Page:Southern Historical Society Papers volume 17.djvu/238

 230 Southern Historical Society Papers.

tion by them of the Montgomery Confederacy. To suppress insur- rections of that kind meant, in plain language, to compel those States to return to the Union and resume their former political relations with it. Not only was there no warrant to be found in any law of Congress for an invasion of a State by the Federal Government to compel that State by force of arms to perform any duty undertaken by it as a political body under the Constitution, but it had been too firmly established by the highest Federal authority to admit of ques- tion that no such power had been delegated to any department of the general government.

The executive department of the government, before the adminis- tration of Mr. Lincoln, recognized this principle, and it had been established by the judgment of the Supreme Court of the United States, the final arbiter under the Constitution of all questions of Federal rights, powers, and duties.

The State of Kentucky sought to invoke the power of the Federal Government to compel the Governor of Ohio to perform a duty enjoined upon him by the Constitution and an act of Congress made in pursuance of it. The Supreme Court first determined that the Constitution and the law plainly made it the duty of the Governor oi Ohio to perform the act in question, and then proceeded to use this language :

" And it would seem that when the Constitution was framed and this law was passed, it was confidently.believed that a sense of justice and of mutual interest would insure a faithful execution of this con- stitutional provision by the executive of every State, for every State had an equal interest in the execution of a compact absolutely essen- tial to their peace and well-being in the internal concerns as well as members of the Union. Hence, the use of the words ordinarily employed when an undoubted obligation is required to be performed, charge his duty, there is no power delegated to the general govern- ment, either through the judicial department or any other department, to use any coercive means to compel him. and upon this ground the motion for the mandamus must be overruled.**
 * It shall be his duty.' But if the Governor of Ohio refuses to dis-

This decision was rendered by the Supreme Court at its December term, i860, after the election of Mr. Lincoln. You will observe that the proclamation sought to avoid the law as established by the Supreme Court, by affecting to treat the secession of the States as an act of insurrection on the part of their people. But it was too plain •to mislead any one that the avowed objects of the proclamation could