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

legislative, the executive and the Judicial
that it is tie peculiar function of the leg
islative department 20 make the law; of
the executive TO execute, and the judicial
ezooustrNeseseesseh ess poweEDuaes nott 60
be COMPOUNDED or delegated by the one de-
partment to the other; and that Congress
in authorizing the President-to make all
necessary rules ana regulations for enroll
ing the militia, and curing defects in
existing state militia laws, attempted to
conier upon him high legislative powers
The general soundness of this argument
wiilsnot be questioned. Most of the pro-
positions stated are recognized political
axioms under our form of government. 1t
Is only the conclusion nr deduction from
these propositions about which any doubt
can exist. No one will seriously contend
that Congress can delegate legislative
power to the President. But distinction
must be made between "those Important
s. subjects which must be entirely reguia-
" ted by the legislature itself, from those
. OF less interest, in which a general pro-
vision may be made, and power given to
those who are to act under such general
provisions to fill up the details"
1t would seem that the power
given the President to make all
rules and regulations to carry into eff
feet the law for calling out the militia is
of the latter character. Congress might
have regulated by its legislation the whole
details of the draft If 1t had thought pro-
per to do so. But having in the most am
pie manner clothed the President with
power to call forth militia, it further pro.
vided that be should make all proper rules
and regulations for the enforcement of tie
draft where State laws upon the subject
were defective. Where state laws existed
it was undoubtedly intended or supposed
that the President would avail himself of
their machinery in bringing into the field the
quota of the States. When the militia
were once called forth it was q matter of
no vital Importance how they should be
detached or drafted. Congress indicated
an intention of adopting the State laws
upon the subject as far as they were appli-
cable. When they were not applicable,
or none existed. the President was author
lied to make proper rules and regulations
tor enrolling the militia and drafting
them. And this no more partakss of leg
islative power than that discretionary au-
thoiity Entrusted to every department of
the government in variety OF cases. This
practice OF giving discretionary power to
other departments or agencies who were
intrusted with the duty of carrying into
effect some general provisions of law, had
its origin at the adoption of the cOnstitu.
tion aud in the action of the first Congress
under it, IS the federal legislation abun-
dainty shows. 1t was undoubtedly in
strict conformity to the views entertained
by the great statesmen of that day of the
genius and intent of the instrument which
they had had such great share in Tram.
ing. They could not have regarded it as
a delegation of the legislative power of
Congress. This practical construction of
the constitution SO frequently and con-
manifested in the federal legisla-
ton is worthy of serious consideration.
The Attorney General in another case ar
gued at this term furnished numerous in
stances where such discretionary power is
given to other functionaries by Congress.
1t would render this opinion needlessly
prolix to refer to ali these laws. A few
of the more striking and signal examples
of thi. species of legislation may be profit
ably noticed. In 1898 whom a war with
France was deemed imminent, Congress
authorized the raiAns of provisional
army and provided that the companies of
volunteers and the members of each COM
pany who should bs duly engaged and &C.
cepted by the President OF the United
States and organized with proper officers
commissioned by him should submit to
and observe such rules of training and
discipline as should be thought necessary
TO prepare them for actual service: 'aohich
rules the President of the United States is
hereby authorized to make and establish"
(Chapter %, O. 3. 5. NJ Large, $500 This
legislation was had although the COnstitu
ton corters in clear and specific terms
upon Congress the power !" to make rules
for the governments and regulation of the
land and naval forces" and 'ffor arming
and disciplining the militia" Exclusive
and unlimited power or legislation IL given
TO Congress by the Constitution over the
District of Columbia. Still Congress has
organized and established within the dis
trict, municipal corporations, comforting
upon them all the powers oe police and To-
cal legislation which Are common and in
| cident 20 such corporations. The Consti-
| tuition gives Congress the power to .'dis-
pose of aud make all nesdful rule. and
regulations respecting the territory OF
other property belonging to the United
States" Under this grant Congress ha:
organized various territorial governments
clothing them with great powers of loca
government.
In execution of the power conferred
upon it, Congress has established courts
of the United States, and passed ssvera
acts regulating processes in such courts
The State laws regulating the modes o
proceedings in suits at common law, as i
stood in 1889, were adopted, Subject
however, to such alterations and addition
as the said courts respectively shall il
their discretion deem expedient, or t,
such regulations as the Supreme Court O
the United States shall think proper from
time to time, by rule to prescribe to an,
circuit or district court, concerning til,
ame."-Q .. S. S. at Large, page 275
Chapter Be, 5. 2.) In the case of Way.
man VS.. Southland 10, Wheaton l, thu, Su
preme Court gave construction to thi
provision, and held that i: enabled tn,
several courts of the Union to make suci
improvements in its forms and modes O
proceeding as experience might suggest
and especially to adopt such State lans a
might cary to advantage the forms ant
modes Of proceedings uhich prevailed IL
September, 1879, page a.. The objection
was taken in that case, which is urget
here, that this was delegation of lsgisla
tive power to the courts of the Union.