Article 1, Section 1

Document 8

Wayman v. Southard

The counsel for the defendants contend, that this clause, if extended beyond the mere regulation of practice in the court, would be a delegation of legislative authority which congress can never be supposed to intend, and has not the power to make. But congress has expressly enabled the courts to regulate their practice, by other laws. The 17th section of the judiciary act of 1789, c. 20, enacts, "that all the said courts shall have power,"--"to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States;" and the 7th section of the act, "in addition to the act, entitled, an act to establish the judicial courts of the United States" (Act of 1793, ch. 22, § 7), details more at large the powers conferred by the 17th section of the judiciary act. These sections give the court full power over all matters of practice; and it is not reasonable to suppose, that the process act was intended solely for the same object. The language is different; and the two sections last mentioned have no reference to state laws.

It will not be contended, that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. Without going further for examples, we will take that, the legality of which the counsel for [Volume 2, Page 38] the defendants admit. The 17th section of the judiciary act, and the 7th section of the additional act, empower the courts respectively to regulate their practice. It certainly will not be contended, that this might not be done by congress. The courts, for example, may make rules, directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended, that these things might not be done by the legislature, without the intervention of the courts; yet it is not alleged, that the power may not be conferred on the judicial department.

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details. To determine the character of the power given to the courts by the process act, we must inquire into its extent. It is expressly extended to those forms and modes of proceeding in suits at common law, which were used in the state courts in September 1789, and were adopted by that act.

The Founders' Constitution
Volume 2, Article 1, Section 1, Document 8
http://press-pubs.uchicago.edu/founders/documents/a1_1s8.html
The University of Chicago Press