallpox being prevalent and increasing at Cambridge, the court
would usurp the functions of another branch of government if it
adjudged, as matter of law, that the mode adopted under the
sanction of the State, to protect the people at large was arbitrary
and not justified by the necessities of the case. We say
necessities of the case because it might be that an acknowledged
power of a local community to protect itself against an epidemic
threatening the safety of all, might be exercised in particular
circumstances and in reference to particular persons in such an
arbitrary, unreasonable manner, or might go so far beyond what was
reasonably required for the safety of the public, as to authorize
or compel the courts to interfere for the protection of such
persons. Wisconsin &c. R.R. Co. v. Jacobson, 179 U. S. 27 , 179 U. S. 301 ;
1 Dillon Mun. Corp., 4th ed.,§§ 319 to 325, and authorities in
notes; Freund's Police Power, § 63 et seq. In Railroad
Company v. Husen, 95 U. S. 465 , 95 U. S.
471 -473, this court recognized the right of a State to
pass sanitary laws, laws for the protection of life, liberty, heath
or property within its limits, laws to prevent persons and animals
suffering under contagious or infectious diseases, or convicts,
from coming within its borders. But as the laws there involved went
beyond the necessity of the case and under the guise of exerting a
police power invaded the domain of Federal authority, and violated
rights secured by the Constitution, this court deemed it to be its
duty to hold such laws invalid. If the mode adopted by the
Commonwealth of Massachusetts for the protection of its local
communities against smallpox proved to be distressing, inconvenient
or objectionable to some -- if nothing more could be reasonably Page 197 U. S. 29 affirmed of the statute in question -- the answer is that it was
the duty of the constituted authorities primarily to keep in view
the welfare, comfort and safety of the many, and not permit the
interests of the many to be subordinated to the wishes or
convenience of the few. There is, of course, a sphere within which
the individual may assert the supremacy of his own will and
rightfully dispute the authority of any human government,
especially of any free government existing under a written
constitution, to interfere with the exercise of that will. But it
is equally true that, in every well ordered society charged with
the duty of conserving the safety of its members the rights of the
individual in respect of his liberty may at times, under the
pressure of great dangers, be subjected to such restraint, to be
enforced by reasonable regulations, as the safety of the general
public may demand. An American citizen, arriving at an American
port on a vessel in which, during the voyage, there had been cases
of yellow fever or Asiatic cholera, although apparently free from
disease himself, may yet, in some circumstances, be held in
quarantine against his will on board of such vessel or in a
quarantine station until it be ascertained by inspection, conducted
with due diligence, that the danger of the spread of the disease
among the community at large has disappeared. The liberty secured
by the Fourteenth Amendment, this court has said, consists, in
part, in the right of a person "to live and work where he will," Allgeyer v. Louisiana, 165 U. S. 578 , and
yet he may be compelled, by force if need be, against his will and
without regard to his personal wishes or his pecuniary interests,
or even his religious or political convictions, to take his place
in the ranks of the army of his country and risk the chance of
being shot down in its defense. It is not, therefore, true that the
power of the public to guard itself against imminent danger depends
in every case involving the control of one's body upon his
willingness to submit to reasonable regulations established by the
constituted authorities, under the Page 197 U. S. 30 sanction of the State, for the purpose of protecting the public
collectively against such danger.

															It is said, however, that the statute, as interpreted by the
state court, although making an exception in favor of children
certified by a registered physician to be unfit subjects for
vaccination, makes no exception in the case of adults in like
condition. But this cannot be deemed a denial of the equal
protection of the laws to adults, for the statute is applicable
equally to all in like condition, and there are obviously reasons
why regulations may be appropriate for adults which could not be
safely applied to persons of tender years.

															Looking at the propositions embodied in the defendant's rejected
offers of proof, it is clear that they are more formidable by their
number than by their inherent value. Those offers, in the main,
seem to have had no purpose except to state the general theory of
those of the medical profession who attach little or no value to
vaccination as a means of preventing the spread of smallpox, or who
think that vaccination causes other diseases of the body. What
everybody knows, the court must know, and therefore the state court
judicially knew, as this court knows, that an opposite theory
accords with the common belief and is maintained by high medical
authority. We must assume that, when the statute in question was
passed, the legislature of Massachusetts was not unaware of these
opposing theories, and was compelled, of necessity, to choose
between them. It was not compelled to commit a matter involving the
public health and safety to the final decision of a court or jury.
It is no part of the function of a court or a jury to determine
which one of two modes was likely to be the most effective for the
protection of the public against disease. That was for the
legislative department to determine in the light of all the
information it had or could obtain. It could not properly abdicate
its function to guard the public health and safety. The state
legislature proceeded upon the theory which recognized vaccination
as at least an effective, if not the best, known way in which to
meet and suppress the Page 197 U. S. 31 evils of a smallpox epidemic that imperiled an entire
population. Upon what sound principles as to the relations existing
between the different departments of government can the court
review this action of the legislature? If there is any such power
in the judiciary to review legislative action in respect of a
matter affecting the general welfare, it can only be when that
which the legislature has done comes within the rule that,

															"if a statute purporting to have been enacted to protect the
public health, the public morals, or the public safety has no real
or substantial relation to those objects, or is, beyond all
question, a plain, palpable invasion of rights secured by the
fundamental law, it is the duty of the courts to so adjudge, and
thereby give effect to the Constitution." Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 ; Minnesota v. Barber, 136 U. S. 313 , 136 U. S. 320 ; Atkin v. Kansas, 191 U. S. 207 , 191 U. S.
223 .

															Whatever may be thought of the expediency of this statute, it
cannot be affirmed to be, beyond question, in palpable conflict
with the Constitution. Nor, in view of the methods employed to
stamp out the disease of smallpox, can anyone confidently assert
that the means prescribed by the State to that end has no real or
substantial relation to the protection of the public health and the
public safety. Such an assertion would not be consistent with the
experience of this and other countries whose authorities have dealt
with the disease of smallpox. * And the principle
of vaccination as a means to Page 197 U. S. 32 prevent the spread of smallpox has been enforced in many States
by statutes making the vaccination of children a condition of their
right to enter or remain in public schools. Blue v. Beach, 155 Indiana 121; Morris v. City of Columbus, 102 Page 197 U. S. 33 Georgia 792; State v. Hay, 126 N.Car. 999; Abeel v.
Clark, 84 California 226; Bissell v. Davidson, 65
Connecticut 18; Hazen v. Strong, 2 Vermont 427; Duffield v. Williamsport School District, 162 Pa.St.
476. Page 197 U. S. 34 The latest case upon the subject of which we are aware is Viemeister v. White, President &c., decided very
recently by the Court of Appeals of New York, and the opinion in
which has not yet appeared in the regular reports. That case
involved the validity of a statute excluding from the public
schools all children who had not been vaccinated. One contention
was that the statute and the regulation adopted in exercise of its
provisions was inconsistent with the rights, privileges and
liberties of the citizen. The contention was overruled, the court
saying, among other things:

															"Smallpox is known of all to be a dangerous and contagious
disease. If vaccination strongly tends to prevent the transmission
or spread of this disease, it logically follows that children may
be refused admission to the public schools until they have been
vaccinated. The appellant claims that vaccination does not tend to
prevent smallpox, but tends to bring about other diseases, and that
it does much harm, with no good."

															"It must be conceded that some laymen, both learned and
unlearned, and some physicians of great skill and repute, do not
believe that vaccination is a preventive of smallpox. The common
belief, however, is that it has a decided tendency to prevent the
spread of this fearful disease and to render it less dangerous to
those who contract it. While not accepted by all, it is accepted by
the mass of the people, as well as by most members of the medical
profession. It has been general in our State and in most civilized
nations for generations. It is Page 197 U. S. 35 generally accepted in theory and generally applied in practice,
both by the voluntary action of the people and in obedience to the
command of law. Nearly every State of the Union has statutes to
encourage, or directly or indirectly to require, vaccination, and
this is true of most nations of Europe."

															"A common belief, like common knowledge, does not require
evidence to establish its existence, but may be acted upon without
proof by the legislature and the courts."

															"The fact that the belief is not universal is not controlling,
for there is scarcely any belief that is accepted by everyone. The
possibility that the belief may be wrong, and that science may yet
show it to be wrong, is not conclusive, for the legislature has the
right to pass laws which, according to the common belief of the
people, are adapted to prevent the spread of contagious diseases.
In a free country, where the government is by the people, through
their chosen representatives, practical legislation admits of no
other standard of action; for what the people believe is for the
common welfare must be accepted as tending to promote the common
welfare, whether it does, in fact, or not. Any other basis would
conflict with the spirit of the Constitution, and would sanction
measures opposed to a republican form of government. While we do
not decide and cannot decide that vaccination is a preventive of
smallpox, we take judicial notice of the fact that this is the
common belief of the people of the State, and, with this fact as a
foundation, we hold that the statute in question is a health law,
enacted in a reasonable and proper exercise of the police
power."

															72 N.E.Rep. 97.

															Since, then, vaccination, as a means of protecting a community
against smallpox, finds strong support in the experience of this
and other countries, no court, much less a jury, is justified in
disregarding the action of the legislature simply because, in its
or their opinion, that particular method was -- perhaps or possibly
-- not the best either for children or adults.

															Did the offers of proof made by the defendant present a case
which entitled him, while remaining in Cambridge, to Page 197 U. S. 36 claim exemption from the operation of the statute and of the
regulation adopted by the Board of Health? We have already said
that his rejected offers, in the main, only set forth the theory of
those who had no faith in vaccination as a means of preventing the
spread of smallpox, or who thought that vaccination, without
benefiting the public, put in peril the health of the person
vaccinated. But there were some offers which it is contended
embodied distinct facts that might properly have been considered.
Let us see how this is.

															The defendant offered to prove that vaccination " quite often"
caused serious and permanent injury to the health of the person
vaccinated; that the operation "occasionally" resulted in death;
that it was "impossible" to tell "in any particular case" what the
results of vaccination would be or whether it would injure the
health or result in death; that "quite often," one's blood is in a
certain condition of impurity when it is not prudent or safe to
vaccinate him; that there is no practical test by which to
determine "with any degree of certainty" whether one's blood is in
such condition of impurity as to render vaccination necessarily
unsafe or dangerous; that vaccine matter is "quite often" impure
and dangerous to be used, but whether impure or not cannot be
ascertained by any known practical test; that the defendant refused
to submit to vaccination for the reason that he had, "when a
child," been caused great and extreme suffering for a long period
by a disease produced by vaccination, and that he had witnessed a
similar result of vaccination not only in the case of his son, but
in the cases of others.

															These offers, in effect, invited the court and jury to go over
the whole ground gone over by the legislature when it enacted the
statute in question. The legislature assumed that some children, by
reason of their condition at the time, might not be fit subjects of
vaccination, and it is suggested -- and we will not say without
reason -- that such is the case with some adults. But the defendant
did not offer to prove that, by reason of his then condition, he
was, in fact, not a fit subject of vaccination Page 197 U. S. 37 at the time he was informed of the requirement of the regulation
adopted by the Board of Health. It is entirely consistent with his
offer of proof that, after reaching full age, he had become, so far
as medical skill could discover, and, when informed of the
regulation of the Board of Health, was, a fit subject of
vaccination, and that the vaccine matter to be used in his case was
such as any medical practitioner of good standing would regard as
proper to be used. The matured opinions of medical men everywhere,
and the experience of mankind, as all must know, negative the
suggestion that it is not possible in any case to determine whether
vaccination is safe. Was defendant exempted from the operation of
the statute simply because of his dread of the same evil results
experienced by him when a child and had observed in the cases of
his son and other children? Could he reasonably claim such an
exemption because, "quite often" or "occasionally," injury had
resulted from vaccination, or because it was impossible, in the
opinion of some, by any practical test, to determine with absolute
certainty whether a particular person could be safely
vaccinated?

															It seems to the court that an affirmative answer to these
questions would practically strip the legislative department of its
function to care for the public health and the public safety when
endangered by epidemics of disease. Such an answer would mean that
compulsory vaccination could not, in any conceivable case, be
legally enforced in a community, even at the command of the
legislature, however widespread the epidemic of smallpox, and
however deep and universal was the belief of the community and of
its medical advisers, that a system of general vaccination was
vital to the safety of all.

															We are not prepared to hold that a minority, residing or
remaining in any city or town where smallpox is prevalent, and
enjoying the general protection afforded by an organized local
government, may thus defy the will of its constituted authorities,
acting in good faith for all, under the legislative sanction of the
State. If such be the privilege of a minority, Page 197 U. S. 38 then a like privilege would belong to each individual of the
community, and the spectacle would be presented of the welfare and
safety of an entire population being subordinated to the notions of
a single individual who chooses to remain a part of that
population. We are unwilling to hold it to be an element in the
liberty secured by the Constitution of the United States that one
person, or a minority of persons, residing in any community and
enjoying the benefits of its local government, should have the
power thus to dominate the majority when supported in their action
by the authority of the State. While this court should guard with
firmness every right appertaining to life, liberty or property as
secured to the individual by the Supreme Law of the Land, it is of
the last importance that it should not invade the domain of local
authority except when it is plainly necessary to do so in order to
enforce that law. The safety and the health of the people of
Massachusetts are, in the first instance, for that Commonwealth to
guard and protect. They are matters that do not ordinarily concern
the National Government. So far as they can be reached by any
government, they depend, primarily, upon such action as the State
in its wisdom may take, and we do not perceive that this
legislation has invaded any right secured by the Federal
Constitution.

															Before closing this opinion, we deem it appropriate, in order to
prevent misapprehension as to our views, to observe -- perhaps to
repeat a thought already sufficiently expressed, namely -- that the
police power of a State, whether exercised by the legislature or by
a local body acting under its authority, may be exerted in such
circumstances or by regulations so arbitrary and oppressive in
particular cases as to justify the interference of the courts to
prevent wrong and oppression. Extreme cases can be readily
suggested. Ordinarily such cases are not safe guides in the
administration of the law. It is easy, for instance, to suppose the
case of an adult who is embraced by the mere words of the act, but
yet to subject whom to vaccination in a particular condition of his
health Page 197 U. S. 39 or body, would be cruel and inhuman in the last degree. We are
not to be understood as holding that the statute was intended to be
applied to such a case, or, if it as so intended, that the
judiciary would not be competent to interfere and protect the
health and life of the individual concerned. "All laws," this court
has said,

															"should receive a sensible construction. General terms should be
so limited in their application as not to lead to injustice,
oppression or absurd consequence. It will always, therefore, be
presumed that the legislature intended exceptions to its language
which would avoid results of that character. The reason of the law
in such cases should prevail over its letter." United States v.
Kirby , 7 Wall. 482; Lau Ow Bew v. United
States, 144 U. S. 47 , 144 U. S. 58 .
Until otherwise informed by the highest court of Massachusetts, we
are not inclined to hold that the statute establishes the absolute
rule that an adult must be vaccinated if it be apparent or can be
shown with reasonable certainty that he is not at the time a fit
subject of vaccination or that vaccination, by reason of his then
condition, would seriously impair his health or probably cause his
death. No such case is here presented. It is the case of an adult
who, for aught that appears, was himself in perfect health and a
fit subject of vaccination, and yet, while remaining in the
community, refused to obey the statute and the regulation adopted
in execution of its provisions for the protection of the public
health and the public safety, confessedly endangered by the
presence of a dangerous disease

															We now decide only that the statute covers the present case, and
that nothing clearly appears that would justify this court in
holding it to be unconstitutional and inoperative in its
application to the plaintiff in error.

															The judgment of the court below must be affirmed. It is so ordered. MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent.

															*

															"State supported facilities for vaccination began in England in
1808 with the National Vaccine Establishment. In 1840, vaccination
fees were made payable out of the rates. The first compulsory act
was passed in 1853, the guardians of the poor being entrusted with
the carrying out of the law; in 1854, the public vaccinations under
one year of age were 408,825 as against an average of 180,960 for
several years before. In 1867, a new Act was passed, rather to
remove some technical difficulties than to enlarge the scope of the
former Act, and in 1871, the Act was passed which compelled the
boards of guardians to appoint vaccination officers. The guardians
also appoint a public vaccinator, who must be duly qualified to
practice medicine and whose duty it is to vaccinate (for a fee of
one shilling and sixpence) any child resident within his district
brought to him for that purpose, to examine the same a week after,
to give a certificate, and to certify to the vaccination officer
the fact of vaccination or of insusceptibility. . . . Vaccination
was made compulsory in Bavaria in 1807, and subsequently in the
following countries: Denmark (1810), Sweden (1814), Wurtemburg,
Hesse, and other German states (1818), Prussia (1835), Roumania
(1874), Hungary (1876), and Servia (1881). It is compulsory by
cantonal law in ten out of the twenty-two Swiss cantons; an attempt
to pass a federal compulsory law was defeated by a plebiscite in
1881. In the following countries, there is no compulsory law, but
Government facilities and compulsion on various classes more or
less directly under Government control, such as soldiers, state
employes, apprentices, school pupils, etc.: France, Italy, Spain,
Portugal, Belgium, Norway, Austria, Turkey. . . . Vaccination has
been compulsory in South Australia since 1872, in Victoria since
1874, and in Western Australia since 1878. In Tasmania, a
compulsory Act was passed in 1882. In New South Wales, there is no
compulsion, but free facilities for vaccination. Compulsion was
adopted at Calcutta in 1880, and since then at eighty other towns
of Bengal, at Madras in 1884, and at Bombay and elsewhere in the
presidency a few years earlier. Revaccination was made compulsory
in Denmark in 1871, and in Roumania in 1874; in Holland it was
enacted for all school pupils in 1872. The various laws and
administrative orders which had been for many years in force as to
vaccination and revaccination in the several German states were
consolidated in an imperial statute of 1874."

															24 Encyclopaedia Britannica (1894), Vaccination.

															"In 1857, the British Parliament received answers from 552
physicians to questions which were asked them in reference to the
utility of vaccination, and only two of these spoke against it.
Nothing proves this utility more clearly than the statistics
obtained. Especially instructive are those which Flinzer compiled
respecting the epidemic in Chemitz which prevailed in 1870-71. At
this time in the town, there were 64,255 inhabitants, of whom
53,891, or 83.87 percent., were vaccinated, 5,712, or 8.89 percent.
were unvaccinated, and 4,652, or 7.24 percent., had had the
smallpox before. Of those vaccinated, 953, or 1.77 percent., became
affected with smallpox, and of the uninocculated, 2,643, or 46.3
percent., had the disease. In the vaccinated, the mortality from
the disease was O.73 percent., and in the unprotected it was 9.16
percent. In general, the danger of infection is six times as great,
and the mortality 68 times as great, in the unvaccinated as in the
vaccinated. Statistics derived from the civil population are in
general not so instructive as those derived from armies, where
vaccination is usually more carefully performed and where
statistics can be more accurately collected. During the
Franco-German war (1870-71) there was in France a widespread
epidemic of smallpox, but the German army lost during the campaign
only 450 cases, or 58 men to the 100,000; in the French army,
however, where vaccination was not carefully carried out, the
number of deaths from smallpox was 23,400."

															8 Johnson's Universal Cyclopaedia (1897), Vaccination.

															"The degree of protection afforded by vaccination thus became a
question of great interest. Its extreme value was easily
demonstrated by statistical researches. In England, in the last
half of the eighteenth century, out of every 1,000 deaths, 96
occurred from smallpox; in the first half of the present century,
out of every 1,000 deaths, but 35 were caused by that disease. The
amount of mortality in a country by smallpox seems to bear a fixed
relation to the extent to which vaccination is carried out. In all
England and Wales, for some years previous to 1853, the
proportional mortality by smallpox was 21.9 to 1,000 deaths from
causes; in London, it was but 16 to 1,000; in Ireland, where
vaccination was much less general, it was 49 to 1,000, while in
Connaught it was 60 to 1,000. On the other hand, in a number of
European countries where vaccination was more or less compulsory,
the proportionate number of deaths from smallpox about the same
time varied from 2 per 1,000 of causes in Bohemia, Lombardy,
Venice, and Sweden, to 8.33 per 1,000 in Saxony. Although in many
instances persons who had been vaccinated were attacked with
smallpox in a more or less modified form, it was noticed that the
persons so attacked had been commonly vaccinated many years
previously."

															16 American Cyclopedia, Vaccination (1883).

															"'Dr. Buchanan, the medical officer of the London Government
Board, reported [1881] as the result of statistics that the
smallpox death rate among adult persons vaccinated was 90 to a
million, whereas, among those unvaccinated, it was 3,350 to a
million; whereas among vaccinated children under 5 years of age, 42
per million; whereas among unvaccinated children of the same age it
was 5,950 per million.' Hardway's Essentials of Vaccination (1881).
The same author reports that among other conclusions reached by the
Academie de Medicine of France, was one that, 'without vaccination,
hygienic measures (isolation, disinfection, etc.) are of themselves
insufficient for preservation from smallpox.'" Ib. "The Belgian Academy of Medicine appointed a committee to make
an exhaustive examination of the whole subject, and among the
conclusions reported by them were:"

															"1. Without vaccination, hygienic measures and means, whether
public or private, are powerless in preserving mankind from
smallpox. . . . 3. Vaccination is always an inoffensive operation
when practiced with proper care on healthy subjects. . . . 4. It is
highly desirable, in the interests of the health and lives of our
countrymen, that vaccination should be rendered compulsory."

															Edwards' Vaccination (1882).

															The English Royal Commission, appointed with Lord Herschell, the
Lord Chancellor of England, at its head, to inquire, among other
things, as to the effect of vaccination in reducing the prevalence
of, and mortality from, smallpox, reported, after several years of
investigation:

															"We think that it diminishes the liability to be attacked by the
disease; that it modifies the character of the disease and renders
it less fatal, of a milder and less severe type; that the
protection it affords against attacks of the disease is greatest
during the years immediately succeeding the operation of
vaccination."

Summary: The case of Jacobson v. Massachusetts (1905) centered on the constitutionality of a state's police power to enact and enforce public health regulations, specifically a compulsory vaccination law. The United States Supreme Court upheld the state's authority to implement such measures to protect public health and safety, provided they do not infringe on federal powers or violate individual rights secured by the Constitution. The Court emphasized that the determination of the best mode for disease prevention is a legislative responsibility, and any regulatory measures must apply equally to all individuals in similar conditions. The decision set a precedent for the government's ability to enact reasonable regulations within its territory to safeguard public health and safety, as long as they do not arbitrarily or oppressively infringe on individual liberties.