Jefferson Davis, The Rise and Fall of the Confederate Government

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[7] having one vote, so that all the states were of equal weight in the decision of any question. It had legislative, executive, and in some degree judicial powers, thus combining all departments of government in itself. During its recess a committee known as the Committee of the States exercised the powers of the Congress, which was in spirit, if not in fact, an assemblage of the states.

On the other hand, the Congress of the Constitution is only the legislative department of the general government, with powers strictly defined and expressly limited to those delegated by the states. It is further held in check by an executive and a judiciary, and consists of two branches, each having peculiar and specified functions.

If, then, it be admitted—which is at least very questionable—that the Congress of the Confederation had rightfully the power to exclude slave property from the territory northwest of the Ohio River, that power must have been derived from its character as an assemblage of the sovereign states; not from the Articles of Confederation, in which no indication of the grant of authority to exercise such a function can be found. 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; as it requires two parties to make or amend a treaty, France and the government of the United States should have cooperated 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 religion they profess.”¹

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