702 



FARMERS' REGISTER. 



[No. 11 



the 20th of April, 1837, declared that no licensed 

 innholder or other person should sell any intoxicat- 

 ing liquor on Sunday, under the penalty of ft'20; 

 and that if any person should have been three 

 times convicted of a breach of the act, or of the 

 47th chapter of the Revised Statutes, he should be 

 liable to severe specified penalties and punishment. 

 It is to be observed, that the 47th chapter referred 

 to, has iwenty-nine sections, and several distinct 

 offences and penalties are declared in it, all rela- 

 tive to the regulation of licensed and selling of 

 spirituous liquors. 



I have attentively considered the first question, 

 and 1 have satisfied myself that the statute of last 

 April, therein mentioned, is not repiisnant to the 

 constiiution or laws of the United Slates. lam 

 of opinion, that the statute in question relates to 

 the internal police and government of the com- 

 monwealth of Massachusetts, and that it was 

 competent for the legislature to pass it. The go- 

 vernment and laws of the United Slates have'no 

 concern with the internal regulations of the states. 

 These regulations belong exclusively to the power 

 and authority of the state governments, and they 

 may pass what sumptuary laws they please in re- 

 straint of the interior commerce o.*" the state, and 

 'of the manners and habits of the residents there- 

 in. All such regulations, however stern they 

 may be, rest entirely on the wisdom and sense of 

 expediency and policy of the local legislature, pro- 

 vided they be consistent with the constitution of 

 the state. 



In the case of Brown vs. The State of Maryland, 

 (12 Vyheaton, 419,) the validity of a stale law, in 

 restraint of the importation laws and foreign com- 

 merce of the United States, was fully discussed 

 and considered. The doctrine of that case was, 

 that a state legislature could not impose a tax on 

 rgoods imported, ivhile the goods tvere in the hands 

 .■■qf the importer, and in bulk, and that a right to 

 import the article under the laws of congresli, and 

 a payment of the duty, carried with it a right to 

 sell it, free of any previous charge, or duty, or tax 

 thereon laid by the state while iri possession of the 

 importer. But the case admitted that aller the ar- 

 ticle had been sold, or passed into the hands of the 

 ■retail dealer, and became incorporated with the 

 general mass of property, it was subject in all re- 

 spects to state regulation. It seemed to be con- 

 ceded in the arguments in that case, that a power 

 in the state to control the use of the article after it 

 liad passed out of the hands of the importer, would 

 greatly and essentially affect the right of the im- 

 :.porter to import, for who would purchase of the 

 importer, if he could not afterwards use and dis- 



general superintending discretion of the stale go- 

 vernments, as part ol" their own constitutional con- 

 trol over their own internal trade and dealings, 

 and customs. 



I consider this to be the doctrine of the cases of 

 Gibbons vs. Ogden and of Brown vs. JVie State of 

 Maryland, both of which were decided under the 

 liberal and sound judgment of Chief Juslice Mar- 

 shall; and I am persuaded that the act of Massa- 

 chusetts of April last would have been regarded 

 b)' the supreme court, when they decided the case 

 of Brown, as entirely free from constitutional ob- 

 jection, for that statute does not touch the import- 

 er, except very indirectly. It only goes to restrain 

 the retail ofspiriluous liquors under the quantity 

 offilleen gallons at a time, and it evidently assumes 

 that the article has passed irom the imjjorter mto 

 the mternal commerce of the country. The im- 

 porter may sell in that quantity and upwards at 

 home, or lor exportation to other states. 



And if the case was doubtful under the decision 

 in the case of Brown, yet there is a more lax con- 

 struction on state authority in the late case of 

 New York vs. 3Iiln. (11 Peters, 1839.) There 

 the court repeat all the exceptions in lavor of state 

 control over imported articles, mentioned in the 

 former cases, and show a decided leaning in their 

 favor. They go so far as to say that a state law 

 which concerns the welfare of the people within a 

 stale, and relates to their duties as men and citi- 

 zens, and to persons and things within ils jurisdic- 

 tion, is a regulation concerning the internal police 

 of a state. No doubt the sumptuary law in ques- 

 tion, prohibiting the sale ofspiriluous liquors, fall.s 

 within the rightful cognizance of the state govern- 

 ments according to the doctrines of the supreme 

 court ofthe United States, and I am very decided- 

 ly of the opinion that it would be fruitless to ap- 

 peal to the supreme court of the United States 

 against a decision of the supreme judicial court of 

 Massachusetts in favor of the validity of the state 

 law. 



2. As I am of opinion that the act of April 1838 

 is not against the constitution or laws of the 

 United States, the second question becomes unne- 

 cessary. Yet as the gentlemen who have done 

 me the honor to consult me, may still be disposed 

 to fry the experiment, I should in that case advise, 

 that whenever a suit is brought for a penally for 

 selling contrary to the act, that the defendant de- 

 mur to the bill or declaration, or set up by way of 

 defence that the act is repugnant lo the constitu- 

 tion of the United States, and if overruled, as he 

 would be, that he appeal to the supreme judicial 

 court ofthe state, and if the judgment against him 



pose of the article? But this was a consequence be affirmed, as it would be, that he then, under the 

 that could not be avoided, without going too far 

 in the denial of the right of the states'to r'egulale, 

 in their discretion, the internal commerce "of the 

 state. It was admitted by the court in the case of 

 Gibbons vs. Ogden, (9 Wheaton 203,) that state 

 inspection laws, health laws, and laws lor regula- 

 ting the internal commerce ofthe slate, &c., were 

 not within the power granted to congress. We 

 may add that the power regulating auction sales, 

 and hawkers and pedlers, and markets, are all 

 within the discretionary power ofthe state legisla- 

 ture, as much as the power concerning the sale of 

 lottery tickets, or the preservation of the health 

 and morals of the citizens, by interlijring with the 

 sale of obnoxious articles. These and a thousand 

 other cases that might be put, all fall within the 



direction of the counsel who has conducted this 

 defence, appeal by writ of error to the supreme 

 court of the United States, and a decision there 

 will put an end to all litigation on the subject. 



James Kent." 



^^ew York, May 12, 1838. 



If this opinion is tenable, we may lay a tax on 

 foreign goods coming coastwise or in any way in- 

 direct to our state, except they be in original 

 packages and on the importer's account; and we 

 may do the same in regard to our American ma- 

 nufiactures, which now pay tribute to indirect 

 routes, all of which rights we may and should ex- 

 ercise in virtue of our sovereignty over our territo- 

 ry and population. 



Your committee see no objection to the im- 



