U.S. 11; 25 S. Ct. 358; 49 L. Ed. 2d 643

December 6, 2021

February 20, 2022

Error to the Supreme Court
of the State of




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.

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

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.

police 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.

a local regulation, even if based on the acknowledged 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.

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

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
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.

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.

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.

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

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.”

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

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 all the inhabitants of the city who have not been
successfully vaccinated since March, 1, 1897, be vaccinated or revaccinated.”

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.

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 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.

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.

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

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 States, and tended to subvert and defeat
the purposes of the Constitution as declared in its Preamble;

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;

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

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.

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.



, 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

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, 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 «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
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 «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,
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, 603,
Morley v. Lake Shore Railway Co.,
146 U.S. 162, 167,
Tullis v. L.E. & W.R.R. Co., 175 U.S.
348, W.W. Cargill Co. v. Minnesota, 180 U.S. 452, 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 «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, 203; Railroad
Company v. Husen,
95 U.S. 465, 470;
Beer Company v. Massachusetts, 97
U.S. 25; New Orleans Gas Co. v. Louisiana Light Co.,
115 U.S. 650, 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 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, or with any right which that instrument
gives or secures.  Gibbons v.
Ogden, 9 Wheat. 1, 210; Sinnot
Davenport, 22 How. 227, 243; Missouri, Kansas & Texas Ry. Co. v. Haber, 169
U.S. 613, 626.

We come, then, to inquire whether any right given,
or secured by the Constitution, is invaded by the statute as interpreted
«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

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, 471; Missouri,
Kansas & Texas Ry. Co. v. Haber,
169 U.S. 613, 628, 629; Thorpe
v. Rutland & Burlington R.R.,
27 Vermont, 140, 148. In Crowley
v. Christensen,
U.S. 86, 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 «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 any one 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 «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
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. 287, 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, 471-473, this
court recognized the right of a State to pass sanitary laws, laws for
the protection of life, liberty, health 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 when 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 «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 «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
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 «31» evils of a smallpox
epidemic that imperilled 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, 661;
Minnesota v. Barber,  136 U.S. 313, 320;
Atkin v.
Kansas,  191 U.S. 207, 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.[1]
And the principle of vaccination as a means to «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 Georgia, 792;
«33» State v. Hay, 126 N. Car. 999; Abeel v. Clark, 84 California, 226, Bissell
v. Davidson
, 65 Connecticut, 183; Hazen
v. Strong
, 2 Vermont, 427;
Duffield v. Williamsport School District,
162 Pa. St. 476.

«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 «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

“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 «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 case
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
«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 this 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 «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 by 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 «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 was
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, 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.


and MR.




[1] “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 Swis 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 Encyclopoedia Britannica (1894), Vaccination.

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 per cent., were vaccinated,
5,712, or 8.89 per cent. were unvaccinated, and 4,652, or 7.24 per
cent., had had the smallpox before. Of those vaccinated 953, or 1.77
per cent., became affected with smallpox, and of the uninocculated
2,643, or 46.3 per cent., had the disease. In the vaccinated the mortality
from the disease was 0.73 per cent., and in the unprotected it was
9.16 per cent. 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
Cyclopoedia (1897), Vaccination.

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 or 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 1/2 per million; whereas among unvaccinated
children of the same age it was 5,950 per million.’ Hardway’s Essentials
of Vaccination (1882). 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.

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

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.”

**** END OF CASE ****