There would be great strength in this argument if congress had exercised their power by passing a bankrupt law, because then the uniformity which they were authorized to establish would be broken in upon by the act of an individual

state.

But it is to be considered, whether the power of congress is exclusive even when they do not think proper to exercise it; for thus the matter is at present circumstanced. Antecedent to the adoption of the Federal Constitution, the power of the several states was supreme and unlimited. It follows there. fore, that all power not transferred to the United States, remains in the states and the people, according to their several constitutions. This would have been the sound construction of the constitution without amendment. But the jealousy of those who feared that the federal government would absorb all the power of the states, caused it to be expressly recog nized in the 11th and 12th Articles of Amendment. Supposing then that there has been ceded to congress the exclusive power to regulate the subject of bankruptcy, whenever they shall think it expedient to exercise it, is it to be inferred that the states have debarred themselves from all exercise of power on the same subject when congress do not think it expedi ent to act? I can perceive no just ground for the inference. The exercise of this power by the states under such circumstances, could have no interference with the power delegated to congress, and it would prevent a situation of things very ill suited to the commercial habits of many of the states. For such are the hazards to which those who engage in trade and commerce are unavoidably exposed, that, I believe it has been found necessary, in all commercial countries, to relieve the unfortunate from the burthen of their debts, upon the surrender of all their property. There seem to be but three cases in which the several states have no power to legislate.

1. When they are expressly prohibited.

2. Where exclusive power is expressly vested in the United States.

3. Where the power vested in the United States, is in its nature exclusive.

The subject of bankruptcy does not fall within the first or second of these cases; and if it falls within the third it is only during those times in which Congress exercise their power on the same subject. The states are not to be divested of their power by inference, unless the inference be inevitable. Now that is not the case here. On the contrary the power contended for on behalf of the states, is in perfect harmony with the power granted to congress; a power to legislate on a subject of necessity, at a time when congress do not think it expedient to act.

I think the Constitution has received a practical construction on this point, although I know that the weighty opinion of judge Washington has lately been pronounced to the contrary. Golden v. Prince. 5 Hall, 502.

But to that opinion is opposed the strong argument of the Supreme Court of New-York, in Livingston vs. Van Ingen, in which it was adopted as a principle that in cases where power is affirmatively vested in congress, and not expressly taken away from the states, they may go on to legislate until their laws come in collision with the acts of congress. By practical construction however, I do not mean judicial decision, but practice sanctioned by general consent.

In the same section of the Constitution from which congress derive their power to establish an uniform system on the subject of bankruptcies, they have also given to them the power of fixing the standard of weights and measures. This they have never done, but the states have regulated them at their pleasure, and I believe without question. In the same section also there is granted to congress the power to provide for organizing, arming, and disciplining the militia, and yet all the states have passed laws on those subjects, much to the public benefit, and in harmony with the Acts of Congress. From all these considerations, although I will not say that a case admits of no doubt in which men of great talents have differed,

prohibited expressly by the Constitution; because to say the least of it, it would be setting a very bad example.

But it may be asked by what rule shall the meaning of these words impairing the obligation of contracts be restricted or limited if they are not taken in their full extent. I confess that to lay down a rule which would decide all cases appears to me to be very difficult, perhaps impossible. We may be certain that particular cases are not within the meaning of a law, without being able to enumerate all the cases that are within it. To attempt such enumeration is unnecessary and dangerous, lest some should be omitted. It is safe to decide on each case as it arises. It is probable that so far as respects contracts between individuals, the principal mischiefs which the convention meant to remedy, were those which arose from tender laws, and laws by which creditors who sued for their debts were compelled to take property upon an appraisement. Tender laws are expressly mentioned, yet they would have been included in the general words, for they certainly alter the obligation of the contract. Laws of this kind impair the contract, by giving an advantage to the debtor, without any consideration in favour of the creditor. Bankrupt laws are essentially different. They afford, in many instances, advantages to both debtor and creditor. The debtor is discharged on condition of surrendering his property without delay for the benefit of his creditors. The creditor is often a great loser, but he is sometimes a gainer by the means which are of fered him of compelling the debtor to a full discovery of his property, and obtaining possession of it more quickly than in the usual course of law. The bankrupt system has been adopted in countries the most tenacious of the rights of creditors, of which England and Holland are examples: so that without straining it might be considered as an excepted case, when laws impairing the obligation of contracts were mentioned. So it seems to have struck both individuals and public bodies about the time of the adoption of the Federal Constitution. I well remember, that very soon after its adoption,

the subject was brought before the legislature of Maryland, upon the petition of a gentleman who prayed to be discharged from his debts, on the surrender of his property for the benefit of his creditors. Several members of that legislature had been in the convention by which the Constitution had been recently formed. Doubts were entertained as to the right of the state to pass the law. But the prevailing opinion was in favour of the right, and the petition was granted. From that time to this, Maryland has been in the habit of making such laws. I am not exactly informed how many other states have followed her example, but I understand that Rhode Island and New-York are among the number. Judicial decision is not wanting in favour of such right. Judge Washington, as I have mentioned, is against it. The Supreme Court of New-York were for it in the case of Penniman vs. Meigs. 9 Johns. 325. This court has never decided directly upon the point, but they have discharged, without bail, where persons have been sued here who had been discharged from the obligation of their contracts by laws of other states. I refer to the cases of Hilliard et al v. Greenleaf. 5 Binn. 336, in a note, and Boggs v. Teackle. 5 Binn 332. We are now called upon to decide whether an act of assembly of this commonwealth be void because of its violating the Constitution of the United States. That this court possesses the power, and that it is bound in duty to declare a law void when it violates the Constitution of this state or of the United States, has not been denied by the counsel for the plaintiff. It is a point on which I am well satisfied, but at the same time it is certain that it is a power of high responsibility, and not to be exercised but in cases free from doubt. Such has been the opinion frequently expressed by judges of the highest respectability, in different states, and sanctioned by the Supreme Court of the United States. will not pretend to say that the meaning of that part of the Constitution on which this question arises is clear, but I may safely say that it is doubtful. According to the established principles of construction, therefore, in doubtful cases, I am of No. XXIV.

4 A

opinion that the law of the state is valid. It follows that judgment should be entered for the defendant.

I am authorized to say, and I say it with pleasure, that my brother Duncan is of the same sentiment as the rest of the court, although he gave no formal opinion; not having heard the argument.

INSTRUCTIONS FOR EXECUTING A COMMISSION.

1. The commission may be executed by any

of the commissioners, without the others, but all the commissioners should have notice of the time and place of executing it.

2. Prior to the execution of the commission the commissioners must take the following oath, which may be administered by any person authorised by law to administer oaths, viz.

"You shall, according to the best of your skill and knowledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the commission about to be executed by you upon the interrogatories now produced and left with you, so help you God."

Get a certificate that the person who administered the oath is qualified by law so to do.

3. In case the commissioners think necessary to employ a clerk, the following oath must be administered to him by one of the commissioners, viz.

"You shall truly, faithfully, and without partiality to any or either of the parties in this cause, take and write down, transcribe and engross the depositions of all and every witness and witnesses produced before and examined by the commissioners or any of them, about to be executed, as far