Pervear v. the Commonwealth

Decision Date01 December 1866
Citation72 U.S. 475,5 Wall. 475,18 L.Ed. 608
PartiesPERVEAR v. THE COMMONWEALTH
CourtU.S. Supreme Court

THIS cause was brought before the court by writ of error to the Supreme Court of the Commonwealth of Massachusetts, under the 25th section of the Judiciary Act.

Pervear, the plaintiff in error, was indicted in the State court for keeping and maintaining without license a tenement for the illegal sale and illegal keeping of intoxicating liquors.

In bar of this indictment he pleaded specially three matters of defence:

(1) That he had a license from the United States under the internal revenue acts of Congress to do all the acts for which he was indicted:

(2) That he had paid a tax or duty on the intoxicating liquors, for keeping and selling which the indictment was found, in the same packages, and in the same form and quantity in which he sold the same; and

(3) That the fine and punishment imposed and inflicted by the law of Massachusetts for the acts charged in the indictment were cruel, excessive, and unusual, and that the State law was therefore in conflict with the Constitution of the United States [the 8th article to the amendments of which, proposed in 1789, declares that 'excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted].

This plea was overruled, and Pervear declining to plead further, a plea of not guilty was entered for him. He was then put on trial, and the court instructed the jury that the plea was no defence to the indictment; to which instruction exception was taken. A verdict of guilty was thereupon found, and Pervear was sentenced to pay a fine of fifty dollars and to be confined at hard labor, in the house of correction, for three months.

The writ of error brought this sentence under review, and the general question now was, Did the State court err in instructing the jury that the plea was no defence to the indictment?

Mr. Sennott for Pervear, plaintiff in error:

I. Congress, in the exercise of its power to lay and collect taxes, duties, imposts, &c., has constantly taxed imported articles. Such articles, so taxed, have been protected from State interference by this court because they were taxed by Congress to raise revenue. The same body, in its internal revenue acts, has of late taxed domestic spirits and beer by measure, for the purpose of raising a revenue.

Now, if the payment by the first impost protects imported brandy from State laws, why does not the payment of the second impost protect the plaintiff's domestic spirits and beer?

In Brown v. Maryland,1 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.' If this be true, the plaintiff, by paying his duty, purchased a similar right to sell his goods, notwithstanding a State law.

II. The end of government is the protection of the persons and the property of men, and not to enforce morality or to teach religion, or to carry on farming, or the lumber trade, or to monopolize the liquor traffic. Laws passed by government, which it has no right to pass, are not laws. Punishments inflicted in pursuance of them are illegally inflicted.

The punishment, in this case, being for doing a lawful act, was excessive, cruel, and unusual, and therefore against the eighth amendment of 1789.

Mr. Reed, Attorney-General of Massachusetts, contra:

The only distinction which it can be pretended exists between McGuire v. Commonwealth2 and The License Tax Cases,3 already decided by this court, and the case now under consideration is, that in the present case the tax paid was upon the articles sold instead of upon the business carried on. But the distinction is not one of essence, and, notwithstanding it, the rule established in the cases cited must apply.

The CHIEF JUSTICE, after stating the case as already given, delivered the opinion of the court.

We have already decided at this term that the first proposition of the plea in this case is no bar to an indictment under a State law taxing or prohibiting the sale of intoxicating liquors.

The second proposition of the plea is nothing more than a different form of the first. Both are identical in substance.

The case of Brown v. Maryland was referred to in argument as an authority for the general proposition that the sale of goods in the same packages on which a duty had been paid to the United States cannot be prohibited by State legislation. But this case does not sustain the proposition in support of which it is cited.

The discussion in Brown v. Maryland related wholly to imports under National legislation concerning commerce with foreign nations. A law of Maryland required importers of foreign goods to take out and pay for a State license for the sale of such goods in that State; and under this law the members of a Baltimore firm were indicted for having sold certain goods in packages as imported, without having taken out the required license. The defence was that the duty on the goods, imposed by the act of Congress, had been paid to the United States; that the license tax was, in effect, an additional import duty, which could not be constitutionally imposed by State law.

This court sustained the defence then set up. It held that, by the terms of the Constitution, the power to impose duties on imports was exclusive in Congress; and that the law of Maryland was in conflict with the act of Congress on the same subject, and was therefore void.

But the defence set up in the case before us is a very different one. It is not founded on any exclusive power of Congress, nor any act of Congress in conflict with State law. It is founded on the general power to levy and collect taxes, admitted on all hands to be concurrent only with the same general power in the State governments; and upon an act of Congress...

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100 cases
  • People v. Cisneros
    • United States
    • Supreme Court of Colorado
    • July 6, 1993
    ...of the Fourteenth Amendment, the Eighth Amendment was held applicable only to the United States Government. Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475, 480, 18 L.Ed. 608 (1866); Ex Parte Watkins, 32 U.S. (7 Pet.) 568, 574, 8 L.Ed. 786 (1833). However, in Pervear the Court made the follo......
  • Paul Weems v. United States
    • United States
    • United States Supreme Court
    • May 2, 1910
    ...to by a considerable majority. No case has occurred in this court which has called for an exhaustive definition. In Pervear v. Massachusetts, 5 Wall. 475, 18 L. ed. 608, it was decided that the clause did not apply to state but to national legislation. But we went further, and said that we ......
  • St. Louis Gunning Advertisement Co. v. City of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • May 9, 1911
    ...See, also, United States v. Dewitt, 9 Wall. 41, 19 L. Ed. 593; License Tax Cases, 5 Wall. 462, 18 L. Ed. 497; Pervear v. Commonwealth, 5 Wall. 475, 18 L. Ed. 608. "Another decision, very much in point upon this branch of the case, is Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667 , also de......
  • State v. O'Neil
    • United States
    • United States State Supreme Court of Iowa
    • May 16, 1910
    ...v. Nelson, 10 Idaho, 522, 79 Pac. 79, 67 L. R. A. 808, 109 Am. St. Rep. 226; Ex parte Swann, 96 Mo. 44, 9 S. W. 10;Pervear v. Massachusetts, 72 U. S. 475, 18 L. Ed. 608;McLaughlin v. State, 45 Ind. 338;State v. Barnes, 3 N. D. 319, 55 N. W. 883;Harper v. Commonwealth, 93 Ky. 290, 19 S. W. 7......
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    ...e.g., McDonald v. Commonwealth, 53 N.E. 874 (Mass. 1899); In re Kemmler, 136 U.S. 436 (1890); Wilkerson v. Utah, 99 U.S. 130 (1878). (18) 5 Wall. 475 (19) See McDonald v. Commonwealth, 53 N.E. 874 (Mass. 1899). (20) See Wilkerson, 99 U.S. at 135-36 (1878). (21) Id, at 136. (22) Kemmler, 136......

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