Mineral Point weekly tribune. (Mineral Point, Wis.) 1859-1868, 1863-04-08

different; and the two sections last men.
!" toned have no reference tn state laws.
It will not be contended that Congress
can delegate to the courts, or to any
etvthsr tslbunMuspUwefsw hich aFe ggEscss-
"ly and exclusively legislative" But
Congress may certainly delegate TO 9TH
ers powers which thes legislature may
rightfully exercise itself. Without going
farther for examples, we will take that, the
legality of which the counsel tor the de-
fendaDts admit. The 18th section Qf the
Judiciary act, and the 7th section OF the
additional act empower the ccarts res
pectively to regulate their practioe. Il
certainly will not. he contended that this
might not be done by Congress. Tas
" courts for example may make rules, di
" recting the returning of writs and pro-
cesses, the fling of declarations and 9TH
yer pleadings, and other things of the
" same description. 1t will not be coz
" tended, that these things might not be
" done by the legislature, without the in
"terveniion of the courts yet it is not
alleged that the power may not be con.
" ferred on the Judicial department. II
The line has not been exactly drawn
(which separates those important sub.
"jects which must be entirely regulated
" by the les islature ITSELF from those OF
" less interest, in which a general provis-
zion may be made and power given to
" those who are to act under such general
provisions to fill up the details. To de
" termine the character of the power given
"to the courts by the process act, we must
Enquire into ;ss extent. 1t 10 expressly
extended to those forms and modes of
proceeding in suits at common law.
(which were used in the state
"courts in September, 1889, and were
adopted by that act" In another place
he adds: s. The difference between the
departments undoubtedly is, that the
Legislature makes, the executive execute,
and the Judiciary construee, the law !;
a~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 court will
" not enter unnecessarily"
The clear result of the argument in
Wayman VS.. Southland was that the courts
had power to adopt rules to regulate pro-
oeedings on executions, although the point
in judgment was whether the execution
laws Of Kentucky, passed subsequent to
the process acts applied to executions is
sued by the circuit court of the United
States. Opinion Of Justice Mclean in
Ross vs.. Duval, ID Peters 45) (See the
Bank of the United States vs.. Halstead,
10 Wheaton 51.) Under this discretion
cry authority thus given the Federal
courts, they have from time to time altered
their processes in such manner as they
deem expedient, enlarging their effect or
81
given only by State law. (Fulleston VS..
Bank of the United States, / Peters 6O4. J
Other examples of this same species OF
essary to maintain the validity of the
Congress has conferred upon the other
departments the power to make rules and
regulations within the great outlines
marked out by the legislature.
Considerable stress was laid upon the
language employed in this provision: " If
4" by reason OF defect. in existing laws, or
4" in the execution of them in the several
Estates, it shall be found necessary to
provide fer enrolling the militia, and
" otherwise putting this act into execution,
"the President is authorized in such cases
{" to make all necessary rules and regula-
"tions."
This, il is clsimsd, evinces a clear de-
sign on the part of Congress to give the
President power, not only adopt such
means ~ might be convenient and proper
for carrying into effect existing laws, but
likewise clothes him with authority to
make new laws upon the subject of en-
rolling and drafting the militia in States
where none exists. But the main object
81 L. IS Tnl~
is 10 provide for bringing into the field the
whole military force of the couatry, when
necessary for its dsfnse and safety, and to
clothe the President with power adequate
for this purpose, Congress declared in this
act itself what should constitute the mill
tia, namely-she able bodied citizens OF
the respective states, between the ages OF
eighteen and forty-hvs, liable TO dc
military duty-and this, with the act OF
May s, 1892, establishing uniform
Of congressional legislation. As already
any discretion a. to the manner of ex
regulated the whole matter by specific
legislation. But this was not done, Con
gre.s having conferred upon the President
| lilo Ndot boW VI Odliibto iOA Ill tuO
ry force OF the country, when the emer
gency specified in the statute existed, gave
as an incident TO this power, authority t.
make the call effective and to detach an(
draft the militia and bring them into the
actual service of the United States. Sucl
is the result of the legislation Of Congress
and upon this point we are not withou
direct judicial authority in support of tn,
views expressed.
In Houston vs. Moore, 5 Wheaton, l
the question was presented to the Su
preme Court of the United States, wheth
er it was competent for . court martisl
deriving its jurisdiction under State au
thority, to try and punish militia mel
drafted, detached and called forth by tn,
President into the service of the Unitet
States, and who had refused or neglected
to obey the call. The Court decided tn,
question in the affirmative. But the dis
cussion necessarily led to An examination
of the laws of Congress upon the subjec
of organizing the militia, and a. to VIVA
provision had been made for bringing
them into the field upon the order o
requisition of the President.
Mr.. Justice Washington, who delivered
the leading opinion in the case, after Civ
ing summary OF the laws of Congress