Pervear v. Massachusetts
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,  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. Commonwealth  and The License Tax Cases,  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.
^1 12 Wheaton, 419.
^2 3 Wallace, 388.
^3 Supra, last preceding case, p. 462.