Record and brief — William C. Pervear, Plaintiff in Error, vs. The Commonwealth of Massachusetts

SUPREME COURT OF THE UNITED STATES.

| No. 377.

WILLIAM C. PERVEAR, PLAINTIFF IN ERROR,

VS.

THE COMMONWEALTH OF MASSACHUSET TS.

IN ERROR TO THE SUPERIOR COURT OF THE COMMONWEALTH OF MASSACH U-

Original. Print.

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FPERVEAR VS. COMMONWEALTH OF MASSACHUSETTS.

Urra States’orF AMERICA, 88:

1 The President of the United States to the honorable the judges

of the superior court of the Commonwealth of Massachusetts,

greeting: |

Because in the record and proceedings, as also in the rendition of

the judgment of a plea which is in the said superior court before you,

or some of you, being the highest court of law or equity of the said

State in which a decision could be had in the suit between the Com-

monwealth of Massachusetts, plaintiff, and William C. Pervear, de-

fendant, wherein was drawn in question the validity of a treaty or

statute of, or an authority exercised under, the United States, and

the decision was against their validity, or wherein was drawn in ques-

tion the validity of a statate of, or authority exercised under, said

State on the ground of their being repugnant to the Constitution,

treaties, or laws of the United States, and the decision was in favor

of such their validity; or wherein was drawn in question the con-

struction of a clause of the Constitution, or of a treaty, or statute of,

or commission held under, the United States, and the decision was:

against the title, right, privilege, or exemption specially set up or

claimed under snch clause of the said Constitution, treaty, statute, or

commission, a manifest error hath happened, to the great damage of

the said William C. Pervear, as by his complaint appears: We, being:

willing that error, if any hath been, should be duly corrected, and

fall and speedy justice done to the parties aforesaid in this behalf, do.

command you, if judgment be therein given, that then, under your

seal, distinctly and openly, you send the record and proceedings

aforesaid, with all things concerning the same, to the Supreme Court

of the United States, together with this writ, so that yoa have the

same at Washingtun on the first Monday of December next, in the

said Supreme Court to be then and there held, that the record and pro-

ceedings aforesaid being inspected, the said Supreme Court may cause

further to be done therein to correct that error what of right and.

— to the laws and customs of the United States should be:

one.

Witness the honorable Salmon P. Chase; Chief Justice of the said:

Supreme Court, this first Monday of December, in the year of our

Lord one thousand eight hundred and sixty-five.

Writ issued Nov. 3d, 1866.

JOHN G. STETSON,

Clerk of the Circuit Court of the United States.

Allowed by NATHAN CLIFFORD,

Associate us. Sup. Court of the U. &.

2 CirneuiT Court or THE UNITED StatTEs,,

Massachusetis: District, 38

And now here the judges of the circuit court of the United States.

and for the said district make return of this writ by annexing:

hereto, and sending herewith, under the seal of the circuit court,, a

2 PERVEAR VS. COMMONWEALTH OF MASSACHUSETTS.

true and attested copy of the record and process in the said suit within

mentioned and of all proceedings therein.

In testimony whereof I, Edwin T. Nash, clerk pro tem. of said cir-

cuit court of the U. S. within and for the district of Massachusetts,

have hereunto set my hand and the seal of said court this fourth day

of December, A. D. 1866.

[SEAL. ] EDWIN T. NASH, Clerk pro tem.

3 Know all men by these presents, that we, Thomas J. Pervear,

of Stoneham, and Thomas Salmon, of Woburn, in the State of

Massachusetts, are held and firmly bound unto the Commonwealth of

Massachusetts in the full and just sum of five hundred dollars, to be

paid to the said Commonwealth of Massachusetts, its certain attorney,

to which payment, well and truly to be made, we bind ourselves, our

heirs, executors, and administrators, jointly and severally, by these

presents. Sealed with our seals, and dated this third day of November,

in the year of our Lord one thousand eight hundred and sixty-six.

Whereas, lately, at a superior court of the Commonwealth of Massa-

chusetts, in a suit depending in said court between the Common-

wealth of Massachusetts, plaintiff, and William C. Pervear, defend-

ant, judgment was rendered against the said William C. Pervear,

and the said William C. Pervear having procured a writ of error and

filed a copy thereof in the clerk’s office of the said court to reverse

the judgment in the aforesaid suit, and a citation directed to the said

Commonwealth of Massachusetts, citing and‘admonishing to be and

appear at a Supreme Court of the United States to be holden at

Washington on the first Monday of December next: Now the condi-

tion of the above obligation is such, that if the said William C. Per-

vear shall prosecute his said suit to effect, and answer all damages

and costs if he fails to make his plea good, then the above obliga-

tion to be null and void; else to remain in full force and virtue.

THOS. J. PERVEAR. [L. 8.]

THOS. SALMON. IL. 8.]

Signed, sealed and delivered in presence of—

Joun G. STETSON,

Approved: NATHAN CLIFFORD,

, Associate Jus. Sup. Court of the U. .

A true copy of the bond taken by the judge at the time of allow-

ing the writ of error named in said bond, which bond is on file in the

office of the clerk of the circuit court of the United States for the

first circuit and district of Massachusetts.

Attest: JOHN G. STETSON,

Clerk U.S. OC. C., Mass. Dist...

4 COMMONWEALTH OF Massacuusetts, Middlesex, to wit:

At the superior court begun and holden at Lowell, within and for

the county of Middlesex, on the third Monday of October, in the year

of our Lord one thousand eight hundred and sixty-six, the jurors for

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the Commonwealth of Massachusetts on their oath present, that Wil-

liam C. Pervear, late resident of Woburn, in the said county of Mid-

dlesex, at said Woburn, on the first day of June, in the year of our

Lord one thousand eight hundred and sixty-six, and on divers

other days and times between that day and the day of finding of this

indictment, without then and on said other days and times there hav-

ing any license, appointment, or authority first duly had and obtained

according to law, to keep intoxicating liquors for sale, and without

then and on said other days and times there having any license, ap-

pointment, or authority first duly had and obtained, according to law,

to sell intoxicating liquors, did then and on said other days and times,

at Woburn, aforesaid, keep and maintain a certain common nuisance,

to wit, a tenement in said Woburn, then and on said other days and

times there used for the illegal sale and illegal keeping of intoxicat-

ing liquors, to the great injury and common nuisance of all the peace-

able citizens of said Commonwealth there residing, inhabiting and

passing, against the peace and dignity of said Commonwealth, and

contrary to the form of the statute in such case made and provided.

A true bill.

HENRY C. ROLFE,

Foreman of the Grand Jury.

I. S. MORSE, i

District Attorney:

5 COMMONWEALTH OF MassACHUSETrs, Middlesex, ss:

Superior court, criminal session, October term, 1866.

COMMONWEALTH OF 1

vs.

WILLIAM C. PERvVEAR.

And the defendant comes and defends the wrong and injury when,

&c., where, &c., and says that the said Commonwealth ought to be

barred from having and maintaining their said indictment in this case,

because he says that he had at the time and times mentioned in said

indictment, and at all other times, full, complet :

icense fi i es of America to do all the acts com-

plained of in said indictment, which license was granted him under

and by virtue of an act of Congress, and for which he paid, according to

the laws of the United States, into the treasury of the United States

the full sum of twenty-five dollars, and that he hgg_actnally-paid in

money a,tariff or rey dut upon the same spirituous and

intoxicating liquors to the government of the United States, for the

keeping and selling of which he is complained of in said indictment,

which duty, tariff, or tax was paid upon the sai iri ip-

to ing li ame pi s,and in the same form and

quantity in which he sold the same, as charged in said indictment,

and in no other form, or package, or quantity, and that he has done

no other act, or sold any other spirituous or intoxicating liquors than

such as he has paid a duty or tax upon to the government of the

United States as aforesaid; all of which he is ready to verify.

PERVEAR VS. COMMONWEALTE OF MASSACHUSETTS.

And for further plea in his behalf, the said defendant says that the-

Commonwealth ought to be barred from having and maintaining their

said indictment in this case, because he says that by the Constitution

of the United States, and also the constitution of this Common-

wealth, it is provided that e ball ee Tequired, nor

excessive fines imposed,nor crue and unusual punis ments int licted ;

and t sts of the legislaturé™ upon which the indictment is

founded imposes fine and punishment for ap.act which is not wrong

in itself, and which fine and punishment are excessive,.cruel, and

unusual, and the said act of the legislature is unconstitutional and

void; all of which he is ready to verify.

Wherefore he prays that the said Commonwealth from having and

maintaining their said indictment in this case may be barred, and.

that he may have judgment, and be hence discharged, &c.

WILLIAM C. PERVEAR.

By his attorneys, RICHARDSON & NORRIS.

Filed Oct. 23d, 1866.

Demurrer to plea in bar.

6 CoMMONWEALTH OF MASSACHUSETTS, Jfiddlesex, ss:

Superior court for the transaction of criminal business, Oct’r term,

1866.

COMMONWEALTH, by indietment,

vs. No

WILLIAM C. PERVEAR.

And now comes Isaac S. Morse, as he is district attorney for the

northern district, and says that the Commonwealth. aforesaid ought

not to be barred from having and maintaining the said indictment

against the said Pervear, defendant, as aforesaid, by reason of any-

thing in the plea of said defendant alleged; beeause he says that the

said plea and the matters therein contained are not sufficient in law

to bar the Commonwealth from further prosecuting the said indict-

ment against the said defendant. And the said district attorney,

among other causes of demurrer, assigns the following, to wit, that

said plea is double, argumentative, and otherwise informal and insuffi-

cient; all of which the said district attorney is ready to verify.

Wherefore, for want of sufficient plea in this behalf, the said district

attorney prays for judgment for the Commonwealth, and that the said.

defendant may plead over to the said indictment..

| I. S. MORSE,

District Attorney.

Aud the defendant joms in demurrer.

By his attorney

GEO. SENNOTT.

Filed Oct. 23d, 1866, and sustained and def’t ord’d to plead oven.

PERVEAR VS. COMMONWEALTH OF MASSACHUSETTS.

7 CoMMONWEALTH OF Massacuuserts, Middlesex, ss :

In superior court for criminal business, Lowell.

Cow’ ta, by indictment, |

vs. October term, Nov. 2d, 1866.

WI LIAM C. PERVEAR. j} i

This was an indictment charging def't with keeping and maintain-

ing a tenement in this county for the illegal sale and illegal keeping

for sale of spirituous and intoxicating liquors, without license. or

authority therefor. :

To the indictment defendant filed the special plea, in bar, annexed.

To said plea the Com’ th, by its att’ y, demurred, and def’ t joined in de-

murrer; the court then overruled the plea and sustained the

8 demurrer against the objections of the defendant. The de-

fendant was then set at the bar to be tried by a jury, on a plea

of not guilty entered for him by order of court, s’d deft. refusing to

plead other or further plea than special plea so overruled as aforesaid.

And the court instructed the jury that the said special plea was no

defence to the indictment. To all which rulings, overrulings, and

proceedings the defendant respectfully excepted and prays his ex-

ceptions may be allowed.

The indictment, plea, demurrer, and joinder aforesaid are made

part hereof and referred to.

W. M. C. PERVEAR.

By his att' y GEO. SENNOTT.

Filed Nov. 2d, 1866.

Examined and allowed.

MARCUS MORTON,

Judge of Superior Court.

9 COMMONWEALTH OF MassacHusetts, Middlesex, to toit:

To the sheriff of our county of Middlesex, his deputies, and the

keeper of the house of correction in our county of Middlesex,

greeting:

Whereas by the consideration of our superior court, begun and

holden at Lowell, within and for the county of Middlesex, on the

third Monday of October, in the year of our Lord one thousand eight

hundred and sixty-six, William C. Pervear, late resident of Woburn,

in said county, now in custody of our sheriff of our said county of

Middlesex, convict of the crime of keeping a liquor nuisance on the

sixteenth day of the session of the same court, being the second day

of November, in the year of our Lord one thousand eight hundred

and sixty-six, was sentenced by our said court to pay a fine of fifty

dollars to the use of said Commonwealth, and the costs of his prose-

cution taxed at dollars and cents, and

stand committed until this sentence be complied with, and to be con-

fined to hard labor in and within the precincts of said house of cor-

6 PERVEAR VS. COMMONWEALTH OF MASSACHUSETTS,

rection for the term of three months, and to stand committed accord-

ing to said sentence.

We, therefore, command you, the said sheriff and deputies, to

remove tbe said William C. Pervear to said nouse of correction, and

we command you, the keeper of said house of correction, to receive

the said William C. Pervear, and the same William C. Pervear to

imprison and employ in and within the precincts of said house of cor:

rection for and during the term of three months, and until he shall

pay said fine and costs, or be otherwise discharged by due process of

law.

And for so doing, this shall be your warrant. And you are to make

return of this warrant, with your doings therein, to the office of the

clerk of our said court, in Cambridge, as soon as may be.

Witness Charles Allen, esq., at Cambridge, this second day of

November, in the year of our Lord eighteen hundred and sixty-six.

[L. S.] JNO. JAS. SAWYER, 4s t Clerk.

10 COMMONWEALTH OF MassacuHuseEtTts, Middlesex, ss :

Superior court.—Oct’r term, 1866.

In testimony that the foregoing are true copies of all the paper®

filed and of record in the case Commonwealth of Massachusetts vs -

William C. Pervear, I hereto set my hand and affix the seal of said

court, this third day of November, in the year of our Lord one thous-

and eight hundred and siaty-six.

[L. S.] JNO. JAS. SAWYER, Ass’¢ Clerk.

Liquor nuisance.—1, 082.

COMMONWEALTH

VS.

WILLIAM C. PERVEAR.

SuPpERIOR Court, Oci r T., 1866.

6th d. Returned by the grand jury and filed in court.

JNO. JAS. SAWYER, Ass’t Clerk.

Nov. 1, def’t is arraigned and standing mute, the court order the

plea of not guilty entered, and pt. jury is empanelled, to wit:

David M. Balfour, foreman, Asahel G. Bachelder, Thomas Betty,

Jonas C. Butterfield, George 8. Cheeney, Daniel Churchill, John

Clark, 2d, Warren Clark, Thomas D. Coburn, Darius L. Fox, Walcott

Richardson, William H. Richardson.

Nov. Ist.— Verd. guilty.

Nov. 2d.—Sentence, Fine $50 and costs, $ , and H. of C. 3 mos.

O

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Supreme Court of the Anitel States.

No. 377. f

WILLIAM C. PERVEAR,

Plaintiff in Error,

Vs.

COMMONWEALTH OF MASSACHUSETTS.

0

BRIEF FOR THE DEFENDANT IN ERROR.

This case comes to this Court under the twenty-fifth section of *

Judiciary Act, on writ of error to the Superior Court of Massachusetts

Two questions are fairly presented upon the record.

First. Whether the payment of a tax to the United States upon the

spiritous liquors kept and sold by the plaintiff in error, authorized hin

to keep and sell them in violation of the statutes of Massachusetts.

Second. Whether the statutes of Massachusetts in this behalf are

4) unconstitutional. :

The Superior Court of m answered both these question

in the negative, and they are now brought here for revision.

The first of these questions has already been substantially settled b 0.

this Court by its decisions upon cases of the same character. 5

This Court has determined that a license granted under the Intern :

Revenue Acts to sell liquor, confers no authority to make such sales i

violation of state laws. 3

| It has also decided that the fee paid for such a license is merely a a

1 re aad sas ite I a no other — eres Wee 2 Seas Pon borane —

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PERVEAR US. COMMONWEALTH OF MASSACHUSETTS.

It has also decided that the payment of a specific tax upon an occu-

pation or business does not authorize the carrying on of such occupa-

tion or business, if prohibited by the statutes of a state.

McGuire rs. Commonwealth, 3 Wallace, 388.

United States vs. Vassar, 4 Wallace.

The only distinction which can be claimed to exist between these

decided cases and the one under consideration is, that in the present

case the tax paid was upon the article sold instead of upon the business

carried on.

But it is respectfully submitted that, notwithstanding this distinction

the rule established in the cases cited must apply to this case.

The power of the federal government to impose taxes upon prop-

erty is unlimited, so long as the taxes, if of one class, are ean and

if of the other class, are duly proportioned. :

It has power to tax every article and every species of property.

The claim of the plaintiff in error, if sustained, would lead to the

monstrous result that every article of property taxed by the general

government would thereby be removed from state jurisdiction. The

states would thereby lose the power to regulate or restrain in any way

the use or the sale of any such article.

The state governments might be utterly destroyed.

See Commonwealth vs. Holbrook, 10 Allen (Mass.) 202.

As to the second question raised. This Court has already held that

similar statutes of Massachusetts and of other states are constitutional.

The License cases, 5 Howard, 573, ete. ö

It is now said that the statutes in question are unconstitutional upon

he ground that the punishments prescribed for their violation are cruel

and unusual, etc.

The clause in the United States constitution forbidding such legisla-

ion, does not apply to the states, but limits the power of Congress

nly.

i Barron vs. Baltimore, 7 Peters, 247.

Fox vs. Ohio, 5 Howard, 434, 435.

Barker rs. People, 3 Cowen, 686.

James t vs. Commonwealth 12 8. & 1

—— ve renner tr

PERVEAR US. COMMONWEALTH OF MASSACHUSETTS.

If it is claimed that the constitution of Massachusetts also forbid

such legislation, it is sufficient answer to say that our own courts hav

settled that these statutes are not unconstitutional upon this ground.

Commonwealth vs. Hitchings, 5 Gray (Mass.) 483.

This Court, upon questions concerning the construction of state s

9 ne utes and constitutions, generally follows the decisions of the courts |

such state.

M’Cutchen vs. Marshall, 8 Peters, 220.

State Bank of Ohio vs. Knoop, 16 Howard, 369.

Nesmith vs. Sheldon, 7 Howard, 812.

There are four other cases on the docket of this Court similar to *

one under discussion. They are as follows: 4

5 No. 378. Lynde vs. Massachusetts.

No. 422. Salmon vs. Same.

No. 423. Cass vs. Same.

No. 424. Armstrong vs. Same.

No question is raised by either of these plaintiffs in error, which 1 5

112 4

5 3. Imported articles, s0 taxed, have been protected from State i

ference by this Court because they were taxed by Congress to

— — - — — P

2 PERVEAR US. COMMONWEALTH OF MASSACHUSETTS.

It has also decided that the payment of a specific tax upon an occu-

pation or business does not authorize the carrying on of such occupa-

tion or business, if prohibited by the statutes of a state.

McGuire rs. Commonwealth, 3 Wallace, 388.

United States vs. Vassar, 4 Wallace.

oS ——

The only distinction which can be claimed to exist between these

l [decided cases and the one under consideration is, that in the present

case the tax paid was upon the article sold instead of upon the business

carried on.

But it is respectfully submitted that, notwithstanding this distinction

| the rule established in the cases cited must apply to this case.

| The power of the federal government to impose taxes upon prop-

erty is unlimited, so long as the taxes, if of one class, are uniform, and

if of the other class, are duly proportioned.

It has power to tax every article and every species of property.

The claim of the plaintiff in error, if sustained, would lead to the

monstrous result that every article of property taxed by the general

government would thereby be removed from state jurisdiction. The

states would thereby lose the power to regulate or restrain in any way

the use or the sale of any such article.

The state governments might be utterly destroyed.

See Commonwealth vs. Holbrook, 10 Allen (Mass.) 202.

As to the second question raised. This Court has already held that

imilar statutes of Massachusetts and of other states are constitutional.

The License cases, 5 Howard, 573, etc.

It is now said that the statutes in question are unconstitutional upon

the ground that the punishments prescribed for their violation are cruel

mand unusual, etc. ,

‘

1

1

{

|

i

i The clause in the United States constitution forbidding such legisla-

ion, does not apply to the states, but limits the power of Congress

nlvy.

> * 4

4 2 OR epee

Barron vs. Baltimore, 7 Peters, 247.

Fox vs. Ohio, 5 Howard, 434, 435.

Barker vs. People, 3 Cowen, 686.

James vs. Commonwealth, 12 8. & R 221.

PERVEAR US. COMMONWEALTH OF MASSACHUSETTS.

If it is claimed that the constitution of Massachusetts also forbid

such legislation, it is sufficient answer to say that our own courts hav

settled that these statutes are not unconstitutional upon this ground.

Commonwealth vs. Hitchings, 5 Gray (Mass.) 483.

| This Court, upon questions concerning the construction of state ¢ *

9 0 utes and constitutions, generally follows the decisions of the courts ¢

such state.

M’Cutchen vs. Marshall, 8 Peters, 220.

State Bank of Ohio vs. Knoop, 16 Howard, 369.

Nesmith vs. Sheldon, 7 Howard, 812.

There are four other cases on the docket of this Court similar to be

one under discussion. They are as follows: a

No. 378. Lynde vs. Massachusetts.

No. 422. Salmon vs. Same.

No. 423. Cass vs. Same.

No. 424. Armstrong vs. Same.

No question is raised by either of these plaintiffs in error, which na

not been discussed in this case. a

It is now suggested to the Court that the record in each of these

named cases does not show that any question such as is prescribed §

the twenty-fifth section ef the Judiciary Act was passed upon by ti

state court of Massachusetts. 4

Inasmuch, however, as these cases must, at all events, fall if the om

now argued falls, the counsel for the Commonwealth has no desire

| 90 argue, but merely suggests, the question of the jurisdiction of this Oous

in these cases last named. j

| CHESTER I. REED,

E an General of Massachusetis.

8 e. ue 77. W uν .

3 nm gurl fe

Barron vs. Baltimore, 7 Peters, 247.

Fox vs. Ohio, 5 Howard, 434, 435.

Barker vs. People, 3 Cowen, 6886.

James vs. Commonwealth, 12 8. & R. 221.

—— —

—

ee

* Court of the Wuited States.

NO. 377.

WILLIAM C. PERVEAR, PLAINTIFF IN ERROR

V8. |

i COMMONWEALTH OF MASSACHUSETTS.

Plaintiff’s Brief.

This case is here on a writ of error to the Superior Court of

sachusetts, under the twenty-fifth section of the Judiciary Act.

The questions presented are

, Ist. Does the payment of a tax to the United States » the plaint i

upon the liquors kept and sold by him, authorize him to keep these fe

sale or to sell them contrary to the laws of Massachusetts? The pla

tiff contends that it does, and says:

0 1. Congress has power to lay and collect taxes, duties, imposts a

6 : excises in order to pay the debts and provide for the common deten

and general welfare of the United States; but all duties, imposts a

excises shall be unzform throughout the United States.

2. Congress, in the exercise of this power, has constantly

imported articles.

3. Imported articles, so taxed, have been protected from State in 4

ference by this Court because they were taxed by Congress to rai

revenue. a

9 7

*

rts, has now. taxed. dom m 00 1

2

5. Now, if the payment of the first impost protects imported

brandy from State Laws, why does not the payment of the second

impost protect the plaintiff's domestic liquor and beer?

6. Again, Chief Justice Marshall declares that,“ by the payment of

the duty to the United States, the importer PURCHASES a RIGHT to

sell his merchandise, a State law to the contrary notwithstanding.” Can

‘this be true? If it is, and it means anything, why has not the plaintiff,

by paying his duty, purchased a similar right to sell his goods, notwith-

standing a State law?

Brown vs. Maryland, 12 Wheaton. 4 7

McCulloch vs. Maryland, 4 Wheaton.

Weston vs. City Counc. Charleston, 2 Peters, 449.

Story on Constitution (article Taz).

7. The objection that the State governments would be destroyed

under the plaintiff’s position, cannot be maintained. The utmost that

)20uld befall them from the fullest enforcement of this constitutional power

of Congress would be, that they must mind their own business.

II.

CONSTITUTIONALITY OF THE MASSACHUSETTS LIQUOR LAW.

Ist. These laws are contained in the 86th and 87th chapters of the

Jeneral Statutes of Massachusetts, and in the e subsequent

nactments.

Ch. 121, Statutes 1864, 88 1 and 2.

Ch. 250, 10

Ch. 149, 1865.

Ch. 223, 10

Ch. 280, 1866.

Inspection will show that they are sumptuary laws.

Authorities show that they are enacted for a moral eng

— nm sos

3

enforce temperance and general morality by direct legislative er

d ment. fee

Com. vs. Clapp, 5 Gray, (Mass.) 97.

Com. vs. Hitchings, ib. (Mass.) 482.

Com. vs. Pomeroy, ib. (Mass.) 486 n.

Fisher vs. McGirr, 1 Gray, (Mass.) I.

License cases, 5 Howard, 504.

4th. Such an object is not a legitimate object of civil governmem

and enactments to such an end are not within its constitutional po re

The end of government is the protection of the persons and the or J

e erty of men, and not to enforce morality or to teach religion, or to cs 1

on farming, or the lumber trade, or to monopolize tlie liquor traffic.

_ 5th. Laws passed by Government, which it has no right to pass,

not laws.

6th. Punishments inflicted in pursuance of such laws are illeg : i

* inflicted. b 2

5 Mill on Liberty, pp. 170-3.

Wm. = Humboldt, — and Duties of Government, j

171. 1

Rationale of Government and Legislation, Lord Wrottesly.

8 9 Ith. If a State Government fines or imprisons an American ci 4

598 to enforce morality only, the American Government owes him prote

against the State.

Constitution, Preamble, Amendments, Art. X.

8th. The Liquor Laws of Massachusetts are, as before

intended to enforce morality only.

th. Congress cannot pass laws to enforce morality expressly, orf

a W moral. end, alone. It cannot aid a State to pass such laws eit

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10th. This Court will examine and determine the: constitutionality

lof any Act of Congress, or any part of one.

i Marbury vs. Madison, 1 Cranch, 137.

1 Story, Constitution, § 373-391.

3 & a § 1570.

1 Kent, 449.

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I 11th. But, if the general principle above enumerated is not sustained,

* say,

Duties are laid to collect a revenue. When paid, they are the revenue,

e, the means to carry out the powers of Congress. If the direct

consequence of any State law is to destroy any part of those means,

or even to interfere with their a can that law be constitutional ?

If it stood, could 7 ever — e 2

be,

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12th. This Court has ane said, tates wen no power, by

ation or OTHERWISE, to retard, impede, burden, or in any manner

: = the operation of the constitutional laws enacted by Congress to

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ry into execution the power vested in the General Government.”

McCulloch vs. Maryland.

Weston rs. City Council Charlestown.

III.

POLICE POWER.

1 1. Public police and economy defined.

| IV. Comm. ch. xiii. pp. 162, et seq.

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2. What are the subjects of police power ?

IV. Comm. ch. xiii.

Fisher vs. McGirr, 1 Gray.

3. The plaintiff avers, that at the times and places mentioned u

1e spirituous or intoxicating liquors charged to be sro for wale or 3

y him, in their own N or in . manner in 15

ave 8 2

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charges that he kept them or sold them, were not articles offensive, m

ious, infectious, or dangerous to public health or to public safety, #

as poisons, putrid provisio.s, infected clothing, or nag 4

That they are not subject to the provisions of any statute rel:

9 ge purporting to relate to the public health. That they are not

the keeping, or exhibition, or sale of which is an offence against F

morality or public decency. That they are not charged to be

the indictment. And that they are articles of regular commerce, &

were his personal property, and so were not subjects of the

: | power. |

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oS say. 12 222 23 8

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