Wayman

V.

the views of the government, but also with what 1825. might safely be considered as the permanent policy, as well as interest, of the States themselves. The new government could neither entirely dis- Southard. regard these circumstances, nor consider them as permanent. In adopting the temporary mode of proceeding with executions then prevailing in the several States, it was proper to provide for that return to ancient usage, and just, as well as wise principles, which might be expected from those who had yielded to a supposed necessity in departing from them. Congress, probably, conceived, that this object would be best effected by placing in the Courts of the Union the power of altering the "modes of proceeding in suits at common law," which includes the modes of proceeding in the execution of their judgments, in the confidence, that in the exercise of this power, the ancient, permanent, and approved system, would be adopted by the Courts, at least as soon as it should be restored in the several States by their respective legislatures. Congress could not have intended to give permanence to temporary laws of which it disapproved; and, therefore, provided for their change in the very act which adopted them.

But the objection which gentlemen make to this delegation of legislative power seems to the Court to be fatal to their argument. If Congress cannot invest the Courts with the power of altering the modes of proceeding of their own officers, in the service of executions issued on their own judgments, how will gentlemen defend a de

Wayman

1825. gulate the proceedings of the State Courts, and the conduct of the officers who execute the process of those Courts. It is a general rule, that what cannot be done directly from defect of power, cannot be done indirectly.

Southard.

The right of Congress to delegate to the Courts the power of altering the modes (established by the Process Act) of proceedings in suits, has been already stated; but, were it otherwise, we are well satisfied that the State legislatures do not possess that power.

This opinion renders it unnecessary to consider the other questions adjourned in this case. If the laws do not apply to the Federal Courts, no question concerning their constitutionality can arise in those Courts.

CERTIFICATE. This cause came on to be heard on the questions certified from the United States Court for the seventh circuit and District of Kentucky, and was argued by counsel: on consideration whereof, this Court is of opinion, that the statutes of Kentucky in relation to executions, which are referred to in the questions certified to this Court, on a division of opinion of the said Judges of the said Circuit Court, are not applicable to executions which issue on judgments rendered by the Courts of the United States'; which is directed to be certified to the said Circuit Court.

[CONSTITUTIONAL LAW. PRACTICE.]

THE BANK OF THE UNITED STATES V. HALSTEAD.

The act of assembly of Kentucky of the 21st of December, 1821, which prohibits the sale of property taken under executions for less than three fourths of its appraised value, without the consent of the owner, does not apply to a venditioni exponas issued out of the Circuit Court for the District of Kentucky.

The laws of the United States authorize the Courts of the Union so to alter the form of the process of execution used in the Supreme Courts of the States in 1789, so as to subject to execution lands and other property, not thus subject by the State laws in force at that time.

THIS cause was argued at the last term, by the same counsel with the preceding case of Wayman v. Southard, (ante p. 1.) and continued to the present term for advisement.

1825.

U. S. Bank

V.

Halstead.

Mr. Justice THOMPSON delivered the opinion Feb. 15th, of the Court.

This case comes up on a division of opinion of the Judges of the Circuit Court of the United States for the District of Kentucky, upon a motion there made to quash the return of the Marshal upon a venditioni exponas issued in this cause, The writ commanded the Marshal to expose to sale certain articles of property therein particularly specified; and, among other things, two hundred acres of land of Abraham Venable, one of the defendants. The Marshal, in his return, states substantially, that he had exposed to

1825.

1825.

U. S. Bank

V.

Halstead.

sale, for cash, the lands mentioned in the writ, no endorsement having been made on the execution, to receive in payment certain bank notes, according to the provision of the laws of Kentucky. That the lands had been valued at 26 dollars per acre, and, upon the offer for sale, no more than five dollars per acre was bid; which not being three fourths of the appraised value, the land was not sold: thereby conforming his proceedings under the venditioni exponas to the directions of the law of Kentucky of the 21st of December, 1821, which prohibits the sale of property taken under executions, for less than three fourths of its appraised value, without the consent of the owner.

The motion in the Court below was to quash this return, and to direct the Marshal to proceed to sell the land levied upon, without regard to the act above referred to. Upon this motion, the Judges, being divided in opinion, have, according to the provisions of the act of Congress in such cases, certified to this Court the following questions:

1. Whether the said act of the general assembly of Kentucky, when applied to this case, was, or was not, repugnant to the constitution of the United States? and,

2. Whether, if it were not repugnant to the constitution, it would operate upon, and bind, and direct, the mode in which the venditioni exponas should be enforced by the Marshal, and forbid a sale of the land levied upon, unless it commanded three fourths of its value when esti

mated, according to the provisions of the said 1825. act?

In examining these questions, I shall invert the order in which they have been certified to this Court, because, if the law does not apply to the case so as to regulate and govern the conduct of the Marshal, it will supersede the necessity of inquiring into its constitutionality.

It ought to be borne in mind, that this law does not profess, in terms, to extend to Marshals, or to executions issued out of the Courts of the United States; and it is only under some general expressions, that either can, by possibility, be embraced within the law. And it ought not, in justice to the legislature, to be presumed, that it was intended, by any general terms there used, to regulate and control that over which it is so manifest they had no authority.

It cannot certainly be contended, with the least colour of plausibility, that Congress does not possess the uncontrolled power to legislate with respect both to the form and effect of executions issued upon judgments recovered in the Courts of the United States. The judicial power would be incomplete, and entirely inadequate to the purposes for which it was intended, if, after judgment, it could be arrested in its progress, and denied the right of enforcing satisfaction in any manner which shall be prescribed by the laws of the United States. The authority to carry into complete effect the judgments of the Courts, necessarily results, by implication, from the power to ordain and establish such Courts.

U. S. Bank

V.

Halstead.