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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; v.
Halstead. 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. tinued from time to time, until the permanent law
of the 8th of May, 1792, [2 L. U. S. 299.] U. Ş. Bank
was passed; the second section of which, so far Halstead.
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
allowed in the Supreme Courts of the respective 1825. States; and it ratifies and continues such practice, USA and extends it to all the proceedings in suits. v.
Halstead. This course was no doubt adopted, as one better calculated to meet the views and wishes of the several States, than for Congress to have framed an entire system for the Courts of the United States, varying from that of the State Courts. They had in view, however, State systems then in actual operation, well known and understood, and the propriety and expediency of adopting which, they would well judge of and determine. Hence the restriction in the act, now used and allowed in the Supreme Courts of the several States. There is no part of the act, however, that looks like adopting prospectively, by positive legislative provision, the various changes that might thereafter be made in the State Courts. Had such been the intention of Congress, the phraseology of the act would doubtless have been adapted to that purpose. It was, nevertheless, foreseen, that changes probably would be made in the processes and proceedings in the State Courts, which might be fit and proper to be adopted in the Courts of the United States ; and, not choosing to sanction such changes absolutely in anticipation, power is given to the Courts over the subject, with a view, no doubt, so to alter and mould their processes and proceedings, as to conform to those of the State Courts as nearly as might be, consistently with the ends of justice. This authority must have been given to the Courts, for some substantial and benefictal
1825. purpose. If the alterations are limited to mere U.S. Bank 1
form, without varying the effect and operation of the process, it would be useless. The power here given, in order to answer the object in view, cannot be restricted to form as contradistinguished from substance, but must be understood as vesting in the Courts authority, so to frame, mould, and shape the process, as to adapt it to the purpose intended.
The general policy of all the laws on this subject is very apparent. It was intended to adopt, and conform to, the State process and proceedings, as the general rule, but under such guards and checks as might be necessary to insure the due exercise of the powers of the Courts of the United States. They have authority, therefore, from time to time to alter the process, in such manner as they shall deem expedient, and likewise to make additions thereto, which necessarily implies a power to enlarge the effect and operation of the process. The exercise of this power is, to be sure, left in the discretion of the Court ; but the object and purpose for which it is given, is so plainly marked, that it is hardly to be presumed the Courts would omit carrying it into execution, without some substantial reason. And, the better to insure this, authority is given to this Court, to prescribe to the Circuit and District Courts, such regulations on the subject as it shall think proper. And should this trust not be duly and discreetly exercised by the Courts, it is at all times in the power of Congress to correct the evil by more specific legislation. But so long as
the Courts of the United States shall make such 1825. alterations or additions in their process of exe- Yo
U. S. Bank cution as only to reach property made subject to execution from the State Courts, there would ne seem to be no just ground for complaint. When, therefore, the law of Kentucky made land subject to executions, it was carrying into effect the spirit and object of the act of Congress, for the Circuit Court so to alter and add to the form of its execution, as to authorize the taking and selling the debtor's land.
It is said, however, that this is the exercise of legislative power, which could not be delegated by Congress to the Courts of justice. But this objection cannot be sustained. There is no doubt that Congress might have legislated more specifically on the subject, and declared what property should be subject to executions from the Courts of the United States. But it does not follow, that because Congrees might have done this, they necessarily must do it, and cannot commit the power to the Courts of justice. Congress might regulate the whole practice of the Courts, if it was deemed expedient so to do: but this power is vested in the Courts; and it never has occurred to any one that it was a delegation of legislative power. The power given to the Courts over their process is no more than authorizing them to regulate and direct the conduct of the Marshal, in the execution of the process. It relates, therefore, to the ministerial duty of the officer; and partakes no more of legislative power, than that discretionary authority in