Year: 1859

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compels them TO have it whether they
want it or not; and differ on the practical
point, whether a right secured by the Con-
stimtion shall be practiced by an act Of
Congress when ell other remedies fail
The reason assigned for not protecting
by law right secured by the Constitu-
tiorl is, that it is the duty Of the courts to
protect Slavery in the Territories without
any Legislation upon 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 anu comforting jurisdiction upon
the courts to hear and determine thec eases
as they arise, remains to be explained.


The acts of Congress establishing the
several 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 Territorial Legislatures
fhall from time to time enact. II will be
seen that the judicial tribunals of the Ter
ritories 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 Terrific
rial Legislature shall see fit to confer;
and consequently, that the Courts can
afford protection to the persons and pro-
perty no farther than the Legislature
shall, by law, confer the jurisdiction, and
prescribe the remedies, penalties 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, re-
gardlesS Of the wishes of the people and
of the action of the Territorial Eegisla-
ture, can satisfy his conscience and his
oath of fidelity to the Constitution in
Withholding such Congressional legisla-
ton as may be essential to the enjoyment
Of such right under the Constitution
Under this view of the subject it is i'm
possible 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 i'm
perative duty of Congress to supply all
the legislation necessary to It's projections;
and if this proposition is not true, it
necessarily results that the Constitution
neither establishes nor prohibits Slavery
any where, 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 whatso-
ever.


But it is urged with plausibilily by those
who have entire faith in the soundness
of the proposition, that "a Territory is
the mere creature of Congress; that the
creature cannot be clothed with any powers
not possessed by the creator; and the
Congress, not possessing the power to
legisIate in respect to African Slavery in
the Territories, cannot delegate to Ter
ritorial 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 dele
gate to a Territorial Legislature, or any
| other body of men whatsoever, any power
which the Constitution has vested in Con-
gress. In other words EUerg p0lUr con-
terred on Congress By the Constitution,
must be erercised by Congress in the mode
prescribed IN the Constitution.


The mere statement of the question
carries with it the emphatic answer, that
Congress can not delegate any power
which it does possess; but that every
power conferred on Congress by the Con-
stitution must be exercised by Congress in
the manner prescribed 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 inferior to the Supreme
Court, and confer upon them the power to
hear and determine cases, and render
judgments efecting the life, liberty, and
property Of the citizen, without itself
having the power to hear and determine
such causes, render judgments, or revise
VI dllllul lllC SdllC' III llhG llldUuGI OOU-
gress may institute governments for the
Territories, composed of an executive,
judicial, and Legislative department; and
may confer upon the Governor all the ex-
ecutive powers and functions of the Ter
rilory, without having the right to exer-
else any one of those powers or functions
itself.


Congress may confer upon the judicial
department all the judicial powers and
functions of the Territory, without having
the right to hear and determine cause,
or render judgment, or to revise or
annual any decision made by the Courts
so established by Congress. Congress
may also confer upon the legislative de-
partment of the Territory certain legisa-
tive powers which it cannot itself exercise,
and only such as Congress cannot exercise
under the Constitution. The powers which
Congress may thus confer but cannot erer-
cise, are such as relate to the domestic
affairs and internal polity of the Territory,
and do not affect the general welfare of
the Republic.


This dividing line between Federal and
Local authority was familiar to the trainers
of the Constitution. 1t is clearly defined
and distinctly marked on every page Of