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Pervear v. The Commonwealth, 72 U.S. 5 Wall. 475 475 (1866)

Pervear v. The Commonwealth

72 U.S. (5 Wall.) 475


1. A license from the federal government, under the internal revenue acts of Congress, is no bar to an indictment under a state law prohibiting the sale of intoxicating liquors. The License Tax Cases, supra, p. <|72 U.S. 462|>462, herein affirmed.

2. A law of a state taxing or prohibiting a business already taxed by Congress,

Page 72 U. S. 476

as ex. gr., the keeping and sale of intoxicating liquors, Congress having declared that its imposition of a tax should not be taken to abridge the power of the state to tax or prohibit the licensed business, is not unconstitutional.

3. The provision in the 8th article of the amendments to the Constitution, that "excessive fines" shall not be "imposed, nor cruel and unusual punishments inflicted" applies to national not to state legislation, the Court observing, however, that if this were otherwise, a fine of $50 and imprisonment at hard labor in the house of correction, during three months -- the punishment imposed by a state for violating one of its statutes forbidding the keeping and sale of intoxicating liquors -- cannot be regarded as excessive, cruel, or unusual.

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 defense:

(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

Page 72 U. S. 477

plea was no defense 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 defense to the indictment?

Page 72 U. S. 478

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