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1825. sale, for cash, the lands mentioned in the writ, U. S. Bank

y no endorsement having been made on the execuv. tion, to receive in payment certain bank notes, Halstead.

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?

U.S. Bank In examining these questions, I shall invert

Halstead. 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.

Un

1825. But it does not rest altogether upon such impliU. S. Bank

cation; for express authority is given to Con

anon ...V.. gress to make all laws which shall be necessary Halstead.

and proper for carrying into execution all the powers vested by the constitution in the government of the United States, or in any department or officer thereof. The right of Congress, therefore, to regulate the proceedings on executions, and direct the mode, and manner, and out of what property of the debtor satisfaction may be obtained, is not to be questioned, and the only inquiry is, how far this power has been exercised. The critical review taken by the Chief Justice of the various laws of the United States, in the opinion delivered in the case of Wayman v. Southard,' very much abridges an examination, that might otherwise have been proper in this case. The result of that opinion shows, that Congress has adopted, as the guide for the Courts of the United States, the processes which were used and allowed in the Supreme Courts of the several States, in the year 1789. That the 34th section of the Judiciary Act, which requires that the laws of the several States shall be regarded as rules of decision in trials at common law, in the Courts of the United States, has no application to the practice of the Courts, or in any manner calls upon them to pursue the various changes which may take place from time to time in the State Courts, with respect to their processes, and modes of proceeding under them. The princi

a Ante p. 20.

pal inquiry in this case is, whether the laws of 1825. the United States authorize the Courts so to alter the form of the process of execution, which

Halstead. was in use in the Supreme Courts of the several States in the year 1789, as to uphold the venditioni 'exponas issued in this cause. In the year 1792, when the Process Act of 1789 was made perpetual, land in the State of Kentucky could not be taken and sold on execution; a law, however, subjecting lands to executions, was passed shortly thereafter in the same year; and the question now arises, whether the Circuit Court of the United States for the Kentucky District, could so alter the process of execution as to authorize the seizure and sale of land by virtue thereof.

For the decision of this question, it is necessary again to recur to some of the acts of Congress which were under consideration in the case referred to, for the purpose of ascertaining whether they do not provide as well for the effect and operation, as for the form of process.

By the 14th section of the Judiciary Act, (2 L. U. S. 62.) power is given to the Courts of the United States to issue a writ of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. That executions are among the writs hereby authorized to be issued, cannot admit of a doubt; they are indispensably necessary for the beneficial exercise of the jurisdiction of the Courts; and in subsequent parts of the act,

Halstead.

in 1: mitotic

1825. this writ is specifically named as one to be used, U.S. Bank

and the control which the Court, in certain cases, v. is authorized to exercise over it, is pointed out.

The precise limitations and qualifications of this power, under the terms, agreeable to the principles and usages of law, is not, perhaps, so obvious. It doubtless embraces writs sanctioned by the principles and usages of the common law. But it would be too limited a construction, as it respects writs of execution, to restrict it to such only as were authorized by the common law. It was well known to Congress, that there were in use in the State Courts, writs of execution, other than such as were conformable to the usages of the common law. And it is reasonable to conclude, that such were intended to be included under the general description of writs agreeable to the principles and usages of law. If it had been intended to restrict the power to common law writs, such limitation would probably have been imposed in terms. That it was intended to authorize writs of execution sanctioned by the principles and usages of the State laws, is strongly corroborated by the circumstance, that the Process Act, passed a few days thereafter, adopts such as the only writs of execution to be used. Can it be doubted, but that, under the power here given in the Judiciary Act, the Courts of the United States, in those States where lands were liable to be taken and sold on execution, would have been authorized to issue a like process ? But under this act, the Courts are not restricted to the kind of process used in the State

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