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from time to time, by rule, to prescribe to any 1825. Circuit or District Court," apply only to “ the

Wayman forms of writs, executions, and other process,

Southard. and the forms and modes of proceeding in suits."

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

1825. ant; but what property may or may not be levied,

and how, and when, and where it is to be sold, Wayman

and whether the same is subject to redemption Southard.

by the debtor, are all of the substance of the remedy.

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, e. 137. [xxxvi.) omits the words contained in the 2d section of the Process Act of 1789, c. 21., 6 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: 6 and modes of proceeding in suits," which are too unequivocal to require comment. 66 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 BI. Comm. c. 24, 25, 26.

of proceeding in suits, and the laws of execution 1825. to enforce the judgment. The only clause in the

Wayman Process Act of 1789, c. 21. which favoured the notion that it was the intention of Congress to

Southard. prescribe the effect of any writ of execution, had been omitted in the Process Act of 1792, c. 137. [xxxvi.] The concluding paragraph in the 2d section of the act of 1789, c. 21. “ and be at liberty to pursue the same, until a tender of the debt and costs in gold and silver shall be made," was entirely omitted in the subsequent act. And the circumstance of this act having been confined in its duration to one year, and that at the two succeeding sessions it had been continued for the same term only, and when the permanent act was passed, this clause, as well as the indefinite expression, “ modes of process," were both excluded, showed that they were purposely excluded, so that no effect should be given to writs of execution, other than what they would receive from the local laws of the States

The provision in the 34th section of the Judiciary Act of 1789, c. 20., making the State laws rules of decision in cases where they apply, furnishes the rules by which this case is to be determined. The question is, whether the Marshal has conducted himself according to law in executing this process. The mere form of the writ is insufficient to determine it. If you apply the State execution laws as existing in 1789, or 1792, nearly all the western States will be left without an execution law applicable in the Federal Courts, since they were admitted into the

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1825. Union subsequent to the enactment of the Pro

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Congress has itself given a legislative exposition of the acts now in question, evidently considering the execution laws of the States to be the laws of execution for the Federal Courts. By the Judiciary Act of 1793, c. 167. [xxii.] s. 8., it is provided, “ 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,” the like proceedings are to be had on executions issuing out of the Courts of the United States. So, also, by the act of May 7, 1800, c. 199. [xxv.] regulating sales of lands, on judgments obtained by the United States, it is enacted, (sec. 1.) “ That where the United States shall have obtained judgment in civil actions brought in those States wherein, by the laws and practice of such States, lands, or other real estate, belonging to the debtor, are delivered to the creditor in satisfaction of such judgment," &c. the Marshal is to proceed to sell at public auction, and to execute a grant to the highest bidder. These legislative expositions were made long before the present case arose, and are as binding in fixing the sense of the legislature as any declaratory act which Congress could make on the subject.

The Process Acts regulate the forms of writs, and the modes of proceeding in suits, and give the Courts the power to alter both. The 14th section of the Judiciary Act of 1789, c. 20. gives 1825.

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to the Courts power to issue writs “ necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” Where a Court has issued the execution, according to the form provided under the Process Acts, it has done all that is authorized by the 14th section of the Judiciary Act, and by the Process Acts. The rule which is to govern the manner of levying the execution, is to be found in the 34th section of the Judiciary Act. Various regulations prevail in the States, as to what property is liable to execution. In some, lands are exempt, except upon an elegit ; in others, certain personal property is exempt; in all, the ca. sa. is variously modified. How are all these conflicting regulations to be reconciled, but by resorting to the wise and safe provision contained in the 34th section of the Judiciary Act, which gives the same rule as to the substance of the remedy which applies to the right in controversy, and the same for the Federal Courts as is used at the time in the State Courts ?

To the argument which had been urged for the plaintiffs, that, upon the supposition that executions from the Federal Courts are to be regulated by the local laws in each State, the State legislatures might entirely defeat the administration of justice in those Courts, by exempting all property from execution, it was answered, that Congress (supposing them to possess the constitutional power) might, at any time, apply an effeetual remedy by enacting a uniform law on the subject; and that, in the mean time, all regula

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