Samuel Thurlow, Plaintiff In Error v. the Commonwealth of Massachusetts Joel Fletcher, Plaintiff In Error v. the State of Rhode Island and Providence Plaintations Andrew Peirce, Jr and Thomas Peirce, Plaintiffs In Error v. the State of New Hampshire

• Decision Date: 01 January 1847
• Parties: SAMUEL THURLOW, PLAINTIFF IN ERROR, v. THE COMMONWEALTH OF MASSACHUSETTS. JOEL FLETCHER, PLAINTIFF IN ERROR, v. THE STATE OF RHODE ISLAND AND PROVIDENCE PLAINTATIONS. ANDREW PEIRCE, JR., AND THOMAS W. PEIRCE, PLAINTIFFS IN ERROR, v. THE STATE OF NEW HAMPSHIRE
• Court: U.S. Supreme Court

46 U.S. 504

5 How. 504

12 L.Ed. 256

SAMUEL THURLOW, PLAINTIFF IN ERROR, v. THE COMMONWEALTH OF MASSACHUSETTS.

JOEL FLETCHER, PLAINTIFF IN ERROR,

v. THE STATE OF RHODE ISLAND AND PROVIDENCE PLAINTATIONS.

ANDREW PEIRCE, JR., AND THOMAS W. PEIRCE,

PLAINTIFFS IN ERROR,

v. THE STATE OF NEW HAMPSHIRE.

January Term, 1847

THESE cases were all brought up from the respective State courts by writs of error issued under the twenty-fifty section of the Judiciary Act, and were commonly known by the name of the License Cases.

Involving the same question, they were argued together, but by different counsel. When the decision of the court was pronounced, it was not accompanied by any opinion of the court, as such. But six of the justices gave separate opinions, each for himself. Four of them treated the cases collectively in one opinion, whilst the remaining two expressed opinions in the cases separately. Hence it becomes necessary for the reporter to make a statement in each case, and to postpone the opinions until the completion of all the statements. The arguments of counsel in each case will of course follow immediately after the statement in that case. They are placed in the order in which they are put by the Chief Justice in his opinion, but where the justices have given separate opinions in each case, the order is observed which they themselves have chosen.

Mr. Chief Justice Taney, one opinion, three cases. (p. 573.)

Mr. Justice McLean, three opinions.

No. 1. Thurlow v. Massachusetts. (p. 586.)

No. 2. Peirce v. New Hampshire. (p. 593.)

No. 3. Fletcher v. Rhode Island. (p. 596.)

Mr. Justice Catron, two opinions.

No. 1. Peirce v. New Hampshire. (p. 597.)

No. 2. Thurlow v. Massachusetts. (p. 609.)

Mr. Justice Daniel, one opinion, three cases. (p. 611.)

Mr. Justice Woodbury, one opinion, three cases. (p. 618.)

Mr. Justice Grier, one opinion, three cases. (p. 631.)

To begin with the case of

Thurlow v. The Commonwealth of Massachusetts.

This case was brought up from the Supreme Judicial Court of Massachusetts. The plaintiff in error was indicted and convicted, under the Revised Statutes of the State, for selling liquor without a license. The indictment contained several specifications, but they were all similar to the first, which was as follows:——

'The jurors, for the Commonwealth of Massachusetts, upon their oath present, that Samuel Thurlow, of Georgetown, in said county, trader, on the first day of May, in the year of our Lord one thousand eight hundred and forty-two, at said Georgetown, he not being then and there first licensed as a retailer of wine and spirits, as provided in the forty-seventh chapter of the Revised Statutes of said Commonwealth, and without any license therefor duly had according to law, did presume to be, and was, a retailer of wine, brandy, rum, and spirituous liquors, to one Samuel Goodale, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, and did then and there sell to said Goodale two quarts of spirituous liquors, and no more, against the peace of said Commonwealth and the form of the statute in such case made and provided.'

It becomes necessary to insert the forty-seventh chapter of the Revised Statutes, and also an act passed in 1837. They are as follows:——

Revised Statutes of Massachusetts, Chap. 47.—The Regulation of Licensed Houses.

'Section 1. No person shall presume to be an innholder, common victualler, or seller of wine, brandy, rum, or any other spirituous liquor, to be used in or about his house, or other buildings, unless he is first licensed as an innholder or common victualler, according to the provisions of this chapter, on pain of forfeiting one hundred dollars.

'Sect. 2. If any person shall sell any wine or spirituous liquor,

or any mixed liquor, part of which is spirituous, to be used in or about his house or other buildings, without being duly licensed as an innholder or common victualler, he shall forfeit for each offence twenty dollars.

'Sect. 3. No person shall presume to be a retailer or seller of wine, brandy, rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is [at] first licensed as a retailer of wine and spirits, as is provided in this chapter, on pain of forfeiting twenty dollars for each offence.

'Sect. 4. If any person, licensed to be a retailer as aforesaid, shall sell any of the above liquors, either mixed or unmixed, to be used in or about his house or shop, he shall forfeit for each offence twenty dollars.

'Sect. 5. Every innholder shall at all times be furnished with suitable provisions and lodging for strangers and travellers, and with stable-room, hay, and provender for their horses and cattle; and if he shall not be at all times so provided, the county commissioners may revoke his license.

'Sect. 6. Every common victualler shall have all the rights and privileges, and be subject to all the duties and obligations, of innholders, excepting that he shall not be required to furnish lodgings for travellers, nor stable-room, hay, and provender for horses and cattle.

'Sect. 7. Every innholder and common victualler shall at all times have a board or sign affixed to his house, shop, cellar, or store, or in some conspicuous place near the same, with his name at large thereon, and the employment for which he is licensed, on pain of forfeiting twenty dollars.

'Sect. 8. If any innholder shall, when requested, refuse to receive and make suitable provisions for strangers and travellers, and their horses and cattle, he shall, upon conviction thereof before the Court of Common Pleas, be punished by a fine not exceeding fifty dollars, and shall also, by order of the said court, be deprived of his license; and the court shall order the sheriff or his deputy forthwith to cause his sign to be taken down.

'Sect. 9. No innholder or common victualler shall have or keep in or about his house, or other buildings, yards, and gardens, or dependencies, any dice, cards, bowls, billiards, quoits, or other implements used in gaming, nor shall suffer any person resorting thither to use or exercise any of said games, or any other unlawful game or sport within his said premises, on pain of forfeiting ten dollars for every such offence.

'Sect. 10. Every person convicted of using or exercising any of the games aforesaid, in or about any such house or building of an innholder or common victualler, shall forfeit ten dollars.

'Sect. 11. No innholder or common victualler shall suffer any

person to drink to drunkenness or excess in his premises, nor suffer any minor or servant, travellers excepted, to have any strong drink there, on pain of forfeiting five dollars for each offence.

'Sect. 12. If any innholder or common victualler shall trust or give credit to any person for liquor, he shall lose and forfeit all the sums so trusted or credited, and all actions brought for such debt shall be utterly barred; and the defendant in such action may plead the matter specially, or may give it in evidence under the general issue.

'Sect. 13. If any common victualler shall keep open his house, cellar, shop, store, or place of business on any part of the Lord's day or evening, or at a later hour than ten of the o'clock in the evening of any other day of the week, and entertain any person therein by selling him any spirituous or strong liquor, he shall forfeit for each offence ten dollars.

'Sect. 14. When any person shall, by excessive drinking of spirituous liquors, so misspend, waste, or lessen his estate as thereby either to expose himself or his family to want or indigent circumstances, or the town to which he belongs to expense for the maintenance of him or his family, or shall so habitually indulge himself in the use of spirituous liquors as thereby greatly to injure his health or endanger the loss thereof, the selectmen of the town in which such spendthrift lives shall, in writing under their hands, forbid all licensed innholders, common victuallers, and retailers of the same town, to sell to him any spirituous or strong liquors aforesaid for the space of one year; and they may in like manner forbid the selling of any such liquors to the said spendthrift by the said licensed persons of any other town to which the spendthrift may resort for the same; and the city clerk of the city of Boston shall, under the direction of the mayor and aldermen thereof, issue a like prohibition as to any such spendthrift in the said city.

'Sect. 15. The said mayor and aldermen, and said selectmen, shall, in the same manner, from year to year, renew such prohibition as to all such persons as have not, in their opinion, reformed within the year; and if any innholder, common victualler, or retailer shall, during any such prohibition, sell to any such prohibited person any such spirituous liquor, he shall forfeit for each offence twenty dollars.

'Sect. 16. When the said mayor and aldermen, or selectmen, in execution of the foregoing provisions, shall have prohibited the sale of spirituous liquors to any such spendthrift, if any person shall, with a knowledge of said prohibition, give, sell, purchase, or procure for him in behalf of said prohibited person, or for his use, any such spirituous liquors, he shall forfeit for each offence twenty dollars.

'Sect. 17. The commissioners in the several counties may license, for the towns in their respective counties, as many persons to

be innholders or retailers therein as they shall think the public good may require; and the mayor and aldermen of the city of Boston may, in like manner, license innholders and retailers in the said city; and the Court of Common Pleas in the county of Suffolk may, in like manner, license innholders and retailers in the town of Chelsea; and every license, either to an innholder or retailer, shall contain a specification of the street, lane...