The Cadiz Democratic sentinel. [volume] (Cadiz, Ohio) 1854-1864, 1859-10-12


How the Courts are to afford protection to slave
or any other property, where there is no LAY
providing remedies and imposing penalties an
conferring jurisdiction upon the Courts to hea
and determine the cases as they arise, remain
t to be explained.
( The acts of Congress, establishing the seve
raj Territories of the United States, provid
that "The jurisdiction of the several Court
herein provided for, both appellate and original
and that of the Probate Courts and Justices o
the Peace, shall be as limited by law"-mean
ing such laws as the Territorial Legislature!
shall from time to time enact. 1t will be seer
that the judicial tribunals of the Territories
have just such jurisdiction, and only such, in
respect to the rights of persons and property
pertaining to the citizens Of the Territory as
the Territorial Legislature shall see fit to con-
fer; and consequently, that the Courts can af-
ford protection to persons and property no fur
ther than the Legislature SHALL by law, con fer
the jurisdiction, and prescribe the remedies,
penalties, and modes Of proceeding.
1t is difficult to conceive how any person
who believes that the Constitution conlers the
right of protection in the enjoyment Of slave
property in the Territories, regardless of the
wishes Of the people and of the action of the
Territorial Legislature, can satisfy his con-
science and his oath of fidelity to the Constitu-
ton IN Withholding such Congressional legisla-
| ho al ia tha n
such right under the Constitution. Under this
view of the subject it is impossible to resist
the conclusion that, if the Constitution does es-
tablish slavery in the Territories, beyond the
power of the people to control it by law, it is
the imperitive duty of Congress to supply all
the legislation necessary to its protection; and
if this proposition is not true, it necessarily re-
suits that the Constitution neither establishes
nor prohibits slavery anywhere, but leaves the
people of each State and Territory entirely free
to form and regulate their domestic affairs to
suit themselves, without the Intervention Of
Congress or Of any other power whatsoever.
But it is urged with great plausibity by
those who have entire faith in the soundness of
the proposition, that "a Territory is, the mere
creation Of Congress; that the creature can not
be clothed with any powers not possessed by
the creator; and that Congress, not possessing
the power to legslate in respect to African sla-
very in the Territories, can not delegate to
Territorial Legislature any power which itdoes
not itself possess"
This proposition is as plausible as it is falla-
cious. But the reverse of it is true as a gener-
al rule Congress can not delegate to Terri
tsral Legislature, or to any other body of men
whatsoever, any power which the Constitution
has vested in Congress. In other words: EOery
posOer conferred on Congress By the Constitution
must be exercised by Congress, in the mode prsscri-
bed by the Constitution.
Let us test the correctness ofthis proposition
by reference to the powers of Congress as def
ned in the Constitution:
"The Congress shall have power
"'ro lay and collect taxes, duties, imsoSts, and
excises," etc.
'"'o borrow money on the credit of the Uni
ted States;''
"To regulate commerce with foreign nations"
etc;
"To establish uniform rule of naturaiza-
ton" etc,
"'ro coin money and regulate the value there
Of"
"To establish post Offices and post roads,"
"To constitute tribunals inferior to the Su-
preme Court"
"To declare war;" etc.
"ro provide and MAINTAIN navy"
This list might be extended so as to embrace
all the powers conferred on Congress by the
Constitution; but enough has been cited to test
the principle. Will it be contended that Con-
gress can delegate any one Of these powers to
Territorial Legislature or any tribunal what.
ever? Can Congress delegate to Kansas the
power to regulate commerce. or to Nebras
ka the power "to establish uniform rules of nat
uralization," or to Illinois the power "to coin
money and regulate the value thereof" or to
Virgins the power Ito establish post-offices and
post-roads?"
The mere statement of the question carries
with it the emphatic answer, that Congress can
not delegate any power which it doesn't possess;
buL that every power conferred on Congress by
tho Constitution must be exercised by Congress
in the manner preacribed in that instrument,
On the other hand, there are cases in which
Congress may establish tribunals and local gov
ernments, and invest them with powers which
Congress does not possess and can not exercise
under the Constitution. For instance, Congress
may establish courts inferior to the Supreme
Court, and confer upon them the power to hear
and determine cases, and render Judgment al
Cecting the life liberty and property of the cit-
zen, without itself having the power to hear and
determine such cases, render judgments, or re-
ylse and annul the same In like manner Con-
gress may institute governments for the Terri.
tories, composed Of an executive, judicial, and
legislative department; and may confer upon
the Governor all the executive powers and flnc-
ions of the Territory, without having the right
to exercise any one ofthese powers or functions
ITSELF
Congress may confer upon the judicial de-
partment all the judicial powers and functions
of the Territory, without having the right to
hear and determine cause, or render judg-
ment or to revise or annul any decision made
by the courts so established by Congress. Con-
gress may also confer upon the legislative de-
partment of the Territory certain legislative
powers which it can not itself exercise, and on
ly such as Congress can not exercise under the
Constitution. The powers which Congress may
thus confer but can not exercise, are such as
relate to the domestic affairs and internal poll
d, of A. rarr;tory and dn nnt affant A. 49,, |