Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-04-09

" toned have Do reference 10 state laws.
1t will not be contended that OoDgr ess
"can delegate TO the courts, or to any
'other tribunals, powers which are strict.
ely and exclusively legislative" But
Congress may certainly delegate to 9th
"ers powers which the legislature may
"righttully exercise itself. Without goine
farther for examples, we will take that, he
"legality of which the counsel Tor the de-
PENDANTS admit. The 18th section of the
judiciary act, and the 7th section OF thu
additional act, empower the courts res
"pectiVely to regulate their practice
certainly will not be commended that THU
might not be done by Congress. The
courts for example may make rules, di
rectlng the returning of writs and pro
cesses, the filing of declarations and 9th
ser pleadings, and other things of tn.
"same description. 1t will not be con
"tended, that these things might not b,
"done by the legislature, without the in
"tervention of the courts yet it is no
"alleged that the power may not be con
"terred on the judicial department.
"The line has not been exactly drawn
(which separates those Important sub
"jects which must be entirely regulated
"by the legislature itself, from those o.
"less interest, in which a general provjs
zion may be made and power given tc
"those who are to act under such genera
provisions to fill up the details. To de
"termine the character of the power giveI
ITO the courts By the process act, We must
inquire into its extent. 1t is expressly
"extended to those forms and modes OF
"proceeding in suits at common law
"courts in September, 1889, and Were
adopted by that act" In another place
he adds: THE difference between the
"departments undoubtedly is, that the
Legislature makes, the executive execute
sand the judiciary construes, the law
but the maker OF the law may commit
something to the discretion of the other
departments, and the precise boundary
"of this power is 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-
ceed!ngs on executions, although the point
AZ j Od6LAOAO VdS "llCUuCI Gu0 6ACCUlIOu
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, Is Peters 45) (See the
Bank OF the United States vs.. Halstead,
10 Wheaton 5l) 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
operation SO as to sustain forms of actions
given only by State law. (Fulleston VS..
Bank OF the United States, Peters 604.
Other examples OF this same species OF
legislation might be given if it were nee
essary to maintain the validity of the
clause in the act of 1S62-examples where
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: elf
i" by reason of defects in existing laws, or
in the execution Of them in the several
" States, it shall be found necessary to
"provide for enrolling the militia, and
&c otherwise putting this act into execution,
" the President is authorized in such cases
to make all necessary rules and regula-
" tions."
This, it is claimed, evinces a clear de-
sign on the part of Congress to give the
President power, not only adopt such
means as might be convenient and proper
for carrying into effect existing laws, but
likewise clothes him with authorit y to
make new laws upon the subject OF en-
rolling and drafting the militia in States
where none exists. But the main object
of the law of 1895, and of July II, 1862,
is to provide for bringing into the field the
whole military force of the country, when
necessary for its defnse 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-the able bodied citizens OF
the respective States, between the ages of
eighteen and forty-fve, liable 10 do
military duty-and this, with the act of
May s, 1892, establishing a uniform
militia, covered the whole ground
Of congressional legislation. As already
observed, instead OF giving the Presid
any discretion as to the manner of ex-
ecuting the draft, Congress might have
regulated the whole matter by specific
legislation. But this was not done, Con-
gress having conferred upon the President
the vast power of calling forth the militia
ry force Of the country, when the emer-
gency specified in the statute existed, gave
as an incident to this power, authority to
make the call effective and to detach and
draft the militia and bring them into the
actual service of the United States. Such
is the result of the legislation of Congress,
and upon this point We are not without
direct judicial authority in support of the
views expressed.
In Houston vs. Moore, 5 Wheaton, /.
the question was presented to the Su-
preme Court of the United States, wheth-
er it was competent for a court martial
deriving its jurisdiction under State au-
thority, to try and punish militia men
drafted, detached aud called forth by the
President into the service OF the United
States, and who had refused or neglected
to obey the call. The Court decided the
question in the affirmative. But the dis
cussion necessarily led to an examination
of the laws of Congress upon the subject
of organizing the militia. and as to what
provision had been made for bringing
them into the field upon the order or
requisition of the President.
Mr.. Justice Washington, who delivered
the leading opinion ia the case, after Civ
ing summary OF the laws of Congress,
employs this language:
"The laws which l have referred to,
" amount to full execution of the pow
" ers conferred upon Con gress by the
-" Constitution. They provide for calling
forth the militia to execute the laws of