23 U.S. 1 (1825), Wayman v. Southard

Citation23 U.S. 1, 6 L.Ed. 253
Party NameWAYMAN and another v. SOUTHARD and another.
Case DateMarch 01, 1825
CourtUnited States Supreme Court

Page 1

23 U.S. 1 (1825)

6 L.Ed. 253

WAYMAN and another


SOUTHARD and another.

United States Supreme Court.

March 01, 1825



THIS cause was certified from the Circuit Court for the District of Kentucky, upon a certificate of a division of opinion between the Judges of that Court, on several motions; which occurred on a motion made by the plaintiffs to quash the Marshal's return on an execution issued on a judgment obtained in that Court, and also to quash the replevin bond taken on the said execution, for the following causes:

1. Because the Marshal, in taking the replevin bond, and making said return, has proceeded under the statutes of Kentucky, in relation to executions; which statutes are not applicable to executions issuing on judgments in this Court, but the Marshal is to proceed with such executions according to the rules of the common law, as modified by acts of Congress, and the rules of this Court, and of the Supreme Court of the United States.

2. That if the statutes of Kentucky, in relation to executions, are binding on this Court, viz. the statute which requires the plaintiff to endorse on the execution, that bank notes of the Bank of Kentucky, or notes of the Bank of the Commonwealth

Page 3

wealth of Kentucky, will be received in payment, or that the defendant may replevy the debt for two years, are in violation of the constitution of the United States, and of the State of Kentucky, and void.

3. That all the statutes of Kentucky which authorize a defendant to give a replevin bond in satisfaction of a judgment or execution, are unconstitutional and void.

4. Because there is no law obligatory on the said Marshal, which authorized or justified him in taking the said replevin bond, or in making the said return on the said execution.

The Court below being divided in opinion on the points stated in the motion, at the request of the plaintiffs, the same were ordered to be certified to this Court.

March 15th, 1824.


The cause was argued by Mr. Cheves, and Mr. Sergeant, for the plaintiffs; and by Mr. Bibb, and Mr. Monroe, for the defendants, at the last term.

On the part of the plaintiffs it was insisted, that the executions issued by the Courts of the United States for the District of Kentucky, are to be regulated and governed by the laws of the United States, and not by the laws of the State of Kentucky.

It was not necessary to analyse the particular provisions of the State laws, because the questions that would arise were of a general nature, and rendered any such statement unnecessary. These questions were,

1. Whether, by the constitution of the United

Page 4

States, Congress has the power to regulate the proceedings of the Federal Courts?

2. Whether Congress has regulated those proceedings, and in what manner?

1. That Congress has the power, was too plain to admit of a doubt. If they have not, they have no power at all, and the whole of that interesting portion of the constitution is inoperative. The clause in question is the third article of the constitution, which establishes and regulates the judicial power. It is a simple text, but it is a very comprehensive one, or it is nothing. It does nothing more, in terms, than authorize Congress to establish Courts, and declare the cases over which they shall have jurisdiction. The grounds of decision are, of course, comprehended. They are to be according to the law of the case. The means for arriving at the decision, or for giving it effect, are not expressly provided. But as the means are indispensable to the attainment of the end, which is the administration of justice, they are necessarily included in the grant; and the power to provide them is, of course, implied in the power to establish judicial tribunals. A Court is a place where justice is judicially administered. [a]To say merely that Courts should be established, would be entirely idle. To say, therefore, that Courts shall be established, means that all the needful and usual incidents to Courts shall be established.

This proposition was so completely self-evident

Page 5

as not to admit of any support from argument or illustration, nor to require any aid from the clause in the first article, giving Congress power to make all laws necessary and proper for carrying into execution the other power expressly granted, or vested in the government of the United States, or in any department or officer thereof. That it was so understood is plain, from the fifth, sixth, and seventh articles of the original amendments, which are limitations of the generality of a power otherwise unlimited.

That it was not the design of the constitution finally and irrevocably to adopt any existing system of State legislation as to process, by reference thereto, is quite certain, because there is no such reference. It could not refer by implication to the means employed in the State Courts, because they were many, and no one could say which was referred to. It would have been unwise, because it would have made the system invariable, and capable of no amendment. It could not have meant to refer to the varying forms adopted by the State Courts, for it was impossible to anticipate how they would be distributed; these are subjects of jurisdiction, for which the State institutions could afford no example, because they had no such tribunals, the jurisdiction being exclusive; and it would have made the existence of the national judiciary dependent upon State legislation.

It must, therefore, be taken for granted, that the power of Congress in arranging the Federal judicial tribunals, and the means to be employed

Page 6

by them for effectuating the design of their establishment, was plenary, and subject to no exceptions but those which the constitution itself has made. The acts of Congress, to be referred to, would show that this had been the uniform understanding. Nor is the power of Congress on this subject greater in cases where the United States are a party, than in other cases, where the controversy is between individuals.

2. The next question was, what had been done by Congress?

The act of the 24th of September, 1789, c. 20. established the judicial tribunals. The 34th 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.' But this merely gives the ground of decision; it does not give the means of attaining the decision, or of giving it effect.

The powers of the Courts are conferred by the sections from 13 to 17 inclusive. The Courts being thus established, their jurisdiction defined, or to be defined, and the nature of their proceedings distinguished, the power to issue the common law writs of mandamus and prohibition, is vested in the Supreme Court by the latter part of the 13th section. The 14th section then gives them power to issue 'writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for

Page 7

the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' 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. [b]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

Page 8

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 theforms 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...

To continue reading

Request your trial
95 practice notes
  • 7 Cal.4th 797, S033327, People v. Davis
    • United States
    • California United States State Supreme Court (California)
    • 16 Mayo 1994
    ...enlargement of a criminal statute. (Bouie v. City of Columbia, supra, 378 U.S. at p. 353 [12 L.Ed.2d at pp. 899-900]; Rose v. Locke, supra, 23 U.S. 48.) Accordingly, we now consider whether the trial court prejudicially erred by instructing the jury pursuant to a modified instruction on via......
  • 101 S.W.2d 977 (Mo. 1937), 34481, Clark v. Austin
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 8 Febrero 1937
    ...It has been the law of the United States from the beginning. [Judiciary Act of 1789, sec. 17, 1 Stat. at Large, p. 83; Wayman v. Southard, 23 U.S. 1, 41, 6 L.Ed. 253; Bank of United States v. Halstead, 23 U.S. 51, 61, 6 L.Ed. 264.] For over 600 years Parliament has passed procedural laws in......
  • 186 So. 659 (Miss. 1939), 33566, Equitable Life Assur. Soc. of United States v. Gex' Estate
    • United States
    • Mississippi United States State Supreme Court of Mississippi
    • 27 Febrero 1939
    ...Ala. 130, 30 So. 611, 87 Am. St. Rep. 49; Gorsch v. Birkhahn, 151 A. 121, 8 N.J. Misc. 491; 2 High, Inj., sec. 1443; Wayman v. Southard, 23 U.S. 1, 10 Wheat. 1, 29, 6 L.Ed. 253; 24 Am. & Eng. [184 Miss. 602] Enc. Law (1 Ed.), sec. 496; Hines & Hobbs v. Rawson, 40 Ga. 356, 2 Am. Rep.......
  • 103 N.W. 748 (N.D. 1904), Berry v. Evendon
    • United States
    • North Dakota United States State Supreme Court of North Dakota
    • 10 Septiembre 1904
    ...are subject to the statute of limitations. Bobinson v. Stone, 45 L. R. A. 66; Hughes v. Brown, 8 L. R. A. 480; Elmendorf v. Taylor, 23 U.S. 10, 6 L.Ed. 152; Smith v. Clay, 3 Bro. Ch. 640; Houts v. Hoyne, 84 N.W. 773. ON REHEARING. Brennan & Gray, for appellant. Plaintiff must elect whet......
  • Request a trial to view additional results
84 cases
  • 179 N.W.2d 533 (Iowa 1970), 54194, Farrell v. State Bd. of Regents
    • United States
    • Iowa United States State Supreme Court of Iowa
    • 2 Septiembre 1970
    ...co-ordinantion.' See also Yakus v. United States, 321 U.S. 414, 425, 64 S.Ct. 660, 668, 88 L.Ed. 834; Wayman v. Southard, 10 Wheat. 1, 23 U.S. 1, 6 L.Ed. 253; and 27 Yale L.J. 892, 901. In the case at bar the legislature did not give the Board carte blanche authority to use funds collected ......
  • 60 P. 1068 (Kan. 1900), 11,723, State v. Johnson
    • United States
    • Kansas United States State Supreme Court of Kansas
    • 5 Mayo 1900
    ...831] Marshall said: "The legislature makes, the executive executes, and the judiciary construes the law." ( Wayman v. Southard, 23 U.S. 1, 10 Wheat. 1, 6 L.Ed. 253.) In the Sinking-fund Cases, 99 U.S. 700, 761, 25 L.Ed. 496, 25 L.Ed. 504, Mr. Justice Field said: "The distinct......
  • 371 A.2d 140 (Md.App. 1977), 1366, State v. Wilson
    • United States
    • Maryland Court of Special Appeals of Maryland
    • 8 Marzo 1977
    ...3, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Moore v. Arizona, 1 U.S. 25, 9 S.Ct. 188, 38 L.Ed.2d 183 (1973); and Dillingham v. United States, 23 U.S. 6, 96 S.Ct. 303, 6 L.Ed.2d 205 (1975). The Court of Appeals has handed down the additional cases of Epps v. State, 276 Md. 96, 35 A.2d 62; Smith ......
  • 186 So. 659 (Miss. 1939), 33566, Equitable Life Assur. Soc. of United States v. Gex' Estate
    • United States
    • Mississippi United States State Supreme Court of Mississippi
    • 27 Febrero 1939
    ...Ala. 130, 30 So. 611, 87 Am. St. Rep. 49; Gorsch v. Birkhahn, 151 A. 121, 8 N.J. Misc. 491; 2 High, Inj., sec. 1443; Wayman v. Southard, 23 U.S. 1, 10 Wheat. 1, 29, 6 L.Ed. 253; 24 Am. & Eng. [184 Miss. 602] Enc. Law (1 Ed.), sec. 496; Hines & Hobbs v. Rawson, 40 Ga. 356, 2 Am. Rep.......
  • Request a trial to view additional results
11 books & journal articles
  • Delegation reconsidered: a delegation doctrine for the modern administrative state.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 40 Nbr. 1, January 2017
    • 1 Enero 2017
    ...Part III. (42.) 23 U.S. (10 Wheat.) 1 (1825). (43.) See id. at 46. (44.) Act of May 8, 1792, 1 Stat. 275. (45.) Id. at 276; see Way man, 23 U.S. at 41. (46.) Wayman, 23 U.S. at 42. (47.) Id. at 42-43. (48.) Id. at 43. (49.) Id. Some scholarly commentaries on the English law with respect to ......
  • Contested elections as secret weapon: legislative control over judicial decision-making.
    • United States
    • Albany Law Review Vol. 75 Nbr. 4, June - June 2012
    • 22 Junio 2012
    ...designate certain powers and responsibilities to the judicial branch. (60) Mabry, 58 Tenn. (11 Heisk.) at 690 (quoting Wayman v. Southard, 23 U.S. 1, 46 (1825)). (61) Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995) (citing TENN. CONST. art. II, [section][section] 1, 2......
  • Ascertaining the laws of the several states: positivism and judicial federalism after Erie.
    • United States
    • University of Pennsylvania Law Review Vol. 145 Nbr. 6, June - June 1997
    • 1 Junio 1997
    ...concerns of the sort that might arise if Congress delegated substantive lawmaking power to federal courts. Compare Wayman v. Southard, 23 U.S. 1, 19, 10 Wheat. 1, 42-43 (1825) (upholding Congress's delegation of rulemaking power to courts because such power is not "strictly and exclusi......
  • A constitutional theory of imperative participation: delegated rulemaking, citizens' participation and the separation of powers doctrine.
    • United States
    • Albany Law Review Vol. 79 Nbr. 1, September - September 2015
    • 22 Septiembre 2015
    ...23, 1 Stat. 95 (1789); Regulation of Trade and Intercourse with the Indian Tribes, ch. 33, 1 Stat. 137 (1790). (143) Wayman v. Southard, 23 U.S. 1, 43 (1825). (144) Humphrey's Ex'r v. United States, 295 U.S. 602, 628, 629 (1935). (145) A. L. A. Schechter Poultry Corp. v. United States, 295 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT