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Article 1, Section 1



Document 9

Bank of the United States v. Halstead

10 Wheat. 51 1825

It is said, however, that this is the true 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 congress 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 intrusted to every department of the government in a variety of cases. And, as is forcibly observed by the court, in the case of Wayman v. Southard, the same objection arises to delegating this power to the state authorities, as there does to intrusting it to the courts of the United States; it is as much a delegation of legislative power in the one case as in the other. It has been already decided, in the case referred to, that the 34th section of the judiciary act has no application to the practice of the courts of the United States, so as in any manner to govern the form of the process of execution. And all the reasoning of the court, which denies the application of this section to the form, applies with equal force to the effect or extent and operation of the process. If, therefore, congress has legislated at all upon the effect of executions, they have either adopted and limited it to that which would have been given to the like process from the supreme courts of the respective states, in the year 1789, or have provided for changes, by authorizing the courts of the United States to make such alterations and additions in the process itself, as to give it a different effect.

To limit the operation of an execution now, to that which it would have had in the year 1789, would open a door to many and great inconveniences, which congress seems to have foreseen, and to have guarded against, by giving ample powers to the courts, so to mould their process, as to meet whatever changes might take place. And if any doubt existed, whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, the practical construction heretofore given to it, ought to have great weight in determining both questions. It is understood, that it has been the general, if not the universal practice of the courts of the United States, so to alter their executions, as to authorize a levy upon whatever property is made subject to the like process from the state courts; and under such alterations, many sales of land have no doubt been made, which might be disturbed, if a contrary construction should be adopted. That such alteration, both in the form and effect of executions, has been made by the circuit court for the district of Kentucky, is certain, from the case now before us, as, in 1789, land in Kentucky could not be sold on execution.

If the court, then, had the power so to frame and mould the execution in this case, as to extend to lands, the only remaining inquiry is, whether the proceedings on the execution could be arrested and controlled by the state law. And this question would seem to be put at rest by the decision in the case of Wayman v. Southard. The law of Kentucky, as has been already observed, does not in terms profess to exercise any such authority; and if it did, it must be unavailing. An officer of the United States cannot, in the discharge of his duty, be governed and controlled by state laws, any further than such laws have been adopted and sanctioned by the legislative authority of the United States. And he does not, in such case, act under the authority of the state law, but under that of the United States, which adopts such law. An execution is the fruit and end of the suit, and is very aptly called the life of the law. The suit does not terminate with the judgment; and all proceedings on the execution, are proceedings in the suit, and which are expressly, by the act of congress, put under the regulation and control of the court out of which it issues. It is a power incident to every court from which process issues, when delivered to the proper officer, to enforce upon such officer a compliance with his duty, and a due execution of the process, according to its command. But we are not left to rest upon any implied power of the court, for such authority over the officer. By the 7th section of the act of the 2d of March 1793 (1 U.S. Stat. 335), it is delcared, that "it shall be lawful for the several courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective courts, directing the returning of writs and processes, &c., and to regulate the practice of the said courts respectively, in such manner as shall be fit and necessary for the advancement of justice, and especially to the end to prevent delays in proceedings." To permit the marshal, in this case, to be governed and controlled by the state law, is not only delaying, but may be entirely defeating the effect and operation of the execution, and would be inconsistent with the advancement of justice.

Upon the whole, therefore, the opinion of this court is, that the circuit court had authority to alter the form of the process of execution, so as to extend to real as well as personal property, when, by the laws of Kentucky, lands were made subject to the like process from the state courts; and that the act of the general assembly of Kentucky does not operate upon, and bind, and direct the mode in which the venditioni exponas should be enforced by the marshal, so as to forbid a sale of the land levied upon, unless it commanded three-fourths of its value, according to the provisions of the said act; and that, of course, the return of the marshal is insufficient, and ought to be quashed. This renders it unnecessary to inquire into the constitutionality of the law of Kentucky.


The Founders' Constitution
Volume 2, Article 1, Section 1, Document 9
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