by John Marshall

“ 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 but for the effect. The Court is nothing without its process. To leave this dependent upon 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. ”

“ Various regulations prevail in the States, as to what property is liable to execution. In some, lands are exempt, except upon an elegit; in others, certain personal property is exempt; in all, the ca. sa. is variously modified. How are all these conflicting regulations to be reconciled, but by resorting to the wise and safe provision contained in the 34th section of the Judiciary Act, which gives the same rule as to the substance of the remedy which applies to the right in controversy, and the same for the Federal Courts as is used at the time in the State Courts? ”

“ Every Court has, like every other public political body, the power necessary and proper to provide for the orderly conduct of its business. This may be compared to the separate power which each house of Congress has to determine the rules of its proceedings, and to punish contempts. This is altogether different from the general legislative power, which Congress cannot delegate, and never has attempted to delegate, to either house, separately, or to the executive and judicial departments of the government. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ If the mittimus should be required by the act of Congress, it should be awarded by a Judge of the United States, not by a State magistrate, in like manner as an order for bail, in doubtful cases, is endorsed by a Judge of the United States, in cases where the State law requires such endorsement to be made by the Judge or Justice of the Court from which the process issues. The mittimus is a commitment for want of bail; and the magistrate who awards it, decides, in doing so, that it is a case in which bail is demandable. But in the particular case of Allen, that question was decided by the law. ”

“ 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. ”

“ 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 execution,' as well as to 'modes of process,' and no more limit the one than the other. As executions can issue only after a judgment the words, 'in suits at common law,' must apply to proceedings which take place after judgment. ”

“ 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. ”

“ 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,' in the one law, and 'modes of proceeding,' in the other. ”

“ 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. ”

“ The law makes it his duty to do that which he might do in the exercise of his discretion, and relieves him from the responsibility attendant on the exercise of discretion, in a case where his course is not exactly prescribed, and he deviates from that which is most direct. ”