Wayman 1825. 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. V. Southard. The provision in the Process The counsel for the defendants contend, that Act of 1792, c. this clause, if extended beyond the mere regula137. [xxxvi.] authorizing tion of practice in the Court, would be a delega the Courts of the U. S. to tion of legislative authority which Congress can tions in the re- never be supposed to intend, and has not the make altera gulations con cerning execu- power to make. tions, and other process But Congress has expressly enabled the Courts issuing from to regulate their practice, by other laws. The is not a dele- 17th section of the Judiciary Act of 1789, c. 20. those Courts, gation of legis lative authori- enacts, "That all the said Courts shall have formable to the power" "to make and establish all necessary ty, and is con constitution. 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 legisla tive. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. Without going farther 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? 1825. Wayman v. Southard. 1825. Wayman V. Southard. 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 legisla V. Soutbard. ture may transfer this discretion to the Courts, 1825. and enable them to make rules for its regulation, Wayman 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 h 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 man 1825. Wayman V. Southard. ner 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 |