License Cases
46 U.S. 504 (1847)

Annotate this Case

U.S. Supreme Court

License Cases, 46 U.S. 5 How. 504 504 (1847)

License Cases

46 U.S. (5 How.) 504

Syllabus

Laws of Massachusetts, providing that 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 first licensed as a retailer of wine and spirits, and that nothing in the law should be so construed as to require the county commissioners to grant any licenses when in their opinion the public good does not require them to be granted --

Of Rhode Island, forbidding the sale of rum, gin, brandy &c., in a less quantity than ten gallons, although in this case the brandy which was sold was duly imported from France into the United States, and purchased by the party indicted in the original importer --

Of New Hampshire, imposing similar restrictions to the foregoing upon licenses, although in this case the article sold was a barrel of American gin, purchased in Boston and carried coastwise to the landing at Piscataqua Bridge and there sold in the same barrel --

All adjudged to be not inconsistent with any of the provisions of the Constitution of the United States or acts of Congress under it.

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 [arguments omitted in digital version]. 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.

Page 46 U. S. 505

MR. CHIEF JUSTICE TANEY, one opinion, three cases, p. 46 U. S. 573.

MR. JUSTICE McLEAN three opinions.

No. 1. Thurlow v. Massachusetts, p. 46 U. S. 586.

No. 2. Peirce v. New Hampshire, p. 46 U. S. 593.

No. 3. Fletcher v. Rhode Island, p. 46 U. S. 596.

MR. JUSTICE CATRON, two opinions.

No. 1. Peirce v. New Hampshire, p. 46 U. S. 597.

No. 2. Thurlow v. Massachusetts, p. 46 U. S. 609.

MR. JUSTICE DANIEL, one opinion, three cases, p. 46 U. S. 611.

MR. JUSTICE WOODBURY, one opinion, three cases, p. 46 U. S. 618.

MR. JUSTICE GRIER, one opinion, three cases, p. 46 U. S. 631.

To begin with the case of

Thurlow v. 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."

"Sec. 2. If any person shall sell any wine or spirituous liquor

Page 46 U. S. 506

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 offense twenty dollars."

"Sec. 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 offense."

"Sec. 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 offense twenty dollars."

"Sec. 5. Every innholder shall at all times be furnished with suitable provisions and lodging for strangers and travelers, 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."

"Sec. 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 travelers, nor stable room, hay, and provender for horses and cattle."

"Sec. 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."

"Sec. 8. If any innholder shall, when requested, refuse to receive and make suitable provisions for strangers and travelers, 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."

"Sec. 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 offense."

"Sec. 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."

"Sec. 11. No innholder or common victualler shall suffer any

Page 46 U. S. 507

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

"Sec. 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."

"Sec. 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 offense ten dollars."

"Sec. 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."

"Sec. 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 offense twenty dollars."

"Sec. 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 offense twenty dollars."

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

Page 46 U. S. 508

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, alley, or other place, and the number of the building, or some other particular description thereof, where such licensed person shall exercise his employment, and the license shall not protect any such person from the penalties provided in this chapter for exercising his employment in any other place than that which is specified in the license."

"Sec. 18. The Mayor and Aldermen of the City of Boston may license, for the said city, as many persons to be common victuallers as they shall think the public good may require, and every such license shall contain such a specification or description, as is mentioned in the preceding section, of the street or other place, and of the building where the licensed person shall exercise his employment, and the license shall not protect him from the penalties provided in this chapter for exercising it in any other place."

"Sec. 19. All licenses to any innholder, retailer, or common victualler shall expire on the first day of April in each year, but any license may be granted or renewed at any time during the preceding month of March, to take effect from the said first day of April, and after that day they may be granted for the remainder of the year, whenever the officers authorized to grant the same shall deem it expedient."

"Sec. 20. Every person, who shall be licensed as before provided in this chapter shall pay therefor to the Clerk of the City of Boston, the Clerk of the Court of Common Pleas for the County of Suffolk, or to the clerk of the commissioners of the respective counties so licensing said person, one dollar, which shall be paid by said clerks to the treasurers of their respective counties for the use of said counties, and such persons shall also pay twenty cents to the use of the said clerks respectively, and no other fee or excise whatever shall be taken from any person applying for or receiving a license under the provisions of this chapter."

"Sec. 21. Any license to an innholder, retailer, or common victualler may be so framed as to authorize the licensed person to sell wine, beer, ale, cider, or any other fermented liquors, and not to authorize him to sell brandy, rum, or any other spirituous liquor, and no excise or fee shall be required for such a license."

"Sec. 22. The clerk of the commissioners in the several counties shall seasonably, before the time for granting licenses in each year, transmit to the selectmen of every town within the county a list of the persons in such town who were licensed as innholders or retailers the preceding year. "

Page 46 U. S. 509

"Sec. 23. No license shall be granted or renewed to any person, unless he shall produce a certificate from the selectmen of the town for which he applies to be licensed, in substance as follows, to-wit:"

" We, the subscribers, a majority of the selectmen of the town of _____, do hereby certify that _____ has applied to us to be recommended as [here expressing the employment, and a particular description of the place for which the license is applied for] in the said town, and that, after mature consideration had thereon, at a meeting held for that purpose, at which we were each of us present, we are of opinion that the petition of said _____ be granted, he being, to the best of our knowledge and behalf, a person of good moral character."

"Sec. 24. Any person, producing such certificate of the selectmen shall be heard and his application decided upon either on a motion made orally by himself or his counsel or upon a petition in writing, as he shall elect."

"Sec. 25. If the selectmen of any town shall unreasonably neglect or refuse to make and deliver such a certificate, either for the original granting or the renewal of a license, the person aggrieved thereby may apply for a license to the commissioners, first giving twenty-four hours' notice to a majority of the said selectmen of his intended application, so that they may appear, if they see fit, to object thereto, and if on such application it shall appear that the said selectmen did unreasonably neglect or refuse to give the said certificate, and that the public good requires that the license should be granted, the commissioners may grant the same."

"Sec. 26. All the fines imposed by this chapter may be recovered by indictment, to the use of the county where the offense is committed, and when the fine does not exceed twenty dollars, the offense may be prosecuted before a justice of the peace, subject to the right of appeal to the court of common pleas, as in other cases."

"Sec. 27. When any person shall be convicted under the provisions of this chapter and shall fail to pay the fine awarded against him, he may be imprisoned in the common jail for a time not exceeding ninety days, at the discretion of the court or justice before whom the trial may be had."

"Sec. 28. All prosecutions under the provisions of this chapter for offenses committed in the City of Boston (excepting where the fine exceeds twenty dollars) may be heard and determined in the police court, subject to the right of appeal to the municipal court, but the said police court shall not have power in any such case to sentence any person to imprisonment except as provided in the preceding section."

"Sec. 29. Any person licensed under the provisions of this chapter who shall have been twice before convicted of a breach of any of the said provisions shall thereupon, in addition to the

Page 46 U. S. 510

penalties before provided, be liable to a further punishment by imprisonment in the common jail for a time not exceeding ninety days, at the discretion of the court before whom the trial may be had."

"Acts of 1837, Chapter 242"

"An act concerning Licensed Houses and the Sale of Intoxicating Liquors"

"Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:"

"Section 1. No licensed innholder or other person shall sell any intoxication liquor on Sunday, on pain of forfeiting twenty dollars for each offense, to be recovered in the manner and for the use provided in the twenty-sixth section of the forty-seventh chapter of the Revised statutes."

"Sec. 2. Any license to an innholder or common victualler may be so framed as to authorize the licensed person to keep an inn or victualling house without authority to sell any intoxicating liquor, and no excise or fee shall be required for such license, provided that nothing contained in this act or in the forty-seventh chapter of the Revised Statutes shall be so construed as to require the county commissioners to grant any licenses when in their opinion the public good does not require them to be granted."

"Sec. 3. Any person who shall have been licensed according to the provisions of the forty-seventh chapter of the Revised statutes or of this act, and who shall have been twice convicted of a breach of this act or of that chapter, shall, on such second conviction, in addition to the penalties prescribed for such offense, be adjudged to have forfeited his license."

"Sec. 4. Any person who shall have been three times convicted of a breach of this act or of the forty-seventh chapter of the Revised statutes shall, upon such third conviction, in addition to the penalties in this act and said chapter provided, be liable to be imprisoned in the common jail for a time not exceeding ninety days, at the discretion of the court before whom the trial may be had."

"Sec. 5. The Secretary of this Commonwealth shall cause a condensed summary of all laws relating to innholders, retailers, and licensed houses to be printed for the use of this Commonwealth, and he shall supply the county commissioners for the several counties and such other officers as by law are authorized to grant licenses with the same, and the said commissioners or other officers, whenever they grant any license, shall furnish each person so licensed with one copy of said license laws, to the end that such person may know to what duties, restrictions, and liabilities he is subjected by law."

"[Approved by the governor, April 20, 1837.] "

Page 46 U. S. 511

A conviction having taken place under the indictment upon these statutes, the defendant filed several exceptions, of which it is material to notice only the following:

"2. It appeared upon the trial that some of the sales charged in the indictment were of foreign liquors, and his Honor directed the jury that the license law of this Commonwealth applied as well to imported spirits as to domestic, and that this Commonwealth could constitutionally control the sale of foreign spirits by retail, and that said law is not inconsistent with Constitution or revenue laws of the United States. To this ruling also the defendant excepts."

The court below allowed this exception, together with all the others, upon which the case was removed to the Supreme Judicial Court. But that court overruled the exceptions and ordered judgment to be entered upon the verdict.

Mr. Hallett, the counsel for Thurlow, then applied for and obtained a writ of error to bring the case to the Supreme Court of the United States upon the following allegation of error, viz.:

"That the several acts of the Legislature of Massachusetts concerning licensed houses and the sale of intoxicating liquors, and especially the acts which are hereto appended and set out as part of the record in the said cause, upon which said judgment was founded, and also the opinion and judgment of said Supreme Judicial Court of Massachusetts, in the application and construction of said acts to the sales of imported foreign liquors and spirits by the said Thurlow, are repugnant to and inconsistent with the provisions of the Constitution, treaties, and laws of the United States insofar as the said acts, and the construction thereon by the said Supreme Judicial Court of Massachusetts, prohibit, restrain, control, or prevent the sale of imported wines and spirituous liquors by retail or otherwise in the said State of Massachusetts, and are therefore void."

Upon the writ of error thus issued, the case came up to this Court.

Page 46 U. S. 540

"Joel Fletcher, Plaintiff in error v. State of Rhode Island and Providence Plantations, Defendant in error"

This case was very similar to the preceding one. The principal difference was in the admission of the fact, that the brandy, for the sale of which the plaintiff in error was indicted, was duly imported into the United States, the duty upon it paid, and that it was purchased by Fletcher from the original importer.

The following admission of facts was filed in the cause:

"It is admitted, in the above case that the liquors alleged in said indictment to have been sold by the defendant in violation of the act of this state entitled 'An act enabling town councils to grant licenses for the retailing strong liquors, and for other purposes' was brandy, the growth, produce, and manufacture of the Kingdom of France, which said brandy was duly imported into the United States at the port of Boston in the District of Massachusetts for the purpose of sale in the markets of the United States, and the duties levied thereon by virtue of the Act of Congress of the United States, approved 39 August, A.D., 1842, entitled, 'An act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes' were duly paid to the collector of the said port of Boston; that said defendant bought said brandy of the importer thereof for the purpose of sale, and in pursuance of said purpose did, at the times alleged in said indictment, sell the same at said Cumberland without license first had and obtained from the Town Council of the Town of Cumberland."

"It is further agreed that the Town Council of said Town of Cumberland has refused to grant any license for the year ensuing the Thursday next following the first Wednesday in April, A.D., 1845, for retailing strong liquors in any quantities, having been instructed by the electors of said town, in town meeting assembled, not to grant any licenses for the purpose aforesaid."

It is not necessary to recite the whole of the laws of the state, as they were very similar to those of Massachusetts. The following one will be sufficient:

"An act in Addition to an act entitled 'An act enabling the Town Councils to grant Licenses, and for other Purposes.'"

"It is enacted by the general assembly as follows:"

"Section 1. No licenses shall be granted for the retailing of wines or strong liquors in any town or city in this state when the electors in such town or city, qualified to vote for general officers, shall, at the annual town or ward meetings held for the election of town or city officers, decide that no such licenses for retailing as aforesaid shall be granted for that year. "

Page 46 U. S. 541

Fletcher was indicted upon two counts. The first was for selling strong liquor, to-wit, rum, gin, and brandy, by retail, in a less quantity than ten gallons without license, and the second for selling and suffering to be sold in his possessions ale, wine, and other strong liquors, by retail, &c.

Upon this indictment he was convicted, and the case brought from the Supreme Court of Rhode Island to this Court. The assignment of errors by the counsel of Fletcher was as follows:

"Assignment of Errors"

"United States of America, Supreme Court: Joel Fletcher, Plaintiff in error, v. State of Rhode Island and Providence Plantations, Defendant in error."

"On a judgment of the Supreme Court begun and holden at Providence, within and for the County of Providence and State of Rhode Island and Providence Plantations, on the third Monday of September in the year of our Lord one thousand eight hundred and forty-five, wherein the said State of Rhode Island and Providence Plantations, by Joseph M. Blake, Attorney General of said state, is prosecutor, and the said Joel Fletcher is defendant, the said Joel Fletcher, upon a writ of error upon said judgment, returnable to the next term of the Supreme Court for the United States, to be begun and holden at the City of Washington, in the District of Columbia, on the first Monday of December, in the year of our Lord one thousand eight hundred and forty-five, assigns for error in the records of process and judgment aforesaid, founded on certain statutes of the said State of Rhode Island and Providence Plantations, and the construction thereof by the said Supreme Court, the following, to-wit:"

"That the judgment rendered in the supreme court of said state in this case, it being the highest court of law and equity of the said state in which a decision could be had in said case, should be reversed, for the reasons following, viz.:"

"That the act of the General Assembly of said State of Rhode Island and Providence Plantations, entitled, 'An act enabling town councils to grant licenses for retailing strong liquors, and for other purposes,' and the act entitled 'An act in addition to an act, entitled, An act enabling town councils to grant licenses for retailing strong liquors, and for other purposes,' and appended hereto and set out as a part of the record in the said cause upon which said judgment was founded, and also the opinion and judgment of said Supreme Court of said State of Rhode Island and Providence Plantations, in the application and construction of said acts to the proof submitted in said cause, are void, the same being repugnant to that clause of the eight section of the Constitution of the United States which provides"

" That the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general

Page 46 U. S. 542

welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States,"

"and are also repugnant to that clause of the said eighth section of said Constitution which provides as follows:"

" The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,"

"and are also repugnant to that clause of the tenth section of said Constitution of the United States which provides as follows:"

" No state shall, without the consent of Congress, lay any imposts or duties on imports and exports except what may be absolutely necessary for executing its inspection laws,"

"and the acts of Congress, in pursuance of the aforesaid several clauses of said Constitution of the United States now existing in full force, which objections were, at the trial of said cause before said court, taken by the said Fletcher in his defense, and were overruled by said court. There is error also in this, to-wit, that by the record aforesaid it appears that the judgment aforesaid, in form aforesaid given, was given for the said State of Rhode Island and Providence Plantations against the said Joel Fletcher, whereas, by the law of the land, the said judgment ought to have been given for the said Fletcher against the said state, and the said Joel Fletcher prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings, and the matters herein set forth, may be reversed, annulled, and held for nothing, and that he may be restored to all things which he has lost by occasion of said judgment."

"JOEL FLETCHER"

"By JOHN WHIPPLE and"

"SAMUEL AMES"

"His Attorneys"

Page 46 U. S. 554

"Andrew Peirce, Junior, and Thomas W. Peirce, Plaintiffs in error v. State of New Hampshire."

"This case originated in the Court of Common Pleas for the County of Strafford, and was carried to the Superior Court of Judicature for the First Judicial District of New Hampshire. The plaintiffs in error were indicted for that they did unlawfully, knowingly, willfully, and without license therefore from the selectmen of said Dover, the same being the town where the defendants then resided, sell to one Aaron Sias one barrel of gin, at and for the price of $11.85, contrary to the form of the statute &c. "

Page 46 U. S. 555

"The counsel for the state introduced evidence to prove the sale of the gin, as set forth in the indictment, and it was proved and admitted by the defendants that they sold to said Aaron Sias, on the day alleged in the indictment, one barrel of American gin for the price of $11.85, and took from said Sias his promissory note including that sum. It appeared that it was part of the regular business of the defendants to sell ardent spirits in large quantities."

"To sustain the prosecution, the counsel for the state relied on the Statute of July 4, 1838, which is in these words, viz.:"

"An act regulating the Sale of Wine and Spirituous Liquors"

" Sec. 1. Be it enacted by the Senate and House of Representatives in General court convened, that if any person shall, without license from the selectmen of the town or place where such person resides, sell any wine, rum, gin, brandy, or other spirits in any quantity or shall sell any mixed liquors, part of which are spirituous, such person so offending, for each and every such offense, on conviction thereof, upon an indictment in the county wherein the offense may be committed, shall forfeit and pay a sum not exceeding fifty dollars nor less than twenty-five dollars for the use of such county."

" Sec. 2. And be it further enacted, that the third section of an act, passed July 7, 1827, entitled, 'An act regulating licensed houses,' and other acts or parts of acts inconsistent with the provisions of this act, be, and the same hereby are, repealed."

" Approved July 4, 1838."

"The counsel for the defendants moved the court to instruct the jury that if the law of 1838, under which the respondents were indicted, was constitutional, the sale here was contrary to law, and the note of Sias was void, and that such a payment by note was no payment, and therefore there was no sale. But the court refused so to instruct the jury, but directed them that, on the supposition the defendants could not recover the contents of the note, they might notwithstanding having violated the statute. The defendants' counsel then introduced evidence that the barrel of gin was purchased by the defendants in Boston, in the Commonwealth of Massachusetts, brought coastwise to the landing at Piscataqua Bridge, and from thence to the defendants' store in Dover, and afterwards sold to Sias in the same barrel and in the same condition in which it was purchased in Massachusetts. And the defendants' counsel contended that the aforesaid statute of July 4, 1838, was unconstitutional and void because the same is in violation of certain public treaties of the United States with Holland, France, and other countries, containing stipulations for the admission of spirits into the United States, and because it is repugnant to the two following clauses in the Constitution of the United States, viz.:"

" No state shall, without the consent of the Congress, lay any

Page 46 U. S. 556

imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. . . . The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

" And the defendants' counsel contended that the jury was the judge of the law as well as the fact in the case, that it was its duty to judge of the constitutionality of the Act of July 4, 1838, and to form its own opinion upon that question, and that the court was not to instruct the jury relative to questions of law, as in civil cases, but was merely to give advice to the jury in matters of law. The court instructed the jury that the position that the jury were judges of the law as well as of the fact, as contended for by the defendants' counsel, was not correct to the extent of the general terms in which it was stated; that the same rule existed in this respect in criminal cases which prevailed in civil cases; that it was the duty of the court to instruct the jury in relation to questions of law, and that the court was responsible for the correctness of the instructions give, and in case of conviction, if the instructions were wrong, the verdict might be set aside for that cause; but that the jury had the power to overrule the instructions of the court, and decide the law contrary to those instructions, through their power to give a general verdict of acquittal; and that if they did so, and acquitted the defendants, the court could not correct the matter if the jury had erred, because the defendants could not in such case be tried again; and that the circumstance that the jury had thus the power to overrule the instructions of the court in case of an acquittal did not show that they had a right to judge of the law. The court further instructed the jury that the statute of July 4, 1838, was not entirely void if it might have an operation constitutionally in any case, and that, as far as this case was concerned, it could not be in violation of any treaty with any foreign power which had been referred to, permitting the introduction of foreign spirits into the United States, because the liquor in question here was proved to be American gin. The court further instructed the jury that this statute, as it regarded this case, was not repugnant to the clause in the Constitution of the United States providing that no state shall, without the consent of Congress, lay any duty on imports or exports, because the gin in this case was not a foreign article and was not imported into, but had been manufactured in, the United States. The court further instructed the jury that this state could not regulate commerce between this and other states; that this state could not prohibit the introduction of articles from another state with such a view, nor prohibit a sale of them with such a purpose, but that although the state could not make such laws with such views and for such purposes, she was not entirely forbidden to legislate in relation to articles introduced from foreign countries or from other states; that she might tax them the same

Page 46 U. S. 557

as other property, and might regulate the sale to some extent; that a state might pass health and police laws which would, to a certain extent, affect foreign commerce, and commerce between the states, and that this statute was a regulation of that character, and constitutional. And the court further said in conclusion (the sale being admitted, and the instructions of the court that the law, as applicable to this case, was constitutional, having been given) that nothing farther remained in this particular case unless the jury saw fit to exercise the power that they possessed of overruling the instructions of the court, and giving a verdict contrary to those instructions, and that if they did so and acquitted the defendants, the court could not set aside the verdict, even if an error had been committed."

"The jury having returned a verdict, that the defendants were guilty, the defendants excepted to the foregoing instructions, and to what is said in conclusion of the charge as aforesaid, and filed this bill; which was sealed and allowed."

"JOEL PARKER"

This judgment having been affirmed by the Superior court of Judicature, a writ of error brought the case up to this Court.

Page 46 U. S. 573

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