
    OCTOBER TERM, 1790.
    Joseph Donaldson against David Harvey.
    THIS was ¿¡.fieri facias, issued out of this court on the 3 7th July, 1790, directed to the sheriff of Washington county, who, at the return, day, certified that the defendant had showed and delivered, to him, upon o.ath, certain lands, tenements, goods and chattels, which were appraised to nearly the amount of the debt, and that he was ready to convey the same to the plaintiff, in discharge of the debt.
    Motion was made on the part of the plaintiff, to set. aside the return on the fieri facias, and that a venditioni exponas issue.
    The question for the court was, whether the act of assembly of 1716, c. 16. relating to the execution of a fieri facias, was repealed by the federal constitution.
    A. Johnston, for the plaintiff.
    In order fully to consider this case, it will be necessary, 1st, to examine what, was the effect of the fieri facias at common law.
    At common law it lay only against the goods and chattels, which the sheriff was ordered to sell, and bring the money into court, but could not deliver the goods to the plaintiff. 1 Ld. Raym. 346. Cro. Eliz. 504. 1 Vez. 196. The sheriff was not obliged to return the writ unless at the instance and motion of the plaintiff. If he had not made the debt, his return in that case was, that the goods remained in his hands for want of buyers, and then, a venditioni exponas issued, to compel him to sell. If the sheriff took more goods than were sufficient to pay the debt, a writ of restitution lay, to compel him to ye-store the surplus; and if the property taken could not he divided and sold for more than the debt, he was compellable to restore the money. Thus it stood, until,
    2. The act of assembly, 1716, c. 16. whereby the debtor was enabled to deliver up his personal estate at an appraisement, and the sheriff is required to take and deliver so much of the said goods, as, according to such appraisement, will amount unto the debt, damages, and costs in the execution. Thus stood the law respecting chattels. Real property was not then liable to be taken by a fieri facias.
    
    3. Then came the statute of Geo. which made all lands in America liable to the payment of debts of British creditors, in the same manner as chattels were. This at first introduced thefieri facias at common law, to have force and operation on real property, ancf the judges, by an equitable construction, in furtherance of justice, placed all creditors on the same footing, and extended this statute to creditors here, as well as British creditors, so that real estates might be delivered in the same manner as chattels.
    4. Thus it stood until the federal constitution, which, I contend, repealed the act of 1716.
    It was the intention of this constitution to bring forward one uniform system, in this respect, to pervade the whole union. The convention had seen that particular states had made laws with respect to the payment of debts, which were extremely injurious, unjust and oppressive. In some states, a paper currency, greatly depreciated. In some, lands, far distant from inhabitants; and in some, both these might be forced on the creditor for the payment of an honest debt. ' This destructive practice, countenanced by laws, naturally tended to destroy that credit which a great commercial nation ought always to encourage and protect. It was necessary for the prosperity of this country, to open every avenue to trade, and to compel all persons to a punctual performanee of their contracts, which could never be effectually done, unless the payments were universally in specie; and this, I apprehend, has been done by the federal con-' stitution. Art. 1. s. 10. “ No staté shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or' law impairing the obligation of contracts, or grant any title of nobility.”
    To give this article a reasonable construction, it must extend to every state in the union, and must not only prevent future acts, but repeal all existing laws which in the smallest degree contradicts the same ; and to give it any other construction, would be directly repugnant to the spirit and intent of the constitution, and would greatly operate against that state where such laws were continued. You shall make nothing but gold or silver coin a tender in payment of debts, or lato impairing the obligation of contracts. But you have made it already by the act of 1716, and that being a perpetual law, you will for ever be subject to the evil that was intended to be remap ved.
    The constitution of the. United States has, no doubt, before this, been examined by every nation in Europe. To the trading part of the world it is of the utmost consequence that this article should have a liberal construction, and that the payment of debts, and performance of contracts, should be strictly adhered to. Suppose every other state in the union should comply with this article, and this state only should continue the act of 1716, would not this everywhere injure the trade of this state, when it should be known that we only might pay our debts in goods or lands, for which the creditor might have no use, when others paid in specie. The conseáúehce is too obvious ; the trade would go elsewhere, or , _ . , , we could not carry it on to equal advantage.
    It may be said the constitution meant debts hereafter to be contracted. But the words are general, and the grammatical sense of them contrary to such construction. Can any reason be assigned why the creditor, who had long indulged the debtor, and was obliged at last to sue for his debt, should be in a worse situation than in the case of a debt contracted within this two years. Reason, justice, and a true regard to our national interest, declares the contrary, and says, that equal justice should be distributed to all.
    Should it be said that it may have relation only to such cases that may, by possibility, be the object of federal jurisdiction ; I answer, that such a construction is contrary to justice, policy, and the rule the court observed in the extension of the statute of George. Equal justice is to be done to every individual, and one universal rule of right must, in sound policy, pervade the union.
    To continue this act any longer, is the same, in effect, as a new law made in direct contradiction to the federal constitution. Does it make any difference, in this case, whether it is the one or the other, if the effects are the same ? I apprehend they are to be considered as substantially the same. The article says, that no laws are to be made, to make any thing a tender in the payment of debts, but gold or silver coin, or to impair the obligation of contracts. The act of 1716 directly contradicts both these articles. It says either that the creditor may be paid with goods or lands, or both, at an appraisement. The debt is a sum of money. The contract, obligation, or agreement, is to be paid in gold or silver, perhaps of a particular denomination. This law, if continued, changes the nature of the contract, and impairs it by forcing the creditor to take what is contrary to it.
    When this law was first made, it only related to personal property. Trade was then in its infancy. We had no intercourse with foreign nations. The British dominions were the only places we could trade to, and that trade was much confined; it must, therefore, have been chiefly intended to discharge small debts, mostly in our dealings with each other, and the statute forced the extension to real property.
    The revolution has entirely changed the scene. A free intercourse with all nations is opened. Foreigners of all denominations are invited to our ports. The laws of trade, and punctual discharge of our debts and performance of contracts are now to be encouraged and enforced, which latter, under this law, cannot be done.
    Suppose a foreigner, not naturalized, commences a suit here for a large sum of money, and on a fieri facias under this law, lands are appraised and returned by the sheriff as ready to be conveyed to him. What is to be done in this case ? Can he take a conveyance of it ? No. He cannot hold real property, and while this law exists he cánnot be paid in any other manner; so that he must lose his debt. Is this any way consistent with the character of ajust people ? and is it not contrary to sound policy, as it applies to a trading nation ? How contrary to this have other nations acted. The English, in the infancy of their trade, made laws to secure the property of foreigners. By an article in magna charta, the property of foreign traders, on a war with their nation, is secured to them. And the first laws whereby real property could be taken in execution and sold by statute merchant and statute staple, were made entirely in favour of trade, even before a judgment of any other sort was a lien upon lands.
    As, therefore, this act operates contrary to the uniform system of the union, and to the federal constitution; as it puts this state in a worse situation than any other in the union ; as it is destructive of commerce ; as manifest injustice may be done by it, and as it is contrary to sound policy and that universal rule of right which should pervade this country. I therefore move that the valuation in this case may be set aside, and a venditioni exponas ordered to the sheriff to sell the property.
    
      Cooke, for the plaintiff.
    It is laid down by writers on government, that laws of an inferior jurisdiction must give way to a superior. The new constitution is the supreme law, a general regulation which pervades the whole union, and the act of assembly is repugnant to it.
    The statute of George was not extended to the citizen^ of the state in some of the states. Executions must affect the citizens alike in all the states. The reason for extending the statute of George, was to prevent subjects residing in Great Britain from having a preference over subjects in Maryland.
    
    
      Potts, for the defendant.
    This is á mere question of construction. The constitution of the general government provides that no ex post facto law shall be made. According to their construction, they make the constitution do what the states are prohibited from doing. Its provisions can only apply to debts contracted since the adoption of the government, its effects as to future contracts are admitted. There was no dealings with foreigners before the adoption of the constitution. The case of foreigners are provided for by the treaty. A fieri facias from the federal courts cannot affect lands until provision is made by law for that purpose. A suit in the federal courts is to be governed by the laws of the state where the contract was made. Instance the case of descent, where the laws are different in the several states. There is no reason for extending the provision of the constitution beyond the letter,
    
      Mercer, for the defendant.
    Laws enacted by the states relating to subjects over which the federal government have exclusive jurisdiction, .exist until the federal go-» vernment does act on those subjects. The fieri facias law does not make lands and goods a tender in pay-, ment of debts. Qne who will affect lands by fieri facias must submit to all the inconveniences which may attend that remedy.
    Kilty, for the defendant.
    No power is to be exercised but what is expressly given by the people to the general government. The people ought to know whether an act of assembly has been repealed or not. If the act in question is repealed by the constitution, it must be a constructive repeal.
    In the judiciary bill no mode of executing judgments is prescribed ; execution must, therefore, be pursuant to, the laws of the several states. Congress has the power, of making bankrupt laws. Are all the laws in the states relating to that subject repealed on that account?
    
      fenings, for the defendant.
    The constitution does not. repeal the law as to antecedent debts ; but it does as to all subsequent debts. There may be an ex post facto law in civil, but not in criminal cases. A construction which will give a law a retrospective operation is not to. be favoured, and will be rejected if any other can be 'adopted. If a will had been executed before the passing of the statute of frauds, and the death of the testator happened after it, it is not necessary that the will should have all the solemnities required by that statute,
   J. T. Chase, J.

This is a motion to set aside the return, on the fieri facias, issued in this case, and for a venditioni exponas ; and the question is, whether the act of assembly of It 16, c. 16. relating to the execution of a, fieri facias, is repealed by the federal government.

In the 8th sect, of 1st art. of the constitution of the United States, the powers of congress are defined, andx after enumerating particular subjects over which they áre to exercise exclusive legislation, a power is given to make all laws necessary for executing the powers vested by the constitution, in the government of the United States, or in any department or officer thereof.

By the 9th sect, congress is prohibited from doing certain acts 5 from passing bills of attainder, or ex post facto laws, fkc.

By the 10th sect, the states are prohibited from doing certain acts j the words are in the future tense. The word shall runs through the whole clause. According to the natural and plain import of the words, they are evidently a restriction on the power of the states to do the acts enumerated.

Attention to a few well established principles will elucidate this question, and lead to a right decision.

Congress has no power but what is expressly delegated to them by the new government. The states retain all power not delegated, and from the exercise of which they are not restrained by the new government

In expounding the federal constitution, the same rules will be observed which are attended to in the exposition of a statute. If words are plain and without ambiguity, the court will give a construction correspondent to their plain import and signification. If the words are ambigu.ousj the court will expound them according to the intention of the makers, to be collected from the whole instrument, and inconveniences resulting from the one construction or the other will be regarded.

In this case the words are, “ no state shall make any thing but gold and silver coin a tender in payment of debts.” The meaning of these words, considered abstractedly, is very obvious, and nothing more than a restriction of the power of the state legislature to make such laws.

The Court determined, that the constitution of the United States did not repeal the act of 1716, c. 16. as to antecedent debts.

The motion did not prevail.  