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the exercise of their respective jurisdictions, and 1825. agreeable to the usages and principles of law." Wayman This is to be taken ad referendum, according to the function they were to perform. They were to be common law Courts, proceeding according to the course of the common law, with power to issue writs agreeably to the principles and usages of that law. The common law remedies were, therefore, adopted by the Judiciary Act of 1789, c. 20. and it has been judicially determined that these remedies are to be not according to the varying practice of the State Courts, but according to the principles of the common law, as settled in England. This, of course, is to be understood with the exception of such modifications as have been made by acts of Congress, the rules of Court made under those acts, and the State laws in force in 1789.

The 18th section, considering that there would be an immediate right of execution by the previous provisions, gave a limited stay. There are further provisions to the same effect in the 23d, 24th, and 25th sections. There are various other provisions, but the result is, in all but the excepted cases, to give an immediate right of execution, or after a limited delay.

This act was followed immediately by the Process Act of the 29th of September, 1789, c. 21. The second section enacts, "that the forms of writs, except their style, and modes of process,' &c." in the Circuit and District Courts, in suits

a See Robinson v. Campbell, 3 Wheat. Rep. 221.

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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 act was limited to the end of the next session. It was continued by an act of the 26th of May, 1790; and, by the act of the 8th of May, 1792, c. 137. [xxxvi.] its provisions were made permanent.

Whether these acts, in their terms, are to be understood as embracing the forms of process only, or also as describing the effect, was not, perhaps, very material to inquire. The words, understood in their natural sense, comprehend the whole. The proviso as to executions shows that they were so understood. But it is entirely certain, that by the conjoint operation of the Judiciary Act, and the Process Act, the means to be used in the administration of justice, as to their nature, form, and effect, were fixed upon a permanent basis; subject to alteration by no other legislative power than that of Congress, and by the power given to the Courts of the United States in the second section of the act of the 8th of May, 1792, c. 137. [xxxvi.] With the exception of changes since made by Congress, and by the Court, the remedies now to be used are the same as were used in September, 1789. Whoever would know what are the remedies in a given case, must inquire what they were in the particular State at that time. And these remedies are of exactly the same efficacy, and have the same power and operation, now as then. Any thing short of this would be inadequate to the end to be accomplished. The process is nothing

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but for the effect. The Court is nothing with- 1825. out its process. To leave this dependent upon Waymau State legislation, would be to leave the administration of justice in the Federal Courts at the mercy of the States. Congress has made many changes, and many more are wanting. The Courts of the United States have made rules for regulating the practice. But in no case have changes in any of these particulars been introduced into the Courts of the Union, either by the legislation of the States, or the rules of the State Courts.

In

But, independent of these general considerations, the question has been repeatedly subjected to judicial determination both in the Circuit Courts and in this Court. Thus, in the United States v. Worson," it was held, that the provision in the 34th section of the Judiciary Act of 1789, c. 20. making the State laws rules of decision in the Courts of the Union, did not apply to the process and practice of the Federal Courts. Campbell v. Robinson, this Court held, that the remedies in the Courts of the United States, both at common law and in equity, are to be, not according to the fluctuating practice of the State Courts, but according to the principles of common law and equity as distinguished and defined in that country from which we derive our knowledge of those principles. The case of Palmer

a 1 Gallis. Rep. 5. 18. See also 1 Peters' Rep. Circ. Co.

484.

b 3 Wheat. Rep. 212. 221.

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v. Allen" also confirms the principle for which the plaintiffs insisted.

The value of the process of execution depends upon the time when it may be had, and the manner in which it may be executed, and the subjects upon which it may be levied. If it should be asked, whether a State may not withdraw certain kinds of property from execution, the answer would be, that this was not the question here, and it was not necessary to go out of the case. If the power to establish a judiciary necessarily include the power to confer upon it the authority to use the needful remedies, it must certainly be allowed that the States cannot hinder and destroy the process of execution. Such a right is wholly incompatible with the power of the Union in Congress assembled. If it may withhold one process, it may withhold all. If it can modify, i. e. impair, or weaken, the efficacy of the process, the consequence is the same. The Courts would be then left with the power to adjudicate, but without the power to enforce their decisions. But here the property sought to be reached is subject to execution by the laws of the State; and where the end is permitted, the means of attaining it must be left free.

It was also insisted, that the statutes of Kentucky in question were repugnant to the constitution of the United States, as impairing the obligation of contracts, and as being tender laws. But as the Court intimated that the cause might

a 7 Cranch's Rep. 550.

be upon the other points, the argument upon the 1825. constitutionality of the act was not pressed.

On the part of the defendants it was insisted, 1. That Congress has no power, under the constitution, to enact an execution law, governing the substance of the proceedings on executions from the Federal Courts, in suits between private individuals.

2. That, supposing Congress to possess such a power, it could not delegate its authority to the Supreme and other Courts of the United States.

3. That the acts of Congress applicable to this subject, do not attempt to delegate that authority to the Courts of the Union.

4. That Congress has not attempted to establish a uniform execution law throughout the United States, nor adopted the laws of the States in force at any particular period, but left the process of execution to be regulated from time to time by the local State laws.

In support of the first point, a distinction was drawn between cases arising from the character of the parties, such as citizens of different States, aliens, &c. and cases arising from the nature of the controversy, as involving the constitution, laws, and treaties of the Union, and over which the Federal Courts had either an original or appellate jurisdiction. The first class of cases arose either under foreign or municipal law, which must be applied as the rule of decision. The remedy followed as a part of the local law of the State where the suit was brought. It was not necessary for Congress to exercise any legis

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