Some preliminary objections have been made by the counsel for the defendants, to the manner in which these questions are brought before the Court, which are to be disposed of before the questions themselves can be considered.
It is said that the proceeding was ex parte. The law which empowers this Court to take cognizance of questions adjourned from a Circuit, gives jurisdiction over the single point on which the Judges were divided, not over the whole cause. The inquiry, therefore, whether the parties
The defendants also insist, that the judgment, the execution, and the return, ought to be stated, in order to enable this Court to decide the question which is adjourned.
But the questions do not arise on the judgment, or the execution; and, so far as they depend on the return, enough of that is stated, to show the Court, that the Marshal had proceeded according to the late laws of Kentucky. In a general question respecting the obligation of these laws on the officer, it is immaterial whether he has been exact, or otherwise, in his observance of them. It is the principle on which the Judges were divided, and that alone is referred to this Court.
In arguing the first question, the plaintiffs contend, that the common law, as modified by acts of Congress, and the rules of this Court, and of the Circuit Court by which the judgment was rendered, must govern the officer in all his proceedings upon executions of every description.
One of the counsel for the defendants insists, that Congress has no power over executions issued on judgments obtained by individuals; and that the authority of the States, on this subject, remains unaffected by the constitution. That the government of the Union cannot, by law, regulate the conduct of its officers in the service of executions on judgments rendered in the Federal Courts; but that the State legislatures retain complete authority over them.
The Court cannot accede to this novel construction.
That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer. The terms of the clause, neither require nor admit of elucidation. The Court, therefore, will only say, that no doubt whatever is entertained on the power of Congress over the subject. The only inquiry is, how far has this power been exercised?
The 13th section of the Judiciary Act of 1789, c. 20. describes the jurisdiction of the Supreme Court, and grants the power to issue writs of prohibition and mandamus, in certain specified cases. The 14th section enacts, "that all the before mentioned Courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." The 17th section authorizes the Courts "to make all necessary rules for the orderly conducting business
These sections have been relied on by the counsel for the plaintiffs.
The words of the 14th are understood by the Court to comprehend executions. An execution is a writ, which is certainly "agreeable to the principles and usages of law."
There is no reason for supposing that the general term "writs," is restrained by the words, "which may be necessary for the exercise of their respective jurisdictions," to original process, or to process anterior to judgments. The jurisdiction of a Court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment, in which jurisdiction is to be exercised. It is, therefore, no unreasonable extension of the words of the act, to suppose an execution necessary for the exercise of jurisdiction. Were it even true, that jurisdiction could technically be said to terminate with the judgment, an execution would be a writ necessary for the perfection of that which was previously done; and would, consequently, be necessary to the beneficial exercise of jurisdiction. If any doubt could exist on this subject, the 18th section, which treats of the authority of the Court over its executions as actually existing, certainly implies, that the power to issue them had been granted in the 14th section. The same implication is afforded by the 24th
On the clearest principles of just construction, then, the 14th section of the Judiciary Act must be understood, as giving to the Courts of the Union, respectively, a power to issue executions on their judgments.
But this section provides singly for issuing the writ, and prescribes no rule for the conduct of the officer while obeying its mandate. It has been contended, that the 34th section of the act supplies this deficiency.
That section enacts, "that the laws of the several States, except where the constitution, treaties, or statutes, of the United States, shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the Courts of the United States, in cases where they apply."
This section has never, so far as is recollected, received a construction in this Court; but it has, we believe, been generally considered by gentlemen of the profession, as furnishing a rule to guide the Court in the formation of its judgment; not one for carrying that judgment into execution. It is "a rule of decision," and the proceedings after judgment are merely ministerial. It is, too, "a rule of decision in trials at
But, by the words of the section, the laws of the State furnish a rule of decision for those cases only "where they apply;" and the question arises, do they apply to such a case? In the solution of this question, it will be necessary to inquire whether they regulate the conduct of the officer serving the execution; for it would be contrary to all principle to admit, that, in the trial of a suit depending on the legality of an official act, any other law would apply than that which had been previously prescribed for the government of the officer. If the execution is governed by a different rule, then these laws do not apply to a case depending altogether on the regularity of the proceedings under the execution. If, for example, an officer take the property of A., to satisfy an execution against B., and a suit be brought by A., the question of property must depend entirely on the law of the State. But if an execution issue against A., as
The 34th section, then, has no application to the practice of the Court, or to the conduct of its officer, in the service of an execution.
The 17th section would seem, both from the context and from the particular words which have been cited as applicable to this question, to be confined to business actually transacted in Court, and not to contemplate proceedings out of Court.
The act to "regulate processes in the Courts of the United States," passed in 1789, has also been referred to. It enacts, "that until farther provision shall be made, and except where by this act, or other statutes of the United States,
This act, so far as respects the writ, is plainly confined to form. But form, in this particular, it has been argued, has much of substance in it, because it consists of the language of the writ, which specifies precisely what the officer is to do. His duty is prescribed in the writ, and he has only to obey its mandate.
This is certainly true, so far as respects the object to be accomplished, but not as respects the manner of accomplishing it. In a fi. fa., for example, the officer is commanded to make of the goods and chattels of A.B. the sum of money specified in the writ; and this sum must, of course, be made by a sale. But the time and manner of the sale, and the particular goods and chattels which are liable to the execution, unless, indeed, all are liable, are not prescribed.
To "the forms of writs and executions," the law adds the words, "and modes of process." These words must have been intended to comprehend something more than "the forms of writs and executions." We have not a right to consider them as mere tautology. They have a meaning, and ought to be allowed an operation more extensive than the preceding words. The term is applicable to writs and executions, but it is also applicable to every step taken in a cause.
This construction is supported by the succeeding sentence, which is in these words: "and the forms and modes of proceedings, in causes of equity, and of admiralty, and maritime jurisdiction, shall be according to the course of the civil law."
The preceding sentence had adopted the forms of writs and executions, and the modes of process, then existing in the Courts of the several States, as a rule for the Federal Courts, "in suits at common law." And this sentence adopts "the forms and modes of proceedings" of the civil law, "in causes of equity, and of admiralty and maritime jurisdiction." It has not, we bebeen
It has been suggested, that the words "in suits at common law," restrain the preceding words to proceedings between the original writ and judgment. But these words belong to "writs and executions," as well as to "modes of process," and no more limit the one than the other. As executions can't issue only after a judgment
But the legal sense of the word suit adheres to the case after the rendition of the judgment, and it has been so decided.
This construction is fortified by the proviso, which is in these words: "Provided, that on judgments, in any of the cases aforesaid, where different kinds of executions are issueable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his election to take out a capias ad satisfaciendum in the first instance, and be at liberty to pursue the same, until a tender of the debt and costs in gold or silver shall be made."
The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some measure, to modify the enacting clause. The object of this proviso is to enable the creditor to take out a capias ad satisfaciendum in the first instance, and to pursue it until the debt be satisfied, notwithstanding any thing to the contrary in the enacting clause. It is perfectly clear, that this provision is no exception from that part of the enacting clause which relates to the "forms of writs and executions," and can be an exception to that part only which relates to the "modes of process." It secures the right to elect the capias ad satisfaciendum, in the first instance, where that writ was at all issueable under the law of the State; and to pursue it until the debt and
This law, though temporary, has been considered with some attention, because the permanent law has reference to it, and adopts some of its provisions. It was continued until 1792, when a perpetual act was passed on the subject. This, whether merely explanatory, or also amendatory of the original act, is the law which must decide the question now before the Court.
It enacts, "that the forms of writs, executions, and other process, except their style, and the forms and modes of proceeding in suits in those of common law, shall be the same as are now used in the said Courts respectively, in pursuance of the act entitled, "an act to regulate processes in the Courts of the United States," except so far as may have been provided for by the act to establish the judicial Courts of the United States; 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.
This act is drawn with more deliberation than the original act; and removes, so far as respects
A comparison of the proviso to the permanent act, with that which had been introduced into the temporary act, will serve to illustrate the idea, that the proceedings under the execution were contemplated in the enacting clause, and supposed to be prescribed by the words "modes of process,"
The proviso to the act of 1789, authorizes the creditor to sue out a capias ad satisfaciendum in the first instance, and to continue it "until a tender of the debt in gold and silver shall be made." The proviso to the act of 1798, omits this last member of the sentence.
The appraisement laws existing in some of the States, authorized a debtor taken in execution to tender property in discharge of his person; and this part of the proviso shows an opinion, that the enacting clause adopted this privilege, and an intention to deprive him of it. The enacting clause of the act of 1793, adopts the State law, to precisely the same extent with the enacting clause of the act of 1789; and the omission of the clause in the proviso which has been mentioned, leaves that part of the adopted law, which allows the creditor to discharge his person by the tender of property, in force.
The subject was resumed in 1793, in the act, entitled, "An act in addition to the act entitled an act to establish the judicial Courts of the United States."
The 8th section enacts, "that, where it is now required by the laws of any State, that goods taken in execution on a writ of fieri facias shall be appraised previous to the sale thereof, it shall be lawful for the appraisers appointed under the authority of the State, to appraise goods taken in execution on a fieri facias issued out of any Court of the United States, in the same manner
This act refers to the appraisement laws of the respective States, which were in force at the time of its passage, without distinguishing between those which were enacted before, and those which were enacted after, September, 1789. The fact, however, is understood to be, that they were enacted previous to that time, generally as temporary laws, and had been continued by subsequent acts. They required, so far as they have been inspected, that appraisers should be appointed by the local tribunals to appraise the property taken in execution. Supposing laws of this description to have been adopted by the act of 1789, the regular mode of proceeding under them would have been, for the Courts of the United States, respectively, to appoint appraisers, who should perform the same duty with respect to executions issuing out of the Courts of the Union, as was performed by appraisers appointed under State authority, with respect to executions issuing out of the Courts of the State. It was unquestionably much more convenient to employ that machinery which was already in operation, for such a
The act, passed in 1800, "for the relief of persons imprisoned for debt," takes up a subject on which every State in the Union had acted previous to September, 1789. It authorizes the Marshal to allow the benefit of the prison rules to those who are in custody under process issued from the Courts of the United States, in the same manner as it is allowed to those who are imprisoned under process issued from the Courts of the respective States.
Congress took up this subject in 1792, and provided for it by a temporary law, which was
The suggestion is certainly entitled to consideration. But were it true, that the Process Acts would, on correct construction, adopt the State laws which give to a debtor the benefit of the rules, this single act of superfluous legislation, which might be a precaution suggested by the delicacy of the subject, by an anxiety to insure such mitigation of the hardships of imprisonment, as the citizens of the respective States were accustomed to see, and to protect the officer from the hazard of liberating the person of an imprisoned debtor, could not countervail the arguments to be drawn from every other law passed in relation to proceedings on executions, and from the omission to pass laws, which would certainly be requisite to direct the conduct of the officer, if a rule was not furnished by the Process Act.
The resolution of Congress under which the use of the State jails was obtained, "recommended it to the legislatures of the several States, to pass laws, making it expressly the duty of the keepers of their jails, to receive, and safe keep therein, all prisoners committed under the authority of the United States, until they shall be discharged by due course of the laws thereof." The laws of the States, so far as they have been examined, conform to this resolution. Doubts might well be entertained, of permitting the prisoner, under this resolution, and these laws, to have the benefit of the rules. The removal of such doubts seems to have been a prudent precaution.
The case of Palmer v. Allen, (7 Cranch's Rep. 550.) may be considered, at first sight, as supporting the opinion, that the acts for regulating processes in the Courts of the United States, do not adopt the laws of the several States, as they stood in September, 1789, as the rule by
In that case, as appears from the statement of the Judge who delivered the opinion of this Court, Palmer, as deputy Marshal, arrested Allen on a writ sued out of the District Court of Connecticut, by the United States, to recover a penalty under a statute of the United States. Bail was demanded, and, not being given, Allen was committed to prison. For this commitment Allen brought an action of trespass, assault and battery, and false imprisonment, in the State Court. Palmer pleaded the whole matter in justification, and, upon demurrer, the plea was held insufficient. The judgment of the State Court was brought before this Court by writ of error, and was reversed; this Court being of opinion, that the plea was a good bar to the action.
The demurrer was sustained in the State Court, because, by an act of the legislature of Connecticut, the officer serving process similar to that which was served by Palmer, must, before committing the person on whom it is served to jail, obtain a mittimus from a magistrate of the State, authorizing such commitment; and that Court was of opinion, that the act of Congress had adopted this rule so as to make it obligatory on the officer of the Federal Court.
This Court was of opinion, that the plea made out a sufficient justification, and, therefore, reversed the judgment of the State Court. This
The act of 1792, for regulating processes in the Courts of the United States, enacts, that "the modes of proceeding in suits, in those of common law, shall be the same as are now used in the said Courts respectively, in pursuance of the act, entitled, an act to regulate processes in the Courts of the United States."
The endorsement of a mittimus on the writ had never been used, as appears by the opinion in the case of Palmer v. Allen, in the Courts of the United States for the District of Connecticut. In connexion with this fact, the provision of the act of 1792 subjects the modes of proceeding under the laws of the State, "to such alterations and additions as the said Courts, respectively, shall, in their discretion, deem expedient." The uniform course of that Court, from its first establishment, dispensing with this mittimus, may be considered as the alteration in this particular which the Court was authorized by law to make.
It may very well be doubted, too, whether the act of Congress which conforms the modes of proceeding in the Courts of the Union to those in the several States, requires the agency of State officers, in any case whatever not expressly mentioned. The laws of the Union may permit
The reasons assigned by the Court for its decision in the case of Palmer v. Allen, so far from implying an opinion that the Process Act does not adopt the laws of the several States as giving a rule to be observed by the officer in executing process issuing from the Courts of the United States, recognises the general principle, and shows why that case should be taken out of its operation.
So far as the Process Act adopts the State laws, as regulating the modes of proceeding in suits at common law, the adoption is expressly confined to those in force in September, 1789. The act of Congress does not recognise the authority of any laws of this description which might be afterwards passed by the States. The system, as it then stood, is adopted, "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."
This provision enables the several Courts of the Union to make such improvements in its
The counsel for the defendants contend, that this clause, if extended beyond the mere regulation of practice in the Court, would be a delegation of legislative authority which Congress can never be supposed to intend, and has not the power to make.
But Congress has expressly enabled the Courts to regulate their practice, by other laws. The 17th section of the Judiciary Act of 1789, c. 20. enacts, "That all the said Courts shall have power" "to make and establish all necessary rules for the orderly conducting business in the said Courts, provided such rules are not repugnant to the laws of the United States;" and the 7th section of the act, "in addition to the act, entitled, an act to establish the judicial Courts of the United States," (act of 1793, ch. 22. s. 7.) details more at large the powers conferred by the 17th section of the Judiciary Act. These sections give the Court full power over all matters of practice; and it is not reasonable to suppose that the Process Act was intended solely for the same object. The language is different; and the two sections last mentioned have no reference to State laws.
It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative.
The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details. To determine the character of the power given to the Courts by the Process Act, we must inquire into its extent. It is expressly extended to those forms and modes of proceeding in suits at common law, which were used in the State Courts in September, 1789, and were adopted by that act. What, then, was adopted?
Now, suppose the power to alter these modes of proceeding, which the act conveys in general terms, was specifically given. The execution orders the officer to make the sum mentioned in the writ out of the goods and chattels of the debtor. This is completely a legislative provision, which leaves the officer to exercise his discretion respecting the notice. That the legislature
The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.
Congress, at the introduction of the present government, was placed in a peculiar situation. A judicial system was to be prepared, not for a consolidated people, but for distinct societies, already possessing distinct systems, and accustomed to laws, which, though originating in the same great principles, had been variously modified. The perplexity arising from this state of things was much augmented by the circumstance that, in many of the States, the pressure of the moment had produced deviations from that course of administering justice between debtor and creditor, which consisted, not only with the spirit of the constitution, and, consequently, with
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 delegation
As construed by the Court, this section is the recognition of a principle of universal law; the principle that in every forum a contract is governed by the law with a view to which it was made.
But the question respecting the right of the Courts to alter the modes of proceeding in suits at common law, established in the Process Act, does not arise in this case. That is not the point on which the Judges at the circuit were divided, and which they have adjourned to this Court. The question really adjourned is, whether the laws of Kentucky respecting executions,
If they be, their applicability must be maintained, either in virtue of the 34th section of the Judiciary Act, or in virtue of an original inherent power in the State legislatures, independent of any act of Congress, to control the modes of proceeding in suits depending in the Courts of the United States, and to regulate the conduct of their officers in the service of executions issuing out of those Courts.
That the power claimed for the State is not given by the 34th section of the Judiciary Act, has been fully stated in the preceding part of this opinion. That it has not an independent existence in the State legislatures, is, we think, one of those political axioms, an attempt to demonstrate which, would be a waste of argument not to be excused. The proposition has not been advanced by counsel in this case, and will, probably, never be advanced. Its utter inadmissibility will at once present itself to the mind, if we imagine an act of a State legislature for the direct and sole purpose of regulating proceedings in the Courts of the Union, or of their officers in executing their judgments. No gentleman, we believe, will be so extravagant as to maintain the efficacy of such an act. It seems not much less extravagant, to maintain, that the practice of the Federal Courts, and the conduct of their officers, can be indirectly regulated by the State legislatures by an act professing to regulate
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.
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