STORY, Circuit Justice.
This cause involves the consideration of some important questions, as to the adoption of the laws of the states in regard to writs of execution, and the right to the gaol liberties by imprisoned debtors, which do not seem hitherto to have undergone any direct adjudication. The principal question is. whether, in the present case, the imprisoned debtors, having obtained the privileges of the gaol yard, by giving the bond in controversy, have been guilty of an escape by being without the walls of the gaol in the night time, although they have always remained by day and night within the limits of the gaol yard. Now, the solution of this question depends mainly upon another. What laws of the state upon the subject of gaol liberties have been adopted by congress to regulate the rights of debtors imprisoned on mesne or final process from the courts of the United States? The argument of the defendants' counsel substantially turns upon this: that the state laws, for the time being, upon the subject of gaol liberties, and the rights of imprisoned debtors, are adopted by congress. The argument of the district attorney, on the other hand, insists, that the act of congress of 1800, c. 4, is the only act regulating the subject, and that adopts the state laws then in force, and none that were subsequently passed. If the. argument of the district attorney be well founded, then, as the state of Maine continued to be a part of Massachusetts until March, 1820, the act of Massachusetts of 1784, c. 41, is that, by which the court must be governed on the present occasion; and, indeed, upon any other ground, it is admitted, that the present suit is unmaintainable.
Let us now proceed to a brief survey of the legislation of congress, so far as it touch-, es the present subject. The act of 1789, c. *21, provided, that the forms of writs and executions, except their style and “modes of process,” in the courts of the United States, in suits at common law, should be the same, in each state respectively, as were then used or allowed in the supreme courts of the same. The particular words of the act. it having expired, need not be cited. Then came the act of 1792, c. 36, which provided, “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, &c. &e. (the act of 1789, c. 21), 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.” Three days prior to the passing of this last act, congress, by another act (the act of the 5th of May, 1792, c. 29), provided, “that persons, imprisoned on executions issuing from any court of the United States, for satisfaction of judgments in any civil actions, shall be entitled to like privileges of the yards or limits of the respective gaols, as persons, confin[797] ed in such gaols for debt on judgments rendered in the courts of the several states are entitled to, and under the like regulations and restrictions.” This act being temporary, was continued for a short period by the act of May, 1794, c. 34; and that was succeeded by another temporary act. the act of May: 1796. c. 38 [1 Stat. 482]; and- within a few months after this last act expired, the act of the 4th of January, 1800, c. 4 (which has been alluded to), was passed, and is still in force. That act provided, “that persons imprisoned on process issuing from any court of the United States, as well at the suit of the United States, as at the suit ,of any person or persons in civil actions, shall be entitled to like privileges of the yards, or limits, of the respective gaols, as persons confined in like cases on process from the courts of the respective states are entitled to, and under the like regulations and restrictions.”
There is no other act of congress, which, in terms, refers to the subject of gaol liberties; and it has been contended (as has been already stated) that this is the sole act which does, in fact, regulate the subject, so far as respects the national legislation. If this be so, I should have little difficulty in acceding to another part of the argument, and that is, that the act adopted only the state laws then in force, and did not adopt, prospectively, the future legislation of the states. Hitherto, the judicial construction of the acts of congress, which have adopted state laws, touching writs and processes, and the proceedings thereon, has uniformly been, that they applied to the state laws then in .force. To this effect, are the decisions in Wayman v. Southard, 10 Wheat. [23 U. S.] 1, and U. S. Bank v. Halstead, Id. 51; and Beers v. Haughton, 9 Pet. [34 U. S.] 311. I must confess, that 1 entertain very serious doubts, whether congress does possess a constitutional authority to adopt prospectively state legislation on any given subject; for that, it seems to me, would amount to a delegation of its own legislative power. And I think my doubts strengthened by what fell from the supreme court, on this point, in Wayman v. Southard, 10 Wheat. [23 U. S.] 1, and U. S. Bank v. Halstead, Id. 51. At all events, I should not be disposed to give such a construction to any act of congress, unless it was positively required by its words and its intent; which, it seems to me, cannot be affirmed of the act of 1800.
The difficulty, which I have, is of a very different nature; and that is, whether the act of 1800 alone is applicable to the case of the gaol liberties. But passing by that point for a moment, let us see, how the ease would stand upon the Massachusetts act of 1784, c. 41. That act, in the eighth section, provided, “that the courts of the general sessions of the peace shall fix and determine the boundaries of the gaol yards, to the several gaols appertaining, in their respective counties.” And in the same section it farther provided, “that any person imprisoned for debt, either upon mesne process or execution, shall be permitted and allowed to have a chamber and'lodging in any of the houses or apartments belonging to such prisons, and liberty of the yard within the same, in the day time, but not to pass without the limits of the prison.” Now, it is upon the terms of this enactment, that the district attorney rests his case, and contends, upon the authority of decided cases, that it is an escape for a debtor, having the liberty of the yard, to be without the walls of the prison, although he be within the limits of the yard, in the night time. And, in this position, he is fully borne out by the authority of the state courts. The very point has undergone repeated adjudications in the most solemn and formal manner. Bartlett v. Willis, 3 Mass. 86; Baxter v. Taber, 4 Mass. 361; Clap v. Cofran, 7 Mass. 98, 10 Mass. 373; Freeman v. Davis, 7 Mass. 200; Burroughs v. Lowder, 8 Mass. 373; Walter v. Bacon, Id. 468; Patterson v. Philbrook, 9 Mass. 151; Trull v. Wilson, Id. 154.—are directly in point. With these decisions, so far as they profess t<j decide, that the debtor is not entitled to claim the liberty of the yard, except in the day time, as a matter of right, I entirely accord. But so far as they decide, that the sheriff has no authority, at his own discretion and peril, to allow the debtor the liberty of the yard in the night time, as a matter of favor and not of right if the question were new, I should be compelled to differ from the learned court In the case of Steere v. Field [Case No. 13,350], I had occasion, in the state of Rhode Island, fully to express my opinion on this point; and to the opinion then given I deliberately adhere. But I consider the decisions of the state .courts, upon the construction of their own statutes, to be conclusive upon the judgment of the courts of the United States; and, therefore, I adopt and follow these decisions, as containing the true interpretation of the Massachusetts statute of 1784, c. 41. And as the act of 1800, c. 4, allows the liberty of the gaol yard “under the like regulations and restrictions” as govern in the state courts, there has been an escape, constituting a breach of the present bond, if the act of 1800 alone gives the rule to this court.
And this leads me to the consideration of another point, which is, whether the act of congress of 1828, c. 68, does not embrace and regulate the right of imprisoned debtors to the gaol liberties. If it does, then it carries down the national legislation, so as to embrace all the state laws in force on the same subject at the time of passing that act. The first section of that act, provides, “that the forms of mesne process, except the style, and the forms and modes of proceeding, in suits in the courts of the United States, held in those states admitted into the Union since the 29th of Septeml>er, in the year 1789, in those of common law, shall be the same in [798] each of the said states respectively, as are now used in the highest court of original and general jurisdiction of the same,” &c. &c.; subject, however, to such alterations and ad* ditions, as the said courts of the United States 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 rules, to prescribe to any circuit or district court concerning the same. Now, it is to be recollected; that the acts of Massachusetts and Maine, give the privilege of the gaol liberties to debtors imprisoned on mesne process, as well as on execution; and the question might naturally arise, under such circumstances, whether the “forms and modes of proceeding,” in suits at common law, referred to in this section, did not include the right of such debtors in Maine to the privilege of gaol liberties. I confess, that I should have great difficulties in holding a different doctrine. But the third section of the act is more directly applicable. It provides, “that writs of execution, and other final process issued on judgments and decrees, rendered in any of the courts of the United States, and the proceedings thereupon, shall be the same, except their style, in each state respectively, as are now used in the courts of such state, &e. &c.; provided, however, that it shall be in the power of the courts, if they see fit in their discretion, so far to alter final process in said courts as to conform the same to any change, which may be adopted by the legislatures of the respective states for the state courts.” Now. here we find it expressly provided, that “the proceedings,” upon writs of execution and other final process, shall be the same as were at that time used in the state courts. The question, then, arises, whether the allowance of the gaol liberties were not a part of-the “proceedings” upon such writs of execution and other final process within the true intent and meaning of the act.
Upon the best consideration 1 have been able to give the subject, I think it was. It seems to me that all proceedings consequent upon, and incident to such writs of execution and other final process, until the complete satisfaction and discharge thereof, are properly, in the sense of the act, proceedings on the execution or other final process; and that, therefore, the proceedings to obtain the gaol liberties by a debtor imprisoned on such execution, or other final process, are “proceedings thereupon,” within the scope and purview of the act This, it seems to me, is the natural import of the terms used, and a rational exposition of their intention and object. One consideration, which would weigh greatly with me in supporting this construction, is, that, in any other view, no debtor imprisoned on execution in any of the new states, admitted into the Union since the passing of the act of 1S00, c. 4, and then constituting a part of the territories of the United States, would have any right to such gaol liberties, however liberally the privilege may have been granted on mesne or final process by the laws of such new states. I do not know, but I presume, that the general, if not the universal, practice in these, states has been, to allow the privilege of the gaol liberties to all imprisoned debtors under the state process; and that the same practice has prevailed in the courts of the United States in those states. And if the fact be, as I presume it to be, the practice in the courts of the United States had a natural foundation and origin in the provisions of the act of 1792, c. 36, which adopted the “modes of proceeding in suits at common law,” then existing in the state courts under the state laws; and authorized the courts of the United States, in their discretion, to make alterations and additions thereto; thus opening the means of adopting by express rule or by silent usage the regulations, which might, from time to time, be authorized by the progressive legislation of the states on the same subject. It constitutes no objection to this construction of the act of 1792, c. 36, that there was at that time in existence, a temporary act of congress (act of 1792, c. 29), on the very subject of the gaol liberties; or that there were other acts of the like purport, up to the act of 1800, c. 4. These may be accounted for upon two considerations; first, that they were designed to give a positive right to imprisoned debtors to gaol liberties; and, secondly, as a prevention against any doubt, touching so interesting and humane an object
But what entirely satisfies my mind on this point, is, that the supreme court of the United States, in the case of Wayman v. Southard, 10 Wheat. [23 U. S.) 35-37, manifestly adopted this very construction of the words “modes of proceeding” in suits at common law, in the act of 1792, e. 36. Mr. Chief Justice Marshall, addressing himself to the question then before the court, whether “proceedings on execution” were within the purview of the words “modes of proceeding in suits at common law,” in delivering the opinion of the courts said: The act, passed in 1S00, “for the relief of persons imprisoned for debt,” takes up a subject, on which every state in the Union had acted, previous to September, 17S9. It authorizes the marshal to allow the benefit of 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 continued from time to time, until the permanent law of 1800. It is the only act, to which the attention of the court has been drawn, that can countenance the opinion, that the legislature did not consider the process act. as regulating the conduct of an officer in the service of executions. It may be supposed, that, in adopting the state laws as furnishing the rule for proceed[799] ing in suits at common law, that rule was applicable to writs of capias ad satisfacien-dum, as of fieri facias; and that the marshal would be as much bound to allow a prisoner the benefit of the rules under the act of congress, as to sell upon the notice and on the credit prescribed by the state laws. The suggestion is certainly entitled to consideration. But were it true, that the process act would, on a 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. But there is a distinction between the eases sufficient to justify this particular provision. The gaols, in which the prisoners are to be confined, did not belong to the government of the Onion, and the privilege of using them was ceded by the several states, under a compact with the United States. The gaolers were state officers, and received prisoners committed under process of the United States, in obedience to the laws of their respective states. Some doubt might reasonably be entertained, how far the process act might be understood to apply to them. The resolutions of congress,- under which the use of the state gaols was obtained, “recommended it to the legislatures of the several states, to pass laws, making it expressly the duty of the keepers of their gaols, 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 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 tlie 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.”
Now, it is observable from the whole current of reasoning in this opinion, that the principal doubt, whether “proceedings” on executions were within the reach of the words, “modes of proceeding” in thé act of 1792, c. SO, arose from these very acts on the subject of gaol liberties. And yet the court treated them as merely affirmative, and as prudent precautions. But the doubt in Wayman v. Southard is completely done away by the express words of the act of 182S, “the proceedings thereupon.” that is. upon writs of execution, and other final process. And the whole reasoning of the supreme court shows, that such words would include proceedings by debtors to obtain the gaol liberties. The case of Beers v. Haughton, 9 Pet. [34 U. S.] 329, 359-362, recognises and enforces the same interpretation of the act of 1792. In this last case the court said. “This act (the act of 1828, c. 68), was made after the decisions in Wayman v. Southard, 10 Wheat. [23 U. S.] 1, and Bank of U. S. v. Halstead, Id. 51, and was manifestly intended to confirm the construction given in those cases to the acts of 1789 and 1792; and to continue the like powers in the courts to alter and add to the processes, whether mesne or final, and to regulate the modes of proceeding in writs and upon processes, as had been held to exist under those acts. The language employed seems to have been designed to put at rest all future doubts upon the subject. But the matetial consideration, now to be taken notice of, is, that the act of 1828 expressly adopts the mesne processes and modes of proceeding in suits at common law then existing in the highest state courts under the state laws, which included all the regulations of the state laws, as to bail and exemptions of the party from arrest and imprisonment. In regard also to writs of execution and other final process, and the proceedings thereupon, it adopts an equally comprehensive language, and declares that they shall be the same as were then used in the courts of the state. Now the words ‘the proceedings on the writs of execution and other final process’ must from their very import be construed to include all the laws which regulate the rights, duties, and conduct of officers in the service of such process, according to its exigencies, upon the person or property of the execution debtor, and also all exemptions from arrest and imprisonment under such process created by those laws.” Now, although some part of this language is addressed to the consideration of the immediate question then before the court, the discharge of bail, upon the ground that the debtor was by the state laws discharged from imprisonment, which laws had been adopted by a rule of the circuit court; yet the general scope of the reasoning is very full to the purposes of the present case. If the words, “the proceedings” on executions, would include exemptions from arrest and imprisonment, they must, a for-tiori, include the minor right of mitigating imprisonment by an allowance of the gaol liberties.
If I am right in this interpretation of the act of 1828, then it has, by implication, adopted the act of Maine of the 9th of February, 1822, c. 209, on .the subject of gaol liberties. The second section of that act provides, “that the boundaries of the gaol yards, in the several counties in this state, as fixed and determined prior to the 21st day of March, 1821, be and are hereby established, and shall continue until the same or any of them shall be changed by the court of sessions.” The fourth section provides, “that whenever any [800] person, who is or may be imprisoned lor debt on mesne process or execution shall ¿rive bond to the creditor, with one or more sureties approved, &c., conditioned, that from the time of executing such bond, he will not depart without the exterior bounds of ttie gaol yard, until lawfully discharged, and If imprisoned on execution, further conditioned, that he will surrender himself to the gaol keeper, and go into close confinement, as is required by law, without requiring any other condition of the bond." The eighth section provides, “that nothing shall be considered a breach of any bond, which has been or may be given to obtain the liberty of the gaol yard, except the passing over and beyond the exterior limits and bounds thereof, as by law established, or neglecting to surrender himself to the gaol keeper as required by the twenty-first section of this act.” The twenty-first section provides, “that if any, who may be hereafter imprisoned for debt on execution, shall not within nine months after being first admitted to the liberty of the gaol yard, by giving bond as aforesaid, be discharged according to law. such person shall no longer be entitled to the liberty of the gaol yard; but it shall be the duty of the gaol keeper, from and after the expiration of nine months, to hold such person in close confinement, until lawfully discharged therefrom; and if such person shall not, within three days after the expiration of said nine months, surrender himself to the gaol keeper and go into close confinement, it shall be deemed a breach of the condition of his bond for the liberty of the gaol yard.”
[The case was taken on a writ of error to the supreme court, .where the judgment of this court was affirmed. 14 Pet. (39 U. S.) 301.]
These are all the provisions of the statute, which it seems necessary to cite upon the present occasion. In the first place, it is plain from them, that the condition of the present bond does not, either in form or substance, conform to that prescribed by the statute. What may be the legal effect of this departure from the terms prescribed by the statute, I do not pretend to state, except that I may say, that not being a statute bond, the judgment, if any, which may be rendered upon it. must stand upon the common law. and not upon the regulations of the statute. •
In the next place, it is as plain, that the statute makes no difference between the day time and the night time, as to the right of the debtor to the full use of the privileges of the gaol yard. On the contrary, it expressly declares, that nothing shall be considered as a breach of the bond, except passing over and beyond the exterior limits and bounds of the gaol yard, or a nonsurrender according to the provisions of the twenty-first section of the statute. In this respect it differs essentially from the Massachusetts act of 1784, c. 41, already cited.
It will make no difference in the present case, that the Maine act of 1822, c. 209, has been changed, or added to, or repealed by any state legislation subsequent to the act of 1828, c. OS. This latter statute having adopted the antecedent state laws, no subsequent change or repeal of those laws has any effect upon the proceedings upon executions, and other final process issuing from the courts of the United States. The proceedings on executions. and other final proceedings, are to be, and remain, exactly, as if the state acts so adopted continued in full force without alteration or addition. This very point was expressly declared in Beers v. Haughton, 9 Pet. [34 U. S.] 329, 363.
The consequence of this view of the case, upon the statement of facts, is, in my judgment, that there has been no escape, by which the present bond has become so forfeited. As the district judge concurs therein, judgment will be rendered for the defendants accordingly.