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Article 1, Section 8, Clause 17



Document 14

Commonwealth v. Clary

8 Mass. 72 1811

[Sewall, C. J.:] The defendant was indicted at the Court of Common Pleas for this county, November term, 1809, for selling spirituous liquors within the town of Springfield, in this county, against the form of the statute, &c.

The indictment contained three counts, charging the defendant with three distinct offences in selling rum to three several persons.

Upon a trial had in the court below, he was convicted, and sentenced to pay a fine and costs. From that sentence he appealed to this Court, having agreed on record that, in any future stage of the proceedings, he would admit the selling of the rum, as charged in the first and third counts of the indictment; and the attorney prosecuting for the commonwealth having entered a nolle prosequi as to the second count,

The cause was submitted to the opinion of the Court upon the following facts, stated and agreed by the defendant and the counsel for the commonwealth.

"Before and at the time of the adoption of the constitution of the United States, there were standing in the town of Springfield, and on land owned by said town, divers buildings erected and occupied by the U. S. as arsenals, in which they then had, and always since have had, large quantities of guns and other military stores; and one building erected by the U. S. and occupied by them as a powder magazine. After the passing of the law of the U.S. of April 2d, 1794, providing for the erecting and maintaining of arsenals and magazines, and for other purposes, viz., on the 22d of June, 1795, one N. Patten conveyed certain land on Mill River, in said Springfield, to the then secretary of state, in trust for the U. S., on which they erected, and have ever since maintained, buildings suitable for manufacturing small-arms; and have occupied the same for performing parts of the labor in making small-arms; and ever since the year 1794 have occupied other buildings, near to the said military stores and magazine, for performing other parts of the labor in making small-arms; said last-mentioned buildings having been erected by the U. S. before that time on land owned by the town of Springfield.--On the 14th of May, 1798, the U. S. by law authorized the president, in case he should think proper, to take by lease, or to purchase in fee, lands, and erect founderies for cannon, and armories for making small-arms. On the 25th of June, 1798, a law of this commonwealth passed, giving the consent thereof that the U. S. might purchase a tract of land in Springfield, not exceeding six hundred and forty acres, for the sole purpose of erecting forts, magazines, arsenals, and other needful buildings, the evidence of the purchases to be recorded in the registry of deeds for the county of Hampshire. On the 19th of September, 1798, John Ashley, by his deed duly recorded as aforesaid, conveyed to the U. S. in fee a parcel of land on Mill River, so called, in said Springfield, on which the U. S. the same year erected, and have ever since kept and occupied, large and suitable buildings and machinery for making small-arms. On the 24th of August, 1801, the said town of Springfield, by their deed duly recorded as aforesaid, conveyed to the U. S. a parcel of land in said town, on which the military stores before mentioned then stood, on which also then stood divers other buildings, some of which, ever since the year 1794, have been occupied by the U. S. for the manufacture of small-arms, and also another small piece of land, on which then stood and still stands the said powder magazine. On the 9th of January, 1809, James Byers, by his deed duly recorded, conveyed to the U. S. another parcel of land in said town, lying also on Mill River aforesaid, on which, before the time of committing the supposed offence alleged in the indictment, there were erected by the U. S. divers buildings suitable for the manufacture of small-arms, and several dwelling-houses occupied by the artificers employed in the said manufactures by the U. S. The said several parcels of land are separate and distant from each other, and do not contain in the whole 640 acres; and a line may be so drawn as to enclose the whole of them, and not to contain within the same more than 640 acres. The said parcels of land lying on Mill River have not been occupied by the U. S. as arsenals, but as parts of an armory; and the two pieces conveyed by the town of Springfield have, ever since the year 1794, been occupied by the U. S. as well for arsenals and magazines as for parts of an armory.

The said Clary, at the several times set forth in the first and third counts of the indictment, did sell, as therein mentioned, to the several persons therein named, the said spirituous liquors, without license therefor first had and obtained from the Court of Common Pleas for said county. But he was at the said several times employed as an overseer of one of the water-shops owned by the U. S., and sold the said liquors in a dwelling-house erected by the U. S. on the said land purchased by them of James Byers, to the said persons, by the permission and approbation of Benjamin Prescott, superintendent of the armory of the U. S. in Springfield."

If the Court, upon the whole matters aforesaid, are of opinion that the said Clary is guilty, as charged in the first and third counts of the indictment, judgment was to be rendered thereon against him; otherwise he was to be acquitted and discharged.

The defence relied on was, that the offence charged was committed within a territory over which the laws of the United States had exclusive jurisdiction; that the laws of the commonwealth had no operation therein; and of consequence that the defendant was not bound to answer for the offence in the courts of the commonwealth.

. . . . .

On the facts agreed in this case we are of opinion, that the territory, on which the offence charged is agreed to have been committed, is the territory of the United States, over which the congress have the exclusive power of legislation. The assent of the commonwealth to the purchase of this territory by the United States, had this condition annexed to it--that civil and criminal process might be served therein by the officers of the commonwealth. This condition was made with a view to prevent the territory from becoming a sanctuary for debtors and criminals; and from the subsequent assent of the United States to the said condition, evidenced by their making the purchase, it results that the officers of the commonwealth, in executing such process, act under the authority of the United States. No offences committed within that territory, are committed against the laws of this commonwealth; nor can such offences be punishable by the courts of the commonwealth, unless the congress of the United States should give to the said courts jurisdiction thereof.

As a consequence of these positions, it is the opinion of the Court, that they have no cognizance of the offences charged in this indictment, and that the defendant must be discharged.

An objection occurred to the minds of some members of the Court, that if the laws of the commonwealth have no force within this territory, the inhabitants thereof cannot exercise any civil or political privileges, under the laws of Massachusetts, within the town of Springfield. We are agreed that such consequence necessarily follows; and we think that no hardship is thereby imposed on those inhabitants; because they are not interested in any elections made within the state, or held to pay any taxes imposed by its authority, nor bound by any of its laws.--And it might be very inconvenient to the United States to have their laborers, artificers, officers, and other persons employed in their service, subjected to the services required by the commonwealth of the inhabitants of the several towns.

It will be noticed, that in this decision we make a distinction between persons who actually dwell within the territory owned by the United States, and the laborers and artificers employed therein, who have their dwelling elsewhere.


The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 17, Document 14
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