Wayman V. Southard. 1825. lative power over this class of cases, as it was over the other, depending upon the constitution, laws, and treaties of the Union. The grant of judicial power was here more extensive than the legislative. It was not necessary that Congress should have the power of establishing a civil code for the decision of this class of cases. Neither was it necessary that Congress should regulate the substance of the remedies, which might safely be left to the State legislatures, so long as they made no laws prohibited by the constitution respecting contracts. The power delegated in the third article of the constitution was exclusively judicial, and, therefore, Congress, whose powers are legislative only, are necessarily excluded. The power given to Congress in the first article, "to constitute tribunals inferior to the Supreme Court," does not include the power of regulating the remedies as to this class of cases. In making these regulations, Congress must either have the power to authorize the selling all property under the process of the Federal Courts, or it is restricted to such as the State legislatures think fit to subject to execution. If the former, the power includes an extensive control over the civil legislation of the States as to property and contracts, which the constitution never contemplated. If the latter, it is an illusory power, since, if the States may exempt from, or subject to, execution, in their discretion, they may also regulate the manner of levying it in all other respects. As to the power to make all laws necessary and per to carry into effect the other powers, &c. it pro V. Southard. applied only to those conferred for national pur- 1825. poses, and not to mere judicial power, which Wayman must be exercised according to the municipal law applicable to the case. Congress had so determined, in the 34th section of the Judiciary Act, by which the State laws were made "rules of decision in trials at common law in the Courts of the United States, in cases where they apply." They do apply in the decision of all controversies between citizens of different States, or between aliens and citizens. 2. In support of the second point, that Congress could not delegate its authority of regulating process (whatever might be the extent of it) to the Courts of the Union, it was argued, that by the general principles of all free and limited government, as well as the particular provisions of the Federal constitution, the legislative, executive, and judicial powers, are vested in separate bodies of magistracy. All the legislative power is vested exclusively in Congress. Supposing Congress to have power, under the clause, for making all laws necessary and proper, &c. to make laws for executing the judicial power of the Union, it cannot delegate such power to the judiciary. The rules by which the citizen shall be deprived of his liberty or property, to enforce a judicial sentence, ought to be prescribed and known; and the power to prescribe such rules. belongs exclusively to the legislative department. Congress could not delegate this power to the judiciary, or to any other department of the government. The right to liberty and property is a Wayman V. Southard. 1815. sacred vested right under the constitution and laws of the Union and States. The regulations by which it is to be devested, for the purpose of enforcing the performance of contracts, are of vital importance to the citizen. The power of making such regulations is exclusively vested in the legislative department, by all our constitutions, and by the general spirit and principles of all free government. It is the office of the legislator to prescribe the rule, and of the Judge to apply it; and it is immaterial whether it respects the right in controversy, or the remedy by which it is to be enforced. The mere forms and style of writs, and other process, may, indeed, be regulated by the Courts, but the regulation of the substantive part of the remedy belongs to the legislature. The power to establish Courts, with the jurisdiction defined by the constitution, does not involve, by necessary implication, the authority of delegating any portion or incident of that power to the Courts themselves. That authority is not expressly given; consequently it does not exist. 3. Congress has not, in fact, delegated this authority to the Court. The several Process Acts passed by Congress, regulate the forms only; they give to the Courts the power to regulate the forms only. The expressions in the 2d section of the act of 1792, c. 137. [xxxvi.] "subject, however, to such alterations 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, Wayman V. from time to time, by rule, to prescribe to any 1825. Circuit or District Court," apply only to "the forms of writs, executions, and other process, and the forms and modes of proceeding in suits." Southard. Every Court has, like every other public political body, the power necessary and proper to provide for the orderly conduct of its business. This may be compared to the separate power which each house of Congress has to determine the rules of its proceedings, and to punish contempts. This is altogether different from the general legislative power, which Congress cannot delegate, and never has attempted to delegate, to either house, separately, or to the executive and judicial departments of the government. To construe the power to regulate the forms of process and modes of proceeding, into a power in the Courts to make execution laws, would be to suppose Congress intended to violate the constitution, by delegating their legislative power to the judiciary. The laws of the States on the subject of executions are various and contradictory. Did Congress mean to give to this Court the power to make a uniform execution law throughout the Union, or to adopt the common law of England, and thus to repeal the statutes of all the States regulating what shall, and what shall not, be subject to execution? The forms of process are distinct from the rights and duties to be observed in their execution. The usual form of a fi. fa. is a mandate to the Marshal to make the money of the goods and chattels of the defend Wayman 1825. ant; but what property may or may not be levied, and how, and when, and where it is to be sold, and whether the same is subject to redemption by the debtor, are all of the substance of the remedy. V. Southard. 4. In support of the position that Congress intended to leave the process of execution to be regulated from time to time by the State laws, it was argued, that the Process Act of 1792, c. 137. [xxxvi.] omits the words contained in the 2d section of the Process Act of 1789, c. 21., " and modes of process," used after the words "forms of writs and executions," &c. The expressions which seem to occupy, in the act of 1792, the place of these omitted words are the following: " and modes of proceeding in suits," which are too unequivocal to require comment. "Modes of proceeding in suits," made use of in connexion with the preceding words, "writs, executions," &c., plainly refer to those acts in Court which relate to the determination of the controversy, in opposition and contradistinction to the forms of the mesne process, and also of the process of execution by which the judgment is enforced after the termination of the suit. Proceedings after judgment are always distinguished by law writers, both from the mesne process, and from the proceedings in the suit." There is a plain difference between the forms of writs, and their effects, with the powers and duties conferred under them; between the modes a 3 Bl. Comm. c. 24, 25, 26. |