The Act of Assembly of Kentucky of 21 December, 1821, which
prohibits the sale of property taken under executions for less than
three-fourths of its appraised value without the consent of its
owner, does not apply to a
venditioni exponas issued out
of the Circuit Court for the District of Kentucky.
The laws of the United States authorize the courts of the Union
so to alter the form of the process of execution used in the
supreme courts of the states in 1789 so as to subject to execution
lands and other property not thus subject by the state laws in
force at that time.
This cause was argued at the last term, by the same counsel with
the preceding case of
Wayman v. Southard, (
ante,
23 U. S. 1) and
continued to the present term for advisement.
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes up on a division of opinion of the judges of the
Circuit Court of the United States for the District of Kentucky,
upon a motion there made to quash the return of the marshal upon a
venditioni exponas issued in this cause. The writ
commanded the marshal to expose to sale certain articles of
property therein particularly specified, and, among other things,
two hundred acres of land of Abraham Venable, one of the
defendants. The marshal, in his return, states substantially that
he had exposed to
Page 23 U. S. 52
sale, for cash, the lands mentioned in the writ, no endorsement
having been made on the execution, to receive in payment certain
bank notes, according to the provision of the laws of Kentucky.
That the lands had been valued at $26 per acre, and, upon the offer
for sale, no more than $5 per acre was bid, which not being
three-fourths of the appraised value, the land was not sold,
thereby conforming his proceedings under the
venditioni
exponas to the directions of the law of Kentucky of 21
December, 1821, which prohibits the sale of property taken under
executions, for less than three-fourths of its appraised value,
without the consent of the owner.
The motion in the court below was to quash this return and to
direct the marshal to proceed to sell the land levied upon, without
regard to the act above referred to. Upon this motion, the judges,
being divided in opinion, have, according to the provisions of the
act of Congress in such cases, certified to this Court the
following questions:
1. Whether the said act of the General Assembly of Kentucky,
when applied to this case was or was not repugnant to the
Constitution of the United States, and,
2. Whether, if it were not repugnant to the Constitution, it
would operate upon, and bind and direct the mode in which the
venditioni exponas should be enforced by the marshal, and
forbid a sale of the land levied upon unless it commanded
three-fourths of its value when estimated
Page 23 U. S. 53
according to the provisions of the said act.
In examining these questions, I shall invert the order in which
they have been certified to this Court, because if the law does not
apply to the case so as to regulate and govern the conduct of the
marshal, it will supersede the necessity of inquiring into its
constitutionality.
It ought to be borne in mind that this law does not profess, in
terms, to extend to marshals or to executions issued out of the
courts of the United States, and it is only under some general
expressions that either can by possibility be embraced within the
law. And it ought not, in justice to the legislature, to be
presumed that it was intended, by any general terms there used to
regulate and control that over which it is so manifest they had no
authority.
It cannot certainly be contended with the least color of
plausibility that Congress does not possess the uncontrolled power
to legislate with respect both to the form and effect of executions
issued upon judgments recovered in the courts of the United States.
The judicial power would be incomplete and entirely inadequate to
the purposes for which it was intended if, after judgment, it could
be arrested in its progress and denied the right of enforcing
satisfaction in any manner which shall be prescribed by the laws of
the United States. The authority to carry into complete effect the
judgments of the courts necessarily results by implication from the
power to ordain and establish such courts.
Page 23 U. S. 54
But it does not rest altogether upon such implication, for
express authority is given to Congress to make all laws which shall
be necessary and proper for carrying into execution all the powers
vested by the Constitution in the government of the United States
or in any department or officer thereof. The right of Congress,
therefore, to regulate the proceedings on executions and direct the
mode and manner and out of what property of the debtor satisfaction
may be obtained is not to be questioned, and the only inquiry is
how far this power has been exercised. The critical review taken by
THE CHIEF JUSTICE of the various laws of the United States in the
opinion delivered in the case of
Wayman v. Southard, ante,
p.
23 U. S. 1, very much
abridges an examination that might otherwise have been proper in
this case. The result of that opinion shows that Congress has
adopted, as the guide for the courts of the United States, the
processes which were used and allowed in the supreme courts of the
several states in the year 1789. That the 34th section of the
Judiciary Act, which requires that the laws of the several states
shall be regarded as rules of decision in trials on common law in
the courts of the United States, has no application to the practice
of the courts, or in any manner calls upon them to pursue the
various changes which may take place from time to time in the state
courts with respect to their processes and modes of proceeding
under them. The principal
Page 23 U. S. 55
inquiry in this case is whether the laws of the United States
authorize the courts so to alter the form of the process of
execution, which was in use in the supreme courts of the several
states in the year 1789, as to uphold the
venditioni
exponas issued in this cause. In the year 1792, when the
Process act of 1789 was made perpetual, land in the State of
Kentucky could not be taken and sold on execution; a law, however,
subjecting lands to executions, was passed shortly thereafter in
the same year, and the question now arises whether the Circuit
Court of the United States for the Kentucky District could so alter
the process of execution as to authorize the seizure and sale of
land by virtue thereof.
For the decision of this question, it is necessary again to
recur to some of the acts of Congress which were under
consideration in the case referred to for the purpose of
ascertaining whether they do not provide as well for the effect and
operation as for the form of process.
By the 14th section of the Judiciary Act, 2 L.U.S. 62, power is
given to the courts of the United States to issue a writ of
scire facias, habeas corpus, and all other writs not
specially provided for by statute which may be necessary for the
exercise of their respective jurisdictions and agreeable to the
principles and usages of law. That executions are among the writs
hereby authorized to be issued cannot admit of a doubt; they are
indispensably necessary for the beneficial exercise of the
jurisdiction of the courts, and in subsequent parts of the act
Page 23 U. S. 56
this writ is specifically named as one to be used, and the
control which the court, in certain cases, is authorized to
exercise over it is pointed out. The precise limitations and
qualifications of this power under the terms agreeable to the
principles and usages of law is not, perhaps, so obvious. It
doubtless embraces writs sanctioned by the principles and usages of
the common law. But it would be too limited a construction, as it
respects writs of execution, to restrict it to such only as were
authorized by the common law.
It was well known to Congress that there were in use in the
state courts writs of execution other than such as were conformable
to the usages of the common law. And it is reasonable to conclude
that such were intended to be included under the general
description of writs agreeable to the principles and usages of law.
If it had been intended to restrict the power to common law writs,
such limitation would probably have been imposed in terms. That it
was intended to authorize writs of execution sanctioned by the
principles and usages of the state laws is strongly corroborated by
the circumstance that the Process Act, passed a few days
thereafter, adopts such as the only writs of execution to be used.
Can it be doubted but that under the power here given in the
Judiciary Act, the courts of the United States in those states
where lands were liable to be taken and sold on execution would
have been authorized to issue a like process? But under this act,
the courts are not restricted to the kind of process used in the
state
Page 23 U. S. 57
courts, or bound in any respect to conform themselves thereto.
This latitude of discretion was not deemed expedient to be left
with the courts, and the act of 29 September, 1789, 2 L.U.S. 72,
entitled, "An act to regulate processes in the courts of the United
States," modifies and limits this power. So far as is material to
the present inquiry, it declares that the forms of writs and
executions and modes of process in the circuit and district courts
in suits at common law shall be the same in each state respectively
as are now used or allowed in the supreme courts of the same. The
form of the writ contains substantially directions as to what is to
be done under it. Whether mesne or final process, it is on its face
so shaped and moulded as to be adapted to the purposes for which it
is intended. This act therefore adopts the effect as well as the
form of the state processes, and as these were various in the
different states, it goes further and adopts the modes of process
which must include everything necessary to a compliance with the
command of the writ. The effect and operation of executions must,
of course, vary in the different states according to the different
forms which were used and allowed. The mode of proceeding where
lands, for instance, were liable to be taken and sold on execution
was different from that which would be necessary where they were
only liable to be extended under an
elegit. It was
therefore necessary to adopt the modes of process if the process
itself was adopted. This act was temporary, and continued
Page 23 U. S. 58
from time to time, until the permanent law of 8 May, 1792, 2
L.U.S. 299, was passed, the second section of which, so far as
relates to the second question, declares that the forms of writs,
executions, and other process, except their style, and the forms
and modes of proceeding in suits of common law in the courts of the
United States, shall be the same as are now used in the said courts
in pursuance of the act entitled "An act to regulate processes in
the courts of the United States." This section then goes on to
prescribe the rules and principles by which the courts of equity
and of admiralty and maritime jurisdiction were to be governed, and
then follows this provision:
"subject, however, to such alterations and additions, as the
said courts respectively shall, in their discretion, deem
expedient, or to such regulations as the Supreme Court of the
United States shall think proper from time to time, by rule, to
prescribe to any circuit or district court concerning the
same."
There can be no doubt that the power here given to the courts
extends to all the subjects in the preceding parts of the section
and embraces as well the forms of process and modes of proceeding
in suits of common law as those of equity and of admiralty and
maritime jurisdiction. It will be perceived that this act
presupposes that, in point of practice, the several courts of the
United States had carried into execution the provisions of the act
of 1789, and had adopted the forms of process and modes of
proceeding thereon which were then usual and
Page 23 U. S. 59
allowed in the supreme courts of the respective states, and it
ratifies and continues such practice and extends it to all the
proceedings in suits. This course was no doubt adopted as one
better calculated to meet the views and wishes of the several
states than for Congress to have framed an entire system for the
courts of the United States varying from that of the state courts.
They had in view, however, state systems then in actual operation,
well known and understood, and the propriety and expediency of
adopting which they would well judge of and determine. Hence the
restriction in the act now used and allowed in the supreme courts
of the several states. There is no part of the act, however, that
looks like adopting prospectively, by positive legislative
provision, the various changes that might thereafter be made in the
state courts. Had such been the intention of Congress, the
phraseology of the act would doubtless have been adapted to that
purpose. It was nevertheless foreseen that changes probably would
be made in the processes and proceedings in the state courts which
might be fit and proper to be adopted in the courts of the United
States, and, not choosing to sanction such changes absolutely in
anticipation, power is given to the courts over the subject with a
view, no doubt, so to alter and mould their processes and
proceedings as to conform to those of the state courts as nearly as
might be consistently with the ends of justice. This authority must
have been given to the courts for some substantial and
beneficial
Page 23 U. S. 60
purpose. If the alterations are limited to mere form, without
varying the effect and operation of the process, it would be
useless. The power here given in order to answer the object in view
cannot be restricted to form, as contradistinguished from
substance, but must be understood as vesting in the courts
authority so to frame, mould, and shape the process as to adapt it
to the purpose intended.
The general policy of all the laws on this subject is very
apparent. It was intended to adopt and conform to the state process
and proceedings as the general rule, but under such guards and
checks as might be necessary to insure the due exercise of the
powers of the courts of the United States. They have authority,
therefore, from time to time to alter the process in such manner as
they shall deem expedient, and likewise to make additions thereto,
which necessarily implies a power to enlarge the effect and
operation of the process. The exercise of this power is, to be
sure, left in the discretion of the court, but the object and
purpose for which it is given is so plainly marked that it is
hardly to be presumed the courts would omit carrying it into
execution without some substantial reason. And the better to insure
this, authority is given to this Court to prescribe to the circuit
and district courts such regulations on the subject as it shall
think proper. And should this trust not be duly and discreetly
exercised by the courts, it is at all times in the power of
Congress to correct the evil by more specific legislation. But so
long as
Page 23 U. S. 61
the courts of the United States shall make such alterations or
additions in their process of execution as only to reach property
made subject to execution from the state courts, there would seem
to be no just ground for complaint. When, therefore, the law of
Kentucky made land subject to executions, it was carrying into
effect the spirit and object of the act of Congress for the circuit
court so to alter and add to the form of its execution as to
authorize the taking and selling the debtor's land.
It is said, however, that this is the exercise of legislative
power, which could not be delegated by Congress to the courts of
justice. But this objection cannot be sustained. There is no doubt
that Congress might have legislated more specifically on the
subject and declared what property should be subject to executions
from the courts of the United States. But it does not follow that
because Congress might have done this, it necessarily must do it,
and cannot commit the power to the courts of justice. Congress
might regulate the whole practice of the courts if it was deemed
expedient so to do, but this power is vested in the courts, and it
never has occurred to anyone that it was a delegation of
legislative power. The power given to the courts over their process
is no more than authorizing them to regulate and direct the conduct
of the marshal, in the execution of the process. It relates,
therefore, to the ministerial duty of the officer, and partakes no
more of legislative power than that discretionary authority
entrusted
Page 23 U. S. 62
to every department of the government in a variety of cases.
And, as is forcibly observed by the Court in the case of
Wayman
v. Southard, the same objection arises to delegating this
power to the state authorities as there does to entrusting it to
the courts of the United States. It is as much as delegation of
legislative power in the one case as in the other. It has been
already decided in the case referred to that the 34th section of
the Judiciary Act has no application to the practice of the courts
of the United States so as in any manner to govern the form of the
process of execution. And all the reasoning of the Court which
denies the application of this section to the form applies with
equal force to the effect or extent and operation of the process.
If, therefore, Congress has legislated at all upon the effect of
executions, it has either adopted and limited it to that which
would have been given to the like process from the supreme courts
of the respective states in the year 1789 or have provided for
changes by authorizing the courts of the United States to make such
alterations and additions in the process itself as to give it a
different effect.
To limit the operation of an execution now to that which it
would have had in the year 1789 would open a door to many and great
inconveniencies which Congress seems to have foreseen and to have
guarded against by giving ample powers to the courts so to mould
their process as to meet whatever changes might take place. And if
any doubt existed whether the act of 1792 vests such power in the
courts or with respect to its constitutionality,
Page 23 U. S. 63
the practical construction heretofore given to it ought to have
great weight in determining both questions. It is understood that
it has been the general if not the universal practice of the courts
of the United States so to alter their executions as to authorize a
levy upon whatever property is made subject to the like process
from the state courts, and under such alterations, many sales of
land have no doubt been made which might be disturbed if a contrary
construction should be adopted. That such alteration, both in the
form and effect of executions, has been made by the Circuit Court
for the District of Kentucky is certain from the case now before
us, as, in 1789, land in Kentucky could not be sold on execution.
If the court, then, had the power so to frame and mould the
execution in this case as to extend to lands, the only remaining
inquiry is whether the proceedings on the execution could be
arrested and controlled by the state law. And this question would
seem to be put at rest by the decision in the case of
Wayman v.
Southard.
The law of Kentucky, as has been already observed, does not in
terms profess to exercise any such authority, and if it did, it
must be unavailing. An officer of the United States cannot, in the
discharge of his duty, be governed and controlled by state laws any
further than such laws have been adopted and sanctioned by the
legislative authority of the United States. And he does not in such
case act under the authority of the state law, but under that of
the United States
Page 23 U. S. 64
which adopts such law. An execution is the fruit and end of the
suit, and is very aptly called the life of the law. The suit does
not terminate with the judgment, and all proceedings on the
execution are proceedings in the suit and which are expressly, by
the act of Congress, put under the regulation and control of the
court out of which it issues. It is a power incident to every court
from which process issues, when delivered to the proper officer, to
enforce upon such officer a compliance with his duty and a due
execution of the process according to its command. But we are not
left to rest upon any implied power of the court for such authority
over the officer. By the 7th section of the Act of 2 March, 1793, 3
L.U.S. 367, it is declared, that
"It shall be lawful for the several courts of the United States,
from time to time, as occasion may require, to make rules and
orders for their respective courts directing the returning of writs
and processes, &c., and to regulate the practice of the said
courts respectively in such manner as shall be fit and necessary
for the advancement of justice, and especially to the end to
prevent delays in proceedings."
To permit the marshal in this case to be governed and controlled
by the state law is not only delaying, but may be entirely
defeating, the effect and operation of the execution, and would be
inconsistent with the advancement of justice.
Upon the whole, therefore, the opinion of this Court is that the
circuit court had authority to alter the form of the process of
execution so as
Page 23 U. S. 65
to extend to real as well as personal property when, by the laws
of Kentucky, lands were made subject to the like process from the
state courts, and that the act of the General Assembly of Kentucky
does not operate upon and bind and direct the mode in which the
venditioni exponas should be enforced by the marshal, so
as to forbid a sale of the land levied upon unless it commanded
three-fourths of its value according to the provisions of the said
act, and that, of course, the return of the marshal is
insufficient, and ought to be quashed. This renders it unnecessary
to inquire into the constitutionality of the law of Kentucky.
CERTIFICATE. This cause came on to be heard on the transcript,
&c., and the points on which the judges of the Circuit Court of
the United States for the Seventh Circuit and District of Kentucky
were divided in opinion and which were, in pursuance of the act of
Congress in that case made and provided, adjourned to this Court
and was argued by counsel. On consideration whereof this Court is
of opinion that the act of the General Assembly of Kentucky
referred to in the said questions cannot operate upon, bind, and
direct the mode in which the said
venditioni exponas
should be enforced by the marshal and forbid a sale of the land
levied upon unless it commanded three-fourths of its value when
estimated according to the provisions of the said act, and that
this opinion renders it unnecessary to decide whether the said act
is or
Page 23 U. S. 66
is not, repugnant to the Constitution of the United States. All
which is directed to be certified to the Circuit Court of the
United States for the seventh circuit and district of Kentucky.