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 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 V. Southard, 1825. Wayman V. Union subsequent to the enactment of the Process Acts. Congress has itself given a legislative exposiSouthard. tion 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 necessary 1825. 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 effectual remedy by enacting a uniform law on the subject; and that, in the mean time, all regula Wayman V. Southard. Wayman V. Southard. 1825. tions made by the States must apply equally to their own Courts; and it was an inadmissible and extravagant supposition, that any State would thus entirely suspend the course of civil justice. It was the province of every sovereign legislature to regulate it, so far as the society had not surrendered that right to another power. In the present instance, even supposing the constitution to be silent on the subject, Congress had shown a disposition to leave to the States the power of regulating it, except as to cases arising under the constitution, laws, and treaties of the Union, and of peculiar federal cognizance, and excepting that general power of regulating the forms of process, and proceedings, which is essential to every Court of justice. Feb. 12th, 1825. The cause was continued to the present term for advisement. 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 par ties 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. 1825. Wayman Southrad. power to regu cess in all ca in the Courts of the One of the counsel for the defendants insists, Congress has that Congress has no power over executions late the proissued on judgments obtained by individuals; and ses, that the authority of the States, on this subject, Union. 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 con |