U. S. Bank V. Halstead. 1825. But it does not rest altogether upon such implication; for express authority is given to Congress to make all laws which shall be necessary 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. U.S. Bank V. Halstead. 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 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, U. S. Bank V. Halstead. 1825. this writ is specifically named as one to be used, and the control which the Court, in certain cases, 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 U. S. Bank V. Halstead. Courts, or bound in any respect to conform them- 1825. selves thereto. This latitude of discretion was not deemed expedient to be left with the Courts; and the act of the 29th of September, 1789, [2 L. U. S. 72.] entitled, "An act to regulate processes in the Courts of the United States," modifies and limits this power. So far as is material to the present inquiry, it declares, that the forms of writs and executions, and modes of process, in the Circuit and District Courts, in suits at common law, shall be the same in each State respectively, as are now used or allowed in the Supreme Courts of the same. The form of the writ contains substantially directions as to what is to be done under it. Whether mesne or final process, it is on its face so shaped and moulded, as to be adapted to the purposes for which it is intended. This act, therefore, adopts the effect as well as the form of the State processes; and as these were various in the different States, it goes further, and adopts the modes of process, which must include every thing necessary to a compliance with the command of the writ. The effect and operation of executions must, of course, vary in the different States, according to the different forms which were used and allowed. The mode of proceeding, where lands, for instance, were liable to be taken and sold on execution, was different from that which would be necessary where they were only liable to be extended under an elegit. It was therefore necessary to adopt the modes of process, if the process itself was adopted. This act was temporary; and con 1825. U. S. Bank V. Halstead. tinued from time to time, until the permanent law of the 8th of May, 1792, [2 L. U. S. 299.] was passed; the second section of which, so far as relates to the second question, declares, that the forms of writs, executions, and other process, except their style, and the forms and modes of proceeding in suits of common law, in the Courts of the United States, shall be the same as are now used in the said Courts, in pursuance of the act entitled, "an act to regulate processes in the Courts of the United States." This section then goes on to prescribe the rules and principles by which the Courts of equity, and of admiralty and maritime jurisdiction, were to be governed; and then follows this provision: Subject, however, to such alterations and additions, as the said Courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any Circuit or District Court concerning the same. There can be no doubt, that the power here given to the Courts, extends to all the subjects in the preceding parts of the section; and embraces as well the forms of process, and modes of proceeding in suits of common law, as those of equity, and of admiralty and maritime jurisdiction. It will be perceived, that this act presupposes that, in point of practice, the several Courts of the United States had carried into execution the provisions of the act of 1789; and had adopted the forms of process, and modes of proceeding thereon, which were then usual, and |