Congress has, by the Constitution, exclusive authority to
regulate the proceedings in the courts of the United States, and
the states have no authority to control those proceedings except so
far as the state process acts are adopted by Congress or by the
courts of the United States under the authority of Congress.
The proceedings on executions and other process in the courts of
the United States in suits at common law are to be the same in each
state respectively as were used in the supreme court of the state
in September, 1789, subject to such alterations and additions as
the said courts of the United States may make or as the Supreme
Court of the United States shall prescribe by rule to the other
courts.
A state law regulating executions enacted subsequent to
September, 1789, is not applicable to executions issuing on
judgments rendered by the courts of the United States unless
expressly adopted by the regulations and rules of those courts.
The thirty-fourth section of the Judiciary Act of 1789, c. 20,
which provides "that the laws of the several states, except . . .
shall be regarded as rules of decision in trials at common law in
the courts of the United States, in cases where they apply," does
not apply to the process and practice of the courts. It is a mere
legislative recognition of the principles of universal
jurisprudence as to the operation of the
lex loci.
The statutes of Kentucky concerning executions, which require
the plaintiff to endorse on the execution that bank notes of the
Bank of Kentucky or notes of the Bank of the Commonwealth of
Kentucky, will be received in payment, and, on his refusal,
authorize the defendant to give a replevin bond for the debt,
payable in two years, are not applicable to executions issuing on
judgments rendered by the courts of the United States.
The case of
Palmer v.
Allen, 7 Cranch 550, 2 Cond. 607, reviewed and
reconciled with the present decision.
Page 23 U. S. 2
This cause was certified from the Circuit Court for the District
of Kentucky upon a certificate of a division of opinion between the
judges of that court on several motions which occurred on a motion
made by the plaintiffs to quash the marshal's return on an
execution issued on a judgment obtained in that court and also to
quash the replevin bond taken on the said execution for the
following causes:
"1. Because the marshal, in taking the replevin bond and making
said return, has proceeded under the statutes of Kentucky in
relation to executions, which statutes are not applicable to
executions issuing on judgments in this court, but the marshal is
to proceed with such executions according to the rules of the
common law, as modified by acts of Congress and the rules of this
court and of the Supreme Court of the United States."
"2. That if the statutes of Kentucky in relation to executions
are binding on this court,
viz., the statute which
requires the plaintiff to endorse on the execution that bank notes
of the Bank of Kentucky or notes of the Bank of the
Commonwealth
Page 23 U. S. 3
of Kentucky will be received in payment or that the defendant
may replevy the debt for two years, are in violation of the
Constitution of the United States and of the State of Kentucky and
void."
"3. That all the statutes of Kentucky which authorize a
defendant to give a replevin bond in satisfaction of a judgment or
execution are unconstitutional and void."
"4. Because there is no law obligatory on the said marshal which
authorized or justified him in taking the said replevin bond or in
making the said return on the said execution."
The court below being divided in opinion on the points stated in
the motion, at the request of the plaintiffs the same were ordered
to be certified to this Court.
Page 23 U. S. 20
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and, after stating the case, proceeded as follows:
Some preliminary objections have been made by the counsel for
the defendants to the manner in which these questions are brought
before the Court, which are to be disposed of before the questions
themselves can be considered.
It is said that the proceeding was
ex parte. The law
which empowers this Court to take cognizance of questions adjourned
from a circuit gives jurisdiction over the single point on which
the judges were divided, not over the whole cause. The inquiry,
therefore, whether the parties
Page 23 U. S. 21
were properly before the circuit court cannot be made at this
time in this place.
The defendants also insist that the judgment, the execution, and
the return ought to be stated in order to enable this Court to
decide the question which is adjourned.
But the questions do not arise on the judgment or the execution,
and so far as they depend on the return, enough of that is stated
to show the court that the marshal had proceeded according to the
late laws of Kentucky. In a general question respecting the
obligation of these laws on the officer, it is immaterial whether
he has been exact or otherwise in his observance of them. It is the
principle on which the judges were divided, and that alone is
referred to this Court.
In arguing the first question, the plaintiffs contend that the
common law, as modified by acts of Congress and the rules of this
Court and of the circuit court by which the judgment was rendered,
must govern the officer in all his proceedings upon executions of
every description.
One of the counsel for the defendants insists that Congress has
no power over executions issued on judgments obtained by
individuals, and that the authority of the states on this subject
remains unaffected by the Constitution. That the government of the
Union cannot by law regulate the conduct of its officers in the
service of executions on judgments rendered in the federal courts,
but that the state legislatures retain complete authority over
them.
The Court cannot accede to this novel construction.
Page 23 U. S. 22
The Constitution concludes its enumeration of granted powers
with a clause authorizing Congress to make all laws which shall be
necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the
government of the United States or in any department or officer
thereof. The Judicial Department is invested with jurisdiction in
certain specified cases, in all which it has power to render
judgment.
That a power to make laws for carrying into execution all the
judgments which the Judicial Department has power to pronounce is
expressly conferred by this clause seems to be one of those plain
propositions which reasoning cannot render plainer. The terms of
the clause neither require nor admit of elucidation. The Court
therefore will only say that no doubt whatever is entertained on
the power of Congress over the subject. The only inquiry is how far
has this power been exercised?
The 13th section of the Judiciary Act of 1789, c. 20, describes
the jurisdiction of the Supreme Court and grants the power to issue
writs of prohibition and mandamus in certain specified cases. The
14th section enacts
"That all the beforementioned courts of the United States shall
have power to issue writs of
scire facias, habeas corpus,
and all other writs not specially provided by statute which may be
necessary for the exercise of their respective jurisdictions and
agreeable to the principles and usages of law."
The 17th section authorizes the courts "to make all necessary
rules for the orderly conducting business
Page 23 U. S. 23
in the said courts," and the 18th empowers a court to suspend
execution in order to give time for granting a new trial.
These sections have been relied on by the counsel for the
plaintiffs.
The words of the 14th are understood by the Court to comprehend
executions. An execution is a writ which is certainly "agreeable to
the principles and usages of law."
There is no reason for supposing that the general term "writs"
is restrained by the words "which may be necessary for the exercise
of their respective jurisdictions," to original process, or to
process anterior to judgments. The jurisdiction of a court is not
exhausted by the rendition of its judgment, but continues until
that judgment shall be satisfied. Many questions arise on the
process subsequent to the judgment in which jurisdiction is to be
exercised. It is therefore no unreasonable extension of the words
of the act to suppose an execution necessary for the exercise of
jurisdiction. Were it even true that jurisdiction could technically
be said to terminate with the judgment, an execution would be a
writ necessary for the perfection of that which was previously
done, and would consequently be necessary to the beneficial
exercise of jurisdiction. If any doubt could exist on this subject,
the 18th section, which treats of the authority of the court over
its executions as actually existing, certainly implies that the
power to issue them had been granted in the 14th section. The same
implication is afforded by the 24th
Page 23 U. S. 24
and 25th sections, both of which proceed on the idea that the
power to issue writs of execution was in possession of the courts.
So too, the Process Act, which was depending at the same time with
the Judiciary Act, prescribes the forms of executions, but does not
give a power to issue them.
On the clearest principles of just construction, then, the 14th
section of the Judiciary Act must be understood as giving to the
courts of the Union, respectively, a power to issue executions on
their judgments.
But this section provides singly for issuing the writ, and
prescribes no rule for the conduct of the officer while obeying its
mandate. It has been contended that the 34th section of the act
supplies this deficiency.
That section enacts
"That the laws of the several states except where the
Constitution, treaties, or statutes, of the United States shall
otherwise require or provide, shall be regarded as rules of
decision in trials at common law in the courts of the United States
in cases where they apply."
This section has never, so far as is recollected, received a
construction in this Court, but it has, we believe, been generally
considered by gentlemen of the profession as furnishing a rule to
guide the court in the formation of its judgment; not one for
carrying that judgment into execution. It is "a rule of decision,"
and the proceedings after judgment are merely ministerial. It is,
too, "a rule of decision in trials at
Page 23 U. S. 25
common law;" a phrase which presents clearly to the mind the
idea of litigation in court, and could never occur to a person
intending to describe an execution, or proceedings after judgment,
or the effect of those proceedings. It is true that if, after the
service of an execution, a question respecting the legality of the
proceeding should be brought before the court by a regular suit,
there would be a trial at common law, and it may be said that the
case provided for by the section would then occur, and that the law
of the state would furnish the rule for its decision.
But by the words of the section, the laws of the state furnish a
rule of decision for those cases only "where they apply," and the
question arises do they apply to such a case? In the solution of
this question it will be necessary to inquire whether they regulate
the conduct of the officer serving the execution, for it would be
contrary to all principle to admit that, in the trial of a suit
depending on the legality of an official act, any other law would
apply than that which had been previously prescribed for the
government of the officer. If the execution is governed by a
different rule, then these laws do not apply to a case depending
altogether on the regularity of the proceedings under the
execution. If, for example, an officer take the property of A. to
satisfy an execution against B., and a suit be brought by A., the
question of property must depend entirely on the law of the state.
But if an execution issue against A., as
Page 23 U. S. 26
he supposes, irregularly, or if the officer should be supposed
to act irregularly in the performance of his duty, and A. should in
either case proceed against the officer, the state laws will give
no rule of decision in the trial, because they do not apply to the
case unless they be adopted by this section as governing executions
on judgments rendered by the courts of the United States. Before we
can assume that the state law applies to such a case, we must show
that it governs the officer in serving the execution, and
consequently its supposed application to such a case is no
admissible argument in support of the proposition that it does
govern the execution. That proposition, so far as it depends on the
construction of the 34th section, has already been considered, and
we think that, in framing it, the legislature could not have
extended its views beyond the judgment of the court.
The 34th section, then, has no application to the practice of
the court or to the conduct of its officer in the service of an
execution.
The 17th section would seem, both from the context and from the
particular words which have been cited as applicable to this
question, to be confined to business actually transacted in court,
and not to contemplate proceedings out of court.
The act to "regulate processes in the courts of the United
States," passed in 1789, has also been referred to. It enacts
"That until further provision shall be made and except where by
this act or other statutes of the United States
Page 23 U. S. 27
is otherwise provided, the forms of writs and executions, except
their style 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 in the supreme courts of the
same."
This act, so far as respects the writ, is plainly confined to
form. But form in this particular, it has been argued, has much of
substance in it, because it consists of the language of the writ,
which specifies precisely what the officer is to do. His duty is
prescribed in the writ, and he has only to obey its mandate.
This is certainly true so far as respects the object to be
accomplished, but not as respects the manner of accomplishing it.
In a
fi. fa., for example, the officer is commanded to
make of the goods and chattels of A.B. the sum of money specified
in the writ, and this sum must, of course, be made by a sale. But
the time and manner of the sale and the particular goods and
chattels which are liable to the execution, unless, indeed, all are
liable, are not prescribed.
To "the forms of writs and executions" the law adds the words
"and modes of process." These words must have been intended to
comprehend something more than "the forms of writs and executions."
We have not a right to consider them as mere tautology. They have a
meaning, and ought to be allowed an operation more extensive than
the preceding words. The term is applicable to writs and
executions, but it is also applicable to every step taken in a
cause.
Page 23 U. S. 28
It indicates the progressive course of the business from its
commencement to its termination, and "modes of process" may be
considered as equivalent to modes or manner of proceeding. If, by
the word "process," Congress had intended nothing more than a
general phrase, which might comprehend every other paper issuing
out of a court, the language would most probably have resembled
that of the first section, where the word "processes," not
"process," is used in that sense. But the introduction of the word
"modes" and the change of the word "processes" for "process" seem
to indicate that the word was used in its more extensive sense, as
denoting progressive action -- a sense belonging to the noun in the
singular number rather than in the sense in which it was used in
the first section, which is appropriate to the same noun in its
plural number.
This construction is supported by the succeeding sentence, which
is in these words: "and the forms and modes of proceedings, in
causes of equity, and of admiralty, and maritime jurisdiction shall
be according to the course of the civil law."
The preceding sentence had adopted the forms of writs and
executions and the modes of process then existing in the courts of
the several states as a rule for the federal courts "in suits at
common law." And this sentence adopts "the forms and modes of
proceedings" of the civil law "in causes of equity and of admiralty
and maritime jurisdiction." It has not, we believe,
Page 23 U. S. 29
been doubted that this sentence was intended to regulate the
whole course of proceeding "in causes of equity, and of admiralty
and maritime jurisdiction." It would be difficult to assign a
reason for the solicitude of Congress to regulate all the
proceedings of the court, sitting as a court of equity or of
admiralty, which would not equally require that its proceedings
should be regulated when sitting as a court of common law. The two
subjects were equally within the province of the legislature,
equally demanded their attention, and were brought together to
their view. If, then, the words making provision for each fairly
admit of an equally extensive interpretation, and of one which will
effect the object that seems to have been in contemplation, and
which was certainly desirable, they ought to receive that
interpretation. "The forms of writs and executions, and modes of
process in suits at common law" and "the forms and modes of
proceedings in causes of equity, and of admiralty and maritime
jurisdiction" embrace the same subject, and both relate to the
progress of a suit from its commencement to its close.
It has been suggested that the words "in suits at common law"
restrain the preceding words to proceedings between the original
writ and judgment. But these words belong to "writs and execution"
as well as to "modes of process," and no more limit the one than
the other. As executions can issue only after a judgment,
Page 23 U. S. 30
the words "in suits at common law" must apply to proceedings
which take place after judgment.
But the legal sense of the word "suit" adheres to the case after
the rendition of the judgment, and it has been so decided.
*
This construction is fortified by the proviso, which is in these
words:
"Provided that on judgments in any of the cases aforesaid where
different kinds of executions are issuable in succession, a
capias ad satisfaciendum being one, the plaintiff shall
have his election to take out a
capias ad satisfaciendum
in the first instance and be at liberty to pursue the same until a
tender of the debt and costs in gold or silver shall be made."
The proviso is generally intended to restrain the enacting
clause and to except something which would otherwise have been
within it, or, in some measure, to modify the enacting clause. The
object of this proviso is to enable the creditor to take out a
capias ad satisfaciendum in the first instance and to
pursue it until the debt be satisfied, notwithstanding anything to
the contrary in the enacting clause. It is perfectly clear that
this provision is no exception from that part of the enacting
clause which relates to the "forms of writs and executions," and
can be an exception to that part only which relates to the "modes
of process." It secures the right to elect the
capias ad
satisfaciendum in the first instance, where that writ was at
all issuable under the law of the state, and to pursue it until the
debt and
Page 23 U. S. 31
costs be tendered in gold or silver. It relates to the time and
circumstances under which the execution may issue, and to the
conduct of the officer while in possession of the execution. These,
then, are objects which Congress supposed to be reached by the
words "modes of process" in the enacting clause.
This law, though temporary, has been considered with some
attention because the permanent law has reference to it and adopts
some of its provisions. It was continued until 1792, when a
perpetual act was passed on the subject. This, whether merely
explanatory or also amendatory of the original act, is the law
which must decide the question now before the Court.
It enacts
"That the forms of writs, executions, and other process except
their style and the forms and modes of proceeding in suits in those
of common law, shall be the same as are now used in the said courts
respectively in pursuance of the act entitled 'An act to regulate
processes in the courts of the United States,' except so far as may
have been provided for by the act to establish the judicial courts
of the United States, 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."
This act is drawn with more deliberation than the original act,
and removes, so for as respects
Page 23 U. S. 32
the question now under consideration, some doubt which might be
entertained in relation to the correctness with which the act of
1789 has been construed. It distinguishes very clearly between the
forms of writs and all other process of the same character and the
forms and modes of proceeding in suits, and provides for both. It
is impossible to confound "the forms of writs, executions, and
other process," which are to be attested by a judge, and to be
under the seal of the court from which they issue, with "the forms
and modes of proceeding in suits." They are distinct subjects. The
first describes the paper which issues from the court, and is an
authority to the officer to do that which it commands; the last
embraces the whole progress of the suit and every transaction in
it, from its commencement to its termination, which has been
already shown not to take place until the judgment shall be
satisfied. It may, then, and ought to be understood as prescribing
the conduct of the officer in the execution of process, that being
a part of "the proceedings" in the suit. This is to conform to the
law of the state as it existed in September, 1789. The act adopts
the state law as it then stood, not as it might afterwards be
made.
A comparison of the proviso to the permanent act with that which
had been introduced into the temporary act will serve to illustrate
the idea that the proceedings under the execution were contemplated
in the enacting clause, and supposed to be prescribed by the words
"modes of process"
Page 23 U. S. 33
in the one law and "modes of proceeding" in the other.
The proviso to the act of 1789 authorizes the creditor to sue
out a
capias ad satisfaciendum in the first instance, and
to continue it "until a tender of the debt in gold and silver shall
be made." The proviso to the act of 1798 omits this last member of
the sentence.
The appraisement laws existing in some of the states authorized
a debtor taken in execution to tender property in discharge of his
person, and this part of the proviso shows an opinion that the
enacting clause adopted this privilege, and an intention to deprive
him of it. The enacting clause of the act of 1793 adopts the state
law to precisely the same extent with the enacting clause of the
act of 1789, and the omission of the clause in the proviso which
has been mentioned leaves that part of the adopted law which allows
the creditor to discharge his person by the tender of property in
force.
The subject was resumed in 1793 in the act, entitled "An act in
addition to the act entitled an act to establish the judicial
courts of the United States."
The 8th section enacts
"That where it is now required by the laws of any state that
goods taken in execution on a writ of
fieri facias shall
be appraised previous to the sale thereof, it shall be lawful for
the appraisers appointed under the authority of the state to
appraise goods taken in execution on a
fieri facias issued
out of any court of the United States in the same manner
Page 23 U. S. 34
as if such writ had issued out of a court held under the
authority of the state, and it shall be the duty of the marshal in
whose custody such goods may be to summon the appraisers in like
manner as the sheriff is by the laws of the state required to
summon them, . . . and if the appraisers, being duly summoned,
shall fail to attend and perform the duties required of them, the
marshal may proceed to sell such goods without an
appraisement."
This act refers to the appraisement laws of the respective
states which were in force at the time of its passage, without
distinguishing between those which were enacted before and those
which were enacted after September, 1789. The fact, however, is
understood to be that they were enacted previous to that time,
generally as temporary laws, and had been continued by subsequent
acts. They required, so far as they have been inspected, that
appraisers should be appointed by the local tribunals to appraise
the property taken in execution. Supposing laws of this description
to have been adopted by the act of 1789, the regular mode of
proceeding under them would have been for the courts of the United
States respectively to appoint appraisers, who should perform the
same duty with respect to executions issuing out of the courts of
the Union as was performed by appraisers appointed under state
authority with respect to executions issuing out of the courts of
the state. It was unquestionably much more convenient to employ
that machinery which was already in operation for such a
Page 23 U. S. 35
purpose than to construct a distinct system; it was more
convenient to employ the appraisers already existing in the several
counties of a state than to appoint a number of new appraisers, who
could not be known to the courts making such appointments.
Accordingly, the section under consideration does not profess to
adopt the appraisement laws of the several states, but proceeds on
the idea that they were already adopted, and authorizes the officer
to avail himself of the agency of those persons who had been
selected by the local tribunals to appraise property taken in
execution. Had these laws been supposed to derive their authority
to control the proceedings of the courts of the United States not
from being adopted by Congress, but from the vigor imparted to them
by the state legislatures, the intervention of Congress would have
been entirely unnecessary. The power which was competent to direct
the appraisement was competent to appoint the appraisers.
The act passed in 1800 "for the relief of persons imprisoned for
debt" takes up a subject on which every state in the Union had
acted previous to September, 1789. It authorizes the marshal to
allow the benefit of the prison rules to those who are in custody
under process issued from the courts of the United States in the
same manner as it is allowed to those who are imprisoned under
process issued from the courts of the respective states.
Congress took up this subject in 1792, and provided for it by a
temporary law which was
Page 23 U. S. 36
continued from time to time until the permanent law of 1800. It
is the only act to which the attention of the Court has been drawn
that can countenance the opinion that the legislature did not
consider the Process Act as regulating the conduct of an officer in
the service of executions. It may be supposed that in adopting the
state laws as furnishing the rule for proceedings in suits at
common law, that rule was as applicable to writs of
capias ad
satisfaciendum, as of
fieri facias, and that the
marshal would be as much bound to allow a prisoner the benefit of
the rules under the act of Congress as to sell upon the notice, and
on the credit prescribed by the state laws.
The suggestion is certainly entitled to consideration. But were
it true that the process acts would, on correct construction, adopt
the state laws which give to a debtor the benefit of the rules,
this single act of superfluous legislation, which might be a
precaution suggested by the delicacy of the subject, by an anxiety
to insure such mitigation of the hardships of imprisonment, as the
citizens of the respective states were accustomed to see, and to
protect the officer from the hazard of liberating the person of an
imprisoned debtor, could not countervail the arguments to be drawn
from every other law passed in relation to proceedings on
executions, and from the omission to pass laws which would
certainly be requisite to direct the conduct of the officer if a
rule was not furnished by the Process Act.
Page 23 U. S. 37
But there is a distinction between the cases sufficient to
justify this particular provision. The jails in which prisoners
were to be confined did not belong to the government of the Union,
and the privilege of using them was ceded by the several states
under a compact with the United States. The jailers were state
officers, and received prisoners committed under process of the
courts of the United States in obedience to the laws of their
respective states. Some doubt might reasonably be entertained, how
far the Process Act might be understood to apply to them.
The resolution of Congress under which the use of the state
jails was obtained
"recommended it to the legislatures of the several states to
pass laws making it expressly the duty of the keepers of their
jails to receive, and safe keep therein all prisoners committed
under the authority of the United States, until they shall be
discharged by due course of the laws thereof."
The laws of the states, so far as they have been examined,
conform to this resolution. Doubts might well be entertained of
permitting the prisoner, under this resolution and these laws, to
have the benefit of the rules. The removal of such doubts seems to
have been a prudent precaution.
The case of
Palmer v.
Allen, 7 Cranch 550, may be considered, at first
sight, as supporting the opinion that the acts for regulating
processes in the courts of the United States do not adopt the laws
of the several states as they stood in September, 1789, as the rule
by
Page 23 U. S. 38
which the officers of the federal courts are to be governed in
the service of process issuing out of those courts; but, upon an
examination of that case, this impression will be removed.
In that case, as appears from the statement of the judge who
delivered the opinion of this Court, Palmer, as deputy marshal,
arrested Allen on a writ sued out of the District Court of
Connecticut by the United States to recover a penalty under a
statute of the United States. Bail was demanded, and, not being
given, Allen was committed to prison. For this commitment Allen
brought an action of trespass, assault and battery, and false
imprisonment in the state court. Palmer pleaded the whole matter in
justification, and upon demurrer the plea was held insufficient.
The judgment of the state court was brought before this Court by
writ of error and was reversed, this Court being of opinion that
the plea was a good bar to the action.
The demurrer was sustained in the state court because, by an act
of the Legislature of Connecticut, the officer serving process
similar to that which was served by Palmer must, before committing
the person on whom it is served to jail, obtain a mittimus from a
magistrate of the state authorizing such commitment, and that court
was of opinion that the act of Congress had adopted this rule so as
to make it obligatory on the officer of the federal court.
This Court was of opinion that the plea made out a sufficient
justification, and therefore reversed the judgment of the state
court. This
Page 23 U. S. 39
judgment of reversal is to be sustained for several reasons,
without impugning the general principle that the acts under
consideration adopt the state laws as they stood in September,
1789, as giving the mode of proceeding in executing process issuing
out of the courts of the United States.
The act of 1792 for regulating processes in the courts of the
United States enacts that
"The modes of proceeding in suits in those of common law shall
be the same as are now used in the said courts respectively in
pursuance of the act entitled, 'An act to regulate processes in the
courts of the United States.'"
The endorsement of a mittimus on the writ had never been used,
as appears by the opinion in the case of
Palmer v. Allen,
in the courts of the United States for the District of Connecticut.
In connection with this fact, the provision of the act of 1792
subjects the modes of proceeding under the laws of the state "to
such alterations and additions as the said courts, respectively,
shall in their discretion deem expedient." The uniform course of
that court from its first establishment dispensing with this
mittimus may be considered as the alteration in this particular
which the court was authorized by law to make.
It may very well be doubted, too, whether the act of Congress
which conforms the modes of proceeding in the courts of the Union
to those in the several states requires the agency of state
officers in any case whatever not expressly mentioned. The laws of
the Union may permit
Page 23 U. S. 40
such agency, but it is by no means clear that they can compel
it. In the case of the appraisement laws already noticed, it was
deemed necessary to pass a particular act authorizing the marshal
to avail himself of the appraisers for the state, and the same law
dispenses with the appraisement should they fail to attend. If the
mittimus should be required by the act of Congress, it should be
awarded by a judge of the United States, not by a state magistrate,
in like manner as an order for bail, in doubtful cases, is endorsed
by a judge of the United States in cases where the state law
requires such endorsement to be made by the judge or justice of the
court from which the process issues. The mittimus is a commitment
for want of bail, and the magistrate who awards it decides, in
doing so, that it is a case in which bail is demandable. But in the
particular case of
Allen, that question was decided by the
law. The act of Congress (Act of 1799, c. 128. s. 65) required that
bail should be given. No application to the judge was necessary.
The officer was compelled to arrest the body of Allen and to detain
him in custody until bail should be given. This act therefore
dispenses with any order of a judge requiring bail and with a
mittimus authorizing a commitment for the want of bail. The officer
was obliged to detain the body of Allen in custody, and this duty
was best performed by committing him to jail. These reasons
operated with the court as additional to the opinion that the law
of Connecticut requiring a mittimus in
Page 23 U. S. 41
civil cases was, in its terms, a peculiar municipal regulation
imposing a restraint on state officers, which was not adopted by
the Process Act of the United States and was a provision
inapplicable to the courts of the Union, a provision which could
not be carried into effect according to its letter.
The reasons assigned by the Court for its decision in the case
of
Palmer v. Allen, so far from implying an opinion that
the Process Act does not adopt the laws of the several states as
giving a rule to be observed by the officer in executing process
issuing from the courts of the United States, recognizes the
general principle and shows why that case should be taken out of
its operation.
So far as the Process Act adopts the state laws as regulating
the modes of proceeding in suits at common law, the adoption is
expressly confined to those in force in September, 1789. The act of
Congress does not recognize the authority of any laws of this
description which might be afterwards passed by the states. The
system as it then stood is adopted,
"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."
This provision enables the several courts of the Union to make
such improvements in its
Page 23 U. S. 42
forms and modes of proceeding as experience may suggest, and
especially to adopt such state laws on this subject as might vary
to advantage the forms and modes of proceeding which prevailed in
September, 1789.
The counsel for the defendants contend that this clause, if
extended beyond the mere regulation of practice in the court, would
be a delegation of legislative authority which Congress can never
be supposed to intend and has not the power to make.
But Congress has expressly enabled the courts to regulate their
practice, by other laws. The 17th section of the Judiciary Act of
1789, c. 20. enacts
"That all the said courts shall have power . . . to make and
establish all necessary rules for the orderly conducting business
in the said courts, provided such rules are not repugnant to the
laws of the United States,"
and the 7th section of the act, "in addition to the act
entitled,
An act to establish the judicial courts of the United
States'" (Act of 1793, ch. 22. s. 7), details more at large the
powers conferred by the 17th section of the Judiciary Act. These
sections give the Court full power over all matters of practice,
and it is not reasonable to suppose that the Process Act was
intended solely for the same object. The language is different, and
the two sections last mentioned have no reference to state
laws.
It will not be contended that Congress can delegate to the
courts or to any other tribunals powers which are strictly and
exclusively legislative.
Page 23 U. S. 43
But Congress may certainly delegate to others powers which the
legislature may rightfully exercise itself. Without going further
for examples, we will take that the legality of which the counsel
for the defendants admit. The 17th section of the Judiciary Act and
the 7th section of the additional act empower the courts
respectively to regulate their practice. It certainly will not be
contended that this might not be done by Congress. The courts, for
example, may make rules directing the returning of writs and
processes, the filing of declarations and other pleadings, and
other things of the same description. It will not be contended that
these things might not be done by the legislature without the
intervention of the courts, yet it is not alleged that the power
may not be conferred on the Judicial Department.
The line has not been exactly drawn which separates those
important subjects which must be entirely regulated by the
legislature itself from those of less interest in which a general
provision may be made and power given to those who are to act under
such general provisions to fill up the details. To determine the
character of the power given to the courts by the Process Act, we
must inquire into its extent. It is expressly extended to those
forms and modes of proceeding in suits at common law which were
used in the state courts in September, 1789, and were adopted by
that act. What, then, was adopted?
Page 23 U. S. 44
We have supposed that the manner of proceeding under an
execution was comprehended by the words "forms and modes of
proceeding in suits" at common law. The writ commands the officer
to make the money for which judgment has been rendered. This must
be understood as directing a sale, and perhaps as directing a sale
for ready money. But the writ is entirely silent with respect to
the notice, with respect to the disposition which the officer is to
make of the property between the seizure and sale, and probably
with respect to several other circumstances which occur in obeying
its mandate. These are provided for in the Process Act. The modes
of proceeding used in the courts of the respective states are
adopted for the courts of the Union, and they not only supply what
is not fully expressed in the writ, but have in some respects
modified the writ itself by prescribing a more indirect and
circuitous mode of obeying its mandate than the officer could be
justified in adopting. In some instances, the officer is permitted
to leave the property with the debtor on terms prescribed by the
law, and in others to sell on a prescribed credit instead of ready
money.
Now suppose the power to alter these modes of proceeding which
the act conveys in general terms was specifically given. The
execution orders the officer to make the sum mentioned in the writ
out of the goods and chattels of the debtor. This is completely a
legislative provision, which leaves the officer to exercise his
discretion respecting the notice. That the legislature
Page 23 U. S. 45
may transfer this discretion to the courts and enable them to
make rules for its regulation will not, we presume, be questioned.
So, with respect to the provision for leaving the property taken by
the officer in the hands of the debtor till the day of sale. He may
do this, independent of any legislative act, at his own peril. The
law considers the property as his for the purposes of the
execution. He may sell it, should it be produced, in like manner as
if he had retained it in his personal custody, or may recover it,
should it be withheld from him. The law makes it his duty to do
that which he might do in the exercise of his discretion, and
relieves him from the responsibility attendant on the exercise of
discretion in a case where his course is not exactly prescribed and
he deviates from that which is most direct. The power given to the
court to vary the mode of proceeding in this particular is a power
to vary minor regulations which are within the great outlines
marked out by the legislature in directing the execution. To vary
the terms on which a sale is to be made and declare whether it
shall be on credit or for ready money is certainly a more important
exercise of the power of regulating the conduct of the officer, but
is one of the same principle. It is, in all its parts, the
regulation of the conduct of the officer of the court in giving
effect to its judgments. A general superintendence over this
subject seems to be properly within the judicial province, and has
been always so considered. It is undoubtedly proper for the
legislature to prescribe the manner
Page 23 U. S. 46
in which these ministerial offices shall be performed, and this
duty will never be devolved on any other department without urgent
reasons. But in the mode of obeying the mandate of a writ issuing
from a court, so much of that which may be done by the judiciary
under the authority of the legislature seems to be blended with
that for which the legislature must expressly and directly provide
that there is some difficulty in discerning the exact limits within
which the legislature may avail itself of the agency of its
courts.
The difference between the departments undoubtedly is that the
legislature makes, the executive executes, and the judiciary
construes the law; but the maker of the law may commit something to
the discretion of the other departments, and the precise boundary
of this power is a subject of delicate and difficult inquiry, into
which a court will not enter unnecessarily.
Congress, at the introduction of the present government, was
placed in a peculiar situation. A judicial system was to be
prepared, not for a consolidated people, but for distinct
societies, already possessing distinct systems and accustomed to
laws which, though originating in the same great principles, had
been variously modified. The perplexity arising from this state of
things was much augmented by the circumstance that in many of the
states the pressure of the moment had produced deviations from that
course of administering justice between debtor and creditor which
consisted not only with the spirit of the Constitution and,
consequently, with
Page 23 U. S. 47
the views of the government, but also with what might safely be
considered as the permanent policy, as well as interest, of the
states themselves. The new government could neither entirely
disregard these circumstances nor consider them as permanent. In
adopting the temporary mode of proceeding with executions then
prevailing in the several states, it was proper to provide for that
return to ancient usage, and just as well as wise principles which
might be expected from those who had yielded to a supposed
necessity in departing from them. Congress probably conceived that
this object would be best effected by placing in the courts of the
Union the power of altering the "modes of proceeding in suits at
common law," which includes the modes of proceeding in the
execution of their judgments, in the confidence, that in the
exercise of this power, the ancient, permanent, and approved system
would be adopted by the courts at least as soon as it should be
restored in the several states by their respective legislatures.
Congress could not have intended to give permanence to temporary
laws of which it disapproved, and therefore provided for their
change in the very act which adopted them.
But the objection which gentlemen make to this delegation of
legislative power seems to the court to be fatal to their argument.
If Congress cannot invest the courts with the power of altering the
modes of proceeding of their own officers in the service of
executions issued on their own judgments, how will gentlemen defend
a delegation
Page 23 U. S. 48
of the same power to the state legislatures? The state
assemblies do not constitute a legislative body for the Union. They
possess no portion of that legislative power which the Constitution
vests in Congress, and cannot receive it by delegation. How then
will gentlemen defend their construction of the 34th section of the
Judiciary Act? From this section they derive the whole obligation
which they ascribe to subsequent acts of the state legislatures
over the modes of proceeding in the courts of the Union. This
section is unquestionably prospective as well as retrospective. It
regards future as well as existing laws. If, then, it embraces the
rules of practice, the modes of proceeding in suits; if it adopts
future state laws to regulate the conduct of the officer in the
performance of his official duties, it delegates to the state
legislatures the power which the Constitution has conferred on
Congress, and which, gentlemen say, is incapable of delegation.
As construed by the Court, this section is the recognition of a
principle of universal law -- the principles that in every forum a
contract is governed by the law with a view to which it was
made.
But the question respecting the right of the courts to alter the
modes of proceeding in suits at common law, established in the
Process Act, does not arise in this case. That is not the point on
which the judges at the circuit were divided and which they have
adjourned to this Court. The question really adjourned is whether
the laws of Kentucky respecting executions,
Page 23 U. S. 49
passed subsequent to the Process Act, are applicable to
executions which issue on judgments rendered by the federal
courts.
If they be, their applicability must be maintained either in
virtue of the 34th section of the Judiciary Act or in virtue of an
original inherent power in the state legislatures, independent of
any act of Congress, to control the modes of proceeding in suits
depending in the courts of the United States and to regulate the
conduct of their officers in the service of executions issuing out
of those courts.
That the power claimed for the state is not given by the 34th
section of the Judiciary Act has been fully stated in the preceding
part of this opinion. That it has not an independent existence in
the state legislatures is, we think, one of those political axioms
an attempt to demonstrate which would be a waste of argument not to
be excused. The proposition has not been advanced by counsel in
this case, and will probably never be advanced. Its utter
inadmissibility will at once present itself to the mind if we
imagine an act of a state legislature for the direct and sole
purpose of regulating proceedings in the courts of the Union or of
their officers in executing their judgments. No gentleman, we
believe, will be so extravagant as to maintain the efficacy of such
an act. It seems not much less extravagant to maintain that the
practice of the federal courts and the conduct of their officers
can be indirectly regulated by the state legislatures by an act
professing to regulate
Page 23 U. S. 50
the proceedings of the state courts and the conduct of the
officers who execute the process of those courts. It is a general
rule that what cannot be done directly from defect of power cannot
be done indirectly.
The right of Congress to delegate to the courts the power of
altering the modes (established by the Process Act) of proceedings
in suits has been already stated, but were it otherwise, we are
well satisfied that the state legislatures do not possess that
power.
This opinion renders it unnecessary to consider the other
questions adjourned in this case. If the laws do not apply to the
federal courts, no question concerning their constitutionality can
arise in those courts.
CERTIFICATE. This cause came on to be heard on the questions
certified from the United States Court for the Seventh Circuit and
District of Kentucky, and was argued by counsel, on consideration
whereof this Court is of opinion that the statutes of Kentucky in
relation to executions, which are referred to in the questions
certified to this Court on a division of opinion of the said judges
of the said circuit court are not applicable to executions which
issue on judgments rendered by the courts of the United States,
which is directed to be certified to the said circuit court.
* Co.Litt. 291; 8 Co. 53
b