The
Congress of the Constitution is expressly prohibited from the assumption
of any power not distinctly and specifically delegated to it as the
legislative branch of an organized government. What was questionable in
the former case, therefore, becomes clearly inadmissible in the latter.
But there is yet another material distinction to be observed. The
States, owners of what was called the Northwestern Territory, were
component members of the Congress which adopted the Ordinance for its
government, and gave thereto their full and free consent. The Ordinance
may, therefore, be regarded as virtually a treaty between the States
which ceded and those which received that extensive domain. In the other
case, Missouri and the whole region affected by the Missouri Compromise,
were parts of the territory acquired from France under the name of
Louisiana; and, as it requires two parties to make or amend a treaty,
France and the Government of the United States should have cooeperated in
any amendment of the treaty by which Louisiana had been acquired, and
which guaranteed to the inhabitants of the ceded territory "all the
rights, advantages, and immunities of citizens of the United States,"
and "the free enjoyment of their liberty, property, and the religion
they profess."--("State Papers," vol. ii, "Foreign Relations," p. 507.)
For all the reasons thus stated, it seems to me conclusive that the
action of the Congress of the Confederation in 1787 could not constitute
a precedent to justify the action of the Congress of the United States
in 1820, and that the prohibitory clause of the Missouri Compromise was
without constitutional authority, in violation of the rights of a part
of the joint owners of the territory, and in disregard of the
obligations of the treaty with France.
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