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1825. V. Allen“ also confirms the principle for which

W the plaintiffs insisted. Wayman

The value of the process of execution depends Southard.

upon the time when it may be had, and the manner in which it may be executed, and the subjects upon which it may be levied. If it should be asked, whether a State may not withdraw certain kinds of property from execution, the answer would be, that this was not the question here, and it was not necessary to go out of the case. If the power to establish a judiciary necessarily include the power to confer upon it the authority to use the needful remedies, it must certainly be allowed that the States cannot hinder and destroy the process of execution. Such a right is wholly incompatible with the power of the Union in Congress assembled. If it may withhold one process, it may withhold all. If it can modify, i. e. impair, or weaken, the efficacy of the process, the consequence is the same. The Courts would be then left with the power to adjudicate, but without the power to enforce their decisions. But here the property sought to be reached is subject to execution by the laws of the State ; and where the end is permitted, the means of attaining it must be left free.

It was also insisted, that the statutes of Kentucky in question were repugnant to the constitution of the United States, as impairing the obligation of contracts, and as being tender laws. But as the Court intimated that the cause might

a 7 Cranch's Rep. 550.

Southard.

be upon the other points, the argument upon the 1825. constitutionality of the act was not pressed.

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Woman On the part of the defendants it was insisted,

1. That Congress has no power, under the constitution, to enact an execution law, governing the substance of the proceedings on executions from the Federal Courts, in suits between private individuals.

2. That, supposing Congress to possess such a power, it could not delegate its authority to the Supreme and other Courts of the United States.

3. That the acts of Congress applicable to this subject, do not attempt to delegate that authority to the Courts of the Union.

4. That Congress has not attempted to establish a uniform execution law throughout the United States, nor adopted the laws of the States in force at any particular period, but left the process of execution to be regulated from time to time by the local State laws.

In support of the first point, a distinction was drawn between cases arising from the character of the parties, such as citizens of different States, aliens, &c. and cases arising from the nature of the controversy, as involving the constitution, laws, and treaties of the Union, and over which the Federal Courts had either an original or appellate jurisdiction. The first class of cases arose either under foreign or municipal law, which must be applied as the rule of decision. The remedy followed as a part of the local law of the State where the suit was brought. It was not necessary for Congress to exercise any legis

as

1825. lative power over this class of cases, as it was

over the other, depending upon the constitution, Wayman

laws, and treaties of the Union. The grant of Southard.

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, 6 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 restrict. ed 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 proper to carry into effect the other powers, &c. it

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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 de

hadsode Southard. termined, 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

v.

1815. sacred vested right under the constitution and

· laws of the Union and States. The regulations Wayman

by which it is to be devested, for the purpose of Southard.

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,

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