The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-08-31

r
constitution is, that it is the duty Of the
courts to protect slavery in the territories
without any legislation on the subject. How
the courts are to afford protection to slaves
or any other property, where there is no law
providing remedies and imposing penalties
and comforting jurisdiction upon the courts
to hear and determine the cases as they arise,
remains to be explained.
The acts of Congress, establishing the sew
eral territories of the United States, provide
that: "The jurisdiction of the several
courts herein provided for, both appellate
and original, and that of the probate courts
and justices of the peace, shall be as limited
by law meaning such laws as the terrific
rial Legislature shall from time to time en-
act. 1t will be seen that the judicial trlbu-
mails of the territories have just such juris-
diction, and only such, in respect to the
rights ofpersons and property pertaining to
the citizens of the territory as the territorial
legislature shall see fit to confer and conse-
auently, that the courts can afford protec-
ton to persons and property no further than
the legislature shall, by law, confer the Ju-
risdiction, and prescribe the remedies, pena-
ties and modes of proceeding.
1t is difficult to conceive how any person
who believes that the constitution confers
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
conscience and his oath of fidelity to the
constitution in Withholding such Congress
slonal legislation as may be essential to the
enjoyment of such right under the constitu-
ton. Under this view of the subject it is
impossible to resist the conclusion that, if
the constitution does establish slavery in the
territories, beyond the power of the people
to control it by law, it is the imperative
duty of Congress to supply all the legislation
necessary to its protection; and if this pro-
position is not true, it necessarily results
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 domes-
tic affairs to suit themselves, without the
intervention of Congress or any other pow
er whatsoever. .,...s...
But it is urged with great plausibility by
those who have entire faith in the soundness
of the proposition, that I" a territory is the
mere creature of Congress that the crea.
ture cannot be clothed with any powers not
possessed by the creator; and that Congress,
not possessing the power to legislate in re-
spect to African slavery in the territories,
cannot delegate to territorial legislature
any power which it does not itself possess. !"
This proposition is as plausible as it is
fallaciOus. But the reverse of it is true as
a general rule. Congress cannot delegate
to territorial legislature, or to any other
body of men whatsoever, any power which
the constitution has vested in Congress. In
other words; Every poaUer conferred on
Congress by the constitution must be exercised
by Congress in the mode prescribed in the
constitution.
Let US test the correctness of this propo-
sition by reference to the powers OF Con-
gress as defined in the constitution
"The Congress shall have power
To lay and collect taxes, duties, imposts,
and excises," etc;
To borrow money on the credit of the Uni
"To regulate commerce with foreign ma.
tions." etc;
''To establish uniform rule of of naturaliza.
tion.' etc;
"To coin money, and regulate the value
thereof
ITO establish post.ofices and post roads -
"To constitute tribunals inferior to the Su-
preme Court"
ITO declare war;" etc.
ITO provide and maintain navy"
This list might be extended so as to en-
brace all the powers conferred on Congress
by the constitution but enough has been
cited to test the principle. Will it be con.
tended that Congress can delegate any one
of these powers to territorial Legislature
or to any tribunal whatever Can Con
gress delegate to Kansas the power to "reg.
ulate commerce." or to Nebraska the power
to establish uniform rules of naturaliza.
ton" or to Illinois the power " to coin mo-
ney and regulate the value thereof or to
Virginia the power to establish post-ofices
and post-rOads?'
The mere statement of the question car
ries with it the emphatic answer, that Con-
gress cannot delegate any power which it
does possess; but that every power conferred
on Congress by the constitution must be
exercised by Congress in the manner pre-
scribed in that instrument.
On the other hand. there are cases in
which Congress may establish tribunals and
local governments, and invest them with
powers which Congress does not possess and
cannot exercise under the constitution. For
instance, Congress may establish courts in
ferior to the Supreme court, and confer
upon them the power to hear and determine
cases, and render judgments affecting the
life, liberty and property Of the citizen,
without itself having the power to hear and
determine such causes, render judgments, or
revise or annul the same. In like manner
Congress may institute governments for the
territories, composed of an executive, judi.
cial and legislative department and may
confer upon the governor all the executive
powers and functions of the territory, with.
out having the right to exercise any one OIL
those powers or functions itself. -...-,5
Congress may confer upon the judicial
department all the judicial powers and func
tions of the territory, without having the
right to hear and determine cause, OF
render judgment, or to revise or annul any
decision made by the courts so established
by Congress. Congress may also confer
upon the legislative department of the ter
ritory certain legislative powers which il
cannot exercise under the constitution. The
powers which Congress may thus confer but
cannot exercise, are such as relate to the
So 80 L.