Volume 1 — INVALIDITY OF ENLISTMENTS

IN THE MASSACHUSETTS REGIMENT OF VOLUNTEERS FOR THE MEXICAN WAR.

Argument before the Supreme Court of Massachusetts, January, 1847.

By the Mexican War Bill (approved May 13, 1846) the President was authorized "to call for and accept the services of any number of volunteers, not exceeding fifty thousand," and provision was made for their organization. The Governor of Massachusetts, by proclamation, called for a Regiment in this Commonwealth, which was organized under the Act of Congress. Before it had left the Commonwealth, applications for discharge were made to the Supreme Court of Massachusetts in behalf of several persons repenting their too hasty enlistment. At the hearing, the proceedings by which the Regiment had been organized were called in question. Their validity was denied on the ground that the Act of Congress, in some of its essential provisions concerning volunteers, was unconstitutional,—that the enlistments were not in conformity with the Act,—and also that the militia laws of Massachusetts had been fraudulently used in forming the regiment. These points, and the further question, whether a minor is bound by his contract of enlistment under the Act, were argued by Mr. Sumner, who appeared as counsel for one of the petitioners. The Court sustained the validity of the proceedings, but discharged the minors.—See In Re Kimball, Murray, and Stone, 9 Law Reporter, 500, where the case is reported.

May it please your Honors,

This cause has a strong claim upon the careful consideration of the Court. It comes with a trinoda necessitas, a triple cord, to bind its judgment. It is important as respects the parties, the public, and the principles involved.

To the parties, it is one of the highest questions known to the law, being a question of human freedom. It is proposed to hold the petitioner in the servitude of the army for an indefinite space of time, namely, "for the duration of the war with Mexico." During all this period, he will be subject to martial law, and to the Articles of War, with the terrible penalties of desertion. He will be under the command of officers, at whose word he must move from place to place beyond the confines of the country, and perform unwelcome duties, involving his own life and the lives of others.

To the public, it is important, as it is surely of especial consequence, in whose hands is placed the power of life and death. The soldier is vested with extraordinary attributes. He is at times more than marshal or sheriff. He is also surrounded by the law with certain immunities, one of which is exemption from imprisonment for debt.

It is important from the principles involved. These are the distinctions between the different kinds of military force under the Constitution of the United States, the constitutionality of the Act of Congress of May, 1846, and the legality of the enlistments under it. The determination of these questions will establish or annul the immense and complex Volunteer System now set in motion.

In a case of such magnitude, I shall be pardoned for dwelling carefully upon the different questions. In the course of my argument I hope to establish the following propositions.

First. That the forces contemplated by the Act of May, 1846, are a part of the "army" of the United States, or its general military force, and not of the "militia."

Secondly. That the part of the Act of Congress of 1846 providing for the officering of the companies is unconstitutional, and the proceedings thereunder are void.

Thirdly. That the present contract is illegal, inasmuch as it is not according to the terms of the Statute, which prescribes that it shall be for "twelve months or the war," whereas it is "for the war" only.

Fourthly. That it is illegal, being entered into by an improper use of the militia laws of Massachusetts, so as to be a fraud on those laws.

Fifthly. That minors cannot be held by contract of enlistment under the present Act.

I shall now consider these different propositions.

First. The force contemplated by the Act of May, 1846, is a part of the army of the United States, or of its general military force, and not of the militia.

It is called "volunteers"; but on inquiry it will appear that it has elements inconsistent with militia, while it wants elements essential to militia.

Without stopping to consider what these elements are, it will be proper, first, to consider the powers of Congress over the land forces. Congress is not omnipotent, like the British Parliament. It can do only what is permitted by the Constitution of the United States, and in the manner permitted. We are, then, to search the Constitution.

Here we find two different species of land forces, and only two. These are "armies" and "militia." There is between the two no hybrid or heteroclite,—no tertium quid.

These forces are referred to and sanctioned by the following clauses, and by no others: "The Congress shall have power to raise and support armies; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress." (Art. I. § 8.) And again: "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." (Art. II. § 2.)

It has been ably argued by Mr. Lanier, in the Virginia Assembly, that the distinction between army and militia is, that the first stands on contract or voluntary enlistment, and the second on the law compelling parties to serve; that this simple test determines the character of the service, Did the party enter voluntarily or by operation of law? If voluntarily, then he is in the "army"; if compulsorily, or by operation of law, then he is in the "militia." This distinction is palpable, and is true, I think, beyond question, with regard to the "army" and "militia" under existing laws. I am not prepared to say that Congress, under the clause authorizing it "to raise and support armies," may not, following the example of other countries, enforce a conscription, or levy, which shall act compulsorily throughout the country, being in this respect like the militia, although unlike it in other respects. Such a plan was recommended by Mr. Monroe, when Secretary of War, October 17, 1814, who speaks of it as follows.

"The limited power which the United States have in organizing the militia may be urged as an argument against their right to raise regular troops in the mode proposed. If any argument could be drawn from that circumstance, I should suppose that it would be in favor of an opposite conclusion. The power of the United States over the militia has been limited, and that for raising regular armies granted without limitation. There was, doubtless, some object in this arrangement. The fair inference seems to be, that it was made on great consideration,—that the limitation in the first instance was intentional, the consequence of the unqualified grant of the second.

"But it is said, that by drawing the men from the militia service into the regular army and putting them under regular officers you violate a principle of the Constitution which provides that the militia shall be commanded by their own officers. If this was the fact, the conclusion would follow. But it is not the fact. The men are not drawn from the militia, but from the population of the country. When they enlist voluntarily, it is not as militia-men that they act, but as citizens. If they are drafted, it must be in the same sense. In both instances they are enrolled in the militia corps; but that, as is presumed, cannot prevent the voluntary act in one instance or the compulsive in the other. The whole population of the United States, within certain ages, belong to these corps. If the United States could not form regular armies from them, they could raise none."[205]

If Mr. Monroe's views are sound, the "army" of the United States, as well as the "militia," may be raised by draft. It may consist of regulars and irregulars.

But whatever may be the powers of Congress on this subject, it is certain that there is no legislation now in force, providing for the "army," except by means of voluntary enlistment. The whole army of the United States is, at present, an army of volunteers; and all persons who are volunteers are of the army, and not of the militia. To call them volunteers does not take them out of the category of the army, or general military force of the United States.

On the other hand, the militia, when in the service of the United States as militia, are not volunteers. They come by draft or conscription. This distinction is derived from England, to whom we are indebted for so much of our jurisprudence, and so many principles of constitutional law. We find from Blackstone (Vol. I. p. 412), that the English militia consists of "the inhabitants of the county, chosen by lot for three years." They are called "the constitutional security which the laws have provided for the public peace and for protecting the realm against foreign or domestic violence"; and "they are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm, nor in any case compellable to march out of the kingdom." They are "officered by the lord-lieutenant, the deputy-lieutenants, and other principal landholders, under a commission from the crown." It will be observed, from this description, that there are four distinct elements in the English militia. 1. It is in its nature a draft or conscription. 2. It is local in its character. 3. It is officered by persons in the county. 4. It can be called out only on peculiar exigencies, expressly designated. In all these respects it is distinguishable from what is called the army of England.

Mr. Burke somewhere says that nearly half of the early editions of Blackstone's Commentaries found their way to America. The framers of our Constitution were familiar with this work, and they have reproduced all these four features of the English militia, substituting "State" for "county," and adopting even the peculiar exigencies when they are compellable to march "out of the State." Thus following Blackstone, they have recognized an "army" and a "militia," without any third or intermediate military body.

This same distinction between the militia and army was recognized by Mr. Charles Turner, in the British Parliament, in a speech on the Bill for embodying the Militia, November 2, 1775. "The proper men," he says, "to recruit and supply your troops are the scum and outcast of cities and manufactories: fellows who voluntarily submit to be slaves by an apprenticeship of seven years are the proper persons to be military ones. But to take the honest, sober, industrious fellow from the plough is doing an essential mischief to the community, and laying a double tax."[206]

Let us now apply these general considerations to the present case.

The Act of May, 1846, recognizes a clear distinction between militia and volunteers. It authorizes the President "to employ the militia, naval, and military forces of the United States, and to call for and accept the services of any number of volunteers, not exceeding fifty thousand, ... to serve twelve months after they shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged." The next section (§ 2) provides that "the militia, when called into the service of the United States by virtue of this Act or any other Act, may, if in the opinion of the President of the United States the public interest requires it, be compelled to serve for a term not exceeding six months after their arrival at the place of rendezvous." The ninth section speaks of "militia or volunteers," referring to the two distinct classes.

Now on the face of this Act there are at least two distinct recognitions that "volunteers" are not of the militia: 1st, in providing for the employment of volunteers and also of militia, treating the two as distinct; and, 2d, in providing that the service for volunteers shall be "twelve months or the war," while that of the militia is "six months" only.

There are other reasons. 1st, The volunteers do not come by draft, but by contract. 2d, Then, again, the President is expressly empowered to apportion the staff, field, and general officers among the respective States and Territories from which the volunteers shall tender their services, while, in the supplementary Act of June 26, major-generals and brigadier-generals are to be appointed by the President by and with the advice and consent of the Senate, all of which, notwithstanding the sop to the States in the apportionment provision, is inconsistent with the character of militia. 3d, Another reason why these cannot be militia is, that no such exigency has occurred as authorizes the President to call for the militia,—as, for instance, "to execute the laws of the Union, suppress insurrections, and repel invasions."

Thus far I have sought to bring the proposed body of volunteers to the touchstone of the Constitution and laws of the United States. Let us now see how they conform to the Constitution and laws of Massachusetts.

1. By the Constitution of Massachusetts, the Governor is commander-in-chief of the militia; but he cannot command these volunteers.

2. By our State laws (Chap. 92, March 24, 1840) volunteers in the militia are "to do duty for five years", while volunteers under the Act in question are for "twelve months or the war."

3. "A uniform such as the commander-in-chief shall prescribe" is appointed for the volunteer militia, while volunteers under the Act are subject to no such regulation.

4. The statute of 1846, chap. 218, § 10, provides that each company shall have "one first, one second, one third, and one fourth lieutenant." Mr. Secretary Marcy's requisition (p. 30 of Mr. Cushing's Report[207]) allows to each company "one first lieutenant and two second lieutenants."

By provisions like these Massachusetts has marked her militia that she may know them. She tells them how they shall be apparelled and officered. But the body now called out is so apparelled and officered that the Commonwealth cannot recognize it as her militia.

It seems clear, that, in the light of the Constitution and laws of the United States, and also of the Constitution and laws of Massachusetts, this body cannot be a part of the militia.

But it is suggested on the other side that the companies now raised may be regarded as companies of militia who volunteer as companies into the army of the United States; and it is urged that the requisitions of the Constitution are complied with, inasmuch as the officers of the regiment are commissioned by the Governor. To this it may be replied, that the militia of the Commonwealth have certain specific duties detailed in the statute on the subject (Chap. 92, 1840). For instance (§ 23), three parades in each year, and inspection on the last Wednesday of May; (§ 24) an inspection and review in each year; (§ 27) and particularly to aid the posse comitatus in case of riot. These all contemplate that they shall remain at home. Now it is not to be questioned, that, in any of the exigencies mentioned by the Constitution, they may be ordered from home, in the manner prescribed by the Constitution and laws; but it certainly cannot be allowable for a company of militia to VOLUNTEER as a company into a service inconsistent with the duties prescribed by the laws under which it is established. Adopting Mr. Monroe's distinction, the individuals can volunteer as citizens, but not as a company.

Let us try this point by an analogy. The Commonwealth by its legislation (Rev. Stat., chap. 18) establishes companies of engine-men, who are to be appointed by the selectmen of towns, to protect from fires. Is it supposed that these companies can volunteer, as companies, to enter the army of the United States, and go far away from the scene of the duties for which they were established? But the companies of militia are hardly less local and home-abiding in character than the companies of engine-men. It is impossible to suppose that they can volunteer as companies into the "army" of the United States.

But suppose, for the sake of argument, that companies of militia, as such, may volunteer into the service of the United States, under the Act of May, 1846,—do they continue to be militia? Clearly not. They are in no wise subject to the laws of Massachusetts. Her Governor, who was so unfortunately prompt to put them in motion, cannot recall them, although he is commander-in-chief of her militia. They have not her uniform. Their officers are not her officers, but officers of the United States. The corps has become part of the army of the United States, or of its general military force.

And this is the legal character of the present Massachusetts Regiment, if it have any legal character.

It is part of the "army" of the United States, and not of the "militia."

Secondly. It being established that it is not of the militia, but of the army, the way is prepared for the consideration of the other questions. The first of these relates to the constitutionality of part of the Act under which the regiment is raised. Looking at Captain Webster's return in the present case, it will be perceived that he claims to hold the petitioner "because the said Samuel A. Stone has been duly enrolled and enlisted as a member of Company A of the First Regiment of Massachusetts Infantry, whereof the said Edward Webster has been duly commissioned Captain by his Excellency the Governor of this Commonwealth." On this return we have a question of double aspect. 1. Has Edward Webster a right to detain the petitioner? 2. Is the petitioner liable to be detained by anybody? It is possible that the petitioner may be liable, although Edward Webster has no right to detain him. In other words, he may be legally enlisted as a soldier in the "army" of the United States, although Webster is not a legal officer.

And, first, is Edward Webster legally commissioned as "an officer of the United States"? This is an important question, which concerns the validity of his acts. He should be anxious to know if he is a legal officer, that he may not bear the sword in vain. The attributes of a military officer are of a high order. He has power over human life and property to an extraordinary degree. He has power at once executive and judicial; he is sheriff and judge. In these peculiar powers he is distinguishable from common citizens. Such powers the Government can impart,—but only in certain ways precisely prescribed by the Constitution and laws,—only constitutionally, legally, and rightfully. And the question recurs, Have these powers been imparted in such wise to Edward Webster?

This is determined by the Constitution of the United States. That instrument provides explicitly the manner of appointing "officers of the United States." It says (Art. 2, § 2), "The President shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the in the heads of departments." In the next clause it declares, that "the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

From these clauses it appears that all "officers of the United States" are nominated, and by and with the advice and consent of the Senate are appointed, by the President; and it is inferred that they are "commissioned" by the President.

Now two questions arise: whether an officer in the "army" of the United States is an "officer of the United States" in the sense of the Constitution, and whether he is an "inferior officer."

He is not an "inferior officer" in the sense of the Constitution; for his appointment has never been vested "in the President alone, in the courts of law, or in the heads of departments."

He is an "officer of the United States." In support of this is universal custom, which has always treated him as such, the express action of President Monroe and Congress in 1821 with regard to the office of Adjutant-General (3 Story, Com. on Const. § 1531, note), and sundry precedents.

I conclude, therefore, that Edward Webster, assuming to be an "officer of the United States," but not having been "nominated by the President, and by and with the advice and consent of the Senate appointed," nor being "commissioned" by the President, is not constitutionally an officer of the "army" of the United States, nor entitled to detain the petitioner. He is commissioned by the Governor of Massachusetts, who cannot give any power in the "army" of the United States.

The question next arises, whether any person is authorized to detain the petitioner. Webster is not. Who is?

The petitioner has been mustered into the service of the United States, not as an individual citizen, but as a member of the company of which Webster assumes to be captain. If the company has no legal existence as a company, all the proceedings are void. But the company becomes such only through its officers. Until its officers are chosen, it is an embryo, not a legal body. But its officers never have been chosen in any constitutional way. The company is, therefore, still unborn. Or rather, to adopt the illustration of the Roman Tribune, the "belly" is produced, but the "head and hands" are wanting; so that it is impossible to present a complete body.

The conclusion is, that the petitioner is not liable to be held in the service of the United States. This stands upon the unconstitutionality of that part of the law of Congress relating to the peculiar organization of this corps.

This same error Congress has committed before. The Act of February 24, 1807 (Statutes at Large, Vol. II. p. 419), provides for volunteers in companies, "whose commissioned officers shall be appointed in the manner prescribed by law in the several States and Territories to which such companies shall respectively belong." In the Act of February 6, 1812 (Statutes at Large, Vol. II. p. 676), these words are repeated. But at a later day it seems the mistake was discovered. By the Act of January 27, 1815, it is provided (§ 4) "that the officers of the said volunteers shall be commissioned by the President of the United States"; and also (§ 8) "that the appointment of the officers of the said volunteers, if received into the service of the United States for the term of twelve months, or for a longer term, shall be submitted to the Senate, for their advice and consent, at their next session after commissions for the same shall have been issued." This bill was much considered in Congress.[208] Notwithstanding all this, the same error is repeated in the Act of May, 1846.

I submit, that it will be the duty of the Court to declare the Act of May, so far as it relates to the organization of the volunteers, unconstitutional, and all the proceedings under it a nullity.

Thirdly. But if the law should be regarded as constitutional, it is further submitted that the proceedings under it in Massachusetts have been illegal in two respects: first, by the action of the National Government; and, secondly, by the action of the Commonwealth.

At present we will consider the illegality on the part of the National Government.

The Act of May provides for volunteers "to serve twelve months after they shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged." But by the requisition of Mr. Secretary Marcy they are to serve "during the war with Mexico, unless sooner discharged," which is a different term from that in the law.

The right to enlist soldiers is determined by the laws. Its exact extent is measured there. It is not dependent upon the judgment or conscience of any Secretary,—as if his foot were the standard of physical measure. The law expressly says, that the enlistment is to be for "twelve months or the war." Now it cannot have been the intention of Congress to obtain enlistments for the indefinite period of the war,—for ten years, like the Trojan War, or thirty years, like that of Wallenstein, in Germany. They wished to hold volunteers for twelve months, or even for a shorter time, if the war should be ended sooner; and at the time of this untoward Act it was supposed that it would be ended sooner. The militia, in this Act, are called out for "six months" only.

By the Act of February 24, 1807 (Statutes at Large, Vol. II. p. 419), the volunteers are "for the term of twelve months after they shall have arrived at the place of rendezvous, unless sooner discharged"; and for the same term by the Act of February 6, 1812 (Vol. II. p. 676). But by the Act of February 24, 1814 (Vol. III. p. 98), the term was "five years, or during the war." By the Act of January 27, 1815 (Vol. III. p. 193), the term was "not less than twelve months." By the Act of January 27, 1814 (Vol. III. p. 94), the term of soldiers in the regular army was "five years, or during the war." I mention these precedents, to show that this question may have arisen before, although we have no reports of it from any judicial tribunal. But we have the express opinion of the late Mr. Justice Johnson, of the Supreme Court of the United States, in a note to his elaborate Life of General Greene, written not long after the Acts of Congress to which I have referred. It was printed in 1822. He says: "The point on which the Pennsylvania line really grounded their revolt was the same which has been more recently much agitated between the American Government and its army. The soldiers were enlisted for a certain number of years, or the war. At the expiration of the term of years they demanded their discharge; and after resisting this just claim, and sustaining all the terrors and real dangers of a revolt, ... the Government was obliged to acquiesce. For so many years or the war certainly meant for that time, if the war should so long last. Else why specify a term of years?—as enlistments for the war would have expressed the sense of the contracting parties." (Vol. II. p. 53, note.)

On the authority of Mr. Justice Johnson, the question seems to be clear. But if there be any doubt, the inclination must be against the Government. They are the powerful and intelligent party; the soldier is powerless and ignorant. The Government are the inviting, offering, promising party. To them applies the rule, Verba fortius accipiuntur contra proferentem.[209]

But it is said on the other side, that the "twelve months" have not yet expired; and it does not follow that the volunteers will be detained beyond that period. But the case now is to be judged on the contract. Is the contract legal or illegal, under the Act of Congress? It is submitted that it is illegal.

Fourthly. I submit that the proceedings in Massachusetts under the Act of March are illegal, inasmuch as they are a fraud upon the militia laws of the Commonwealth. This brings me to a part of the case humiliating to Massachusetts.

We have already seen the purpose of these laws, contemplating the performance of duties at home,—as, in preserving the peace, and aiding the posse comitatus. These purposes are distinctly declared by the Legislature. (Chap. 92, 1840.) But by the agency of State officers these laws have been employed—I would say, prostituted—to a purpose widely different: not to help preserve the peace at home, but to destroy peace abroad. It appears from the communication of the Adjutant-General, that he resorted to the device or invention of using the militia laws of the State in order to enlist soldiers to make war on Mexico. The following is the form of an application to be organized as a company of the Massachusetts militia,—the applicant expressly setting forth objects inconsistent with the duties of the militia.

"Charlestown, January 4, 1847.

"To His Excellency, George N. Briggs, Governor and Commander-in-Chief of the Commonwealth of Massachusetts.

"Sir,—The undersigned, in behalf of himself and his associates, whose names are duly enrolled therefor, respectfully requests that they may be duly organized as a company, to be annexed to the First Regiment of Massachusetts Infantry: it being understood, that, when so organized, they desire and assent to be placed at the disposal of the President of the United States, to serve during the existing war with Mexico. And as in duty bound will ever pray.

(Signed,) "John S. Barker."

Thus the Executive of the Commonwealth placed all the apparatus and energy of the Adjutant-General, and of the militia laws, at the service of certain petitioners, well knowing that these persons were not to enlist bona fide in the honest militia of Massachusetts, but with the distinct understanding that they should be placed at the disposal of the President of the United States, to serve during the existing war with Mexico. I do not complain that the Governor or the Adjutant-General lent himself officially or personally to this purpose, though I have my regrets on this score; but I do complain that the laws of Massachusetts are prostituted to this purpose.

It has been decided by the Supreme Court of the United States, in Prigg v. Pennsylvania, (16 Peters, 539), that State officers are not obliged to enforce United States laws. The Nation must execute its laws by its own officers. Under the lead of this decision, the Legislature of Massachusetts passed a law making it penal for State officers to arrest or detain in public buildings any person for the reason that he is claimed as a fugitive slave (Act of 1843, Chap. 69), although the Act of Congress of 1793 contemplates the action of State officers. By this legislation Massachusetts has clearly shown her determination to take advantage of the principle in Prigg's case. The Governor and the Adjutant-General, not heeding the spirit of our Commonwealth, made themselves recruiting officers of the United States, as much as if they had enlisted sailors for the ship-of-war Ohio, now lying in our harbor.

How much soever this may be deplored, it forms no ground for any legal questioning of their acts. What they did, under the directions of an Act of Congress, as agents of the United States, would be legal, provided it was not forbidden by the laws of the State. But although they might volunteer as agents of the United States in raising troops for the Mexican War, acting under the law of Congress, they cannot employ the State laws for this purpose. They cannot be justified in diverting the laws of the State to purposes not originally contemplated by these laws, and inconsistent with their whole design and character. Such was the employment of the militia laws of Massachusetts. These laws have been made by the Executive the instruments, the "decoy-ducks," to get together the Falstaff regiment whose existence is now drawn in question. The whole proceeding is a fraud on those laws.

It is the duty of this Court, as conservators of the laws of the Commonwealth, bound to see that they receive no detriment, to guard them from such a perversion from their true and original purpose. This can be done only by annulling the proceedings that have taken place under them.

Such are the objections to the legal character of the Massachusetts Regiment. If either of these should prevail, then the whole regiment is virtually dissolved. It becomes a mere name. Stat nominis umbra. Or it is left a mere voluntary association, without that quickening principle which is necessary to a military organization under the Constitution and laws of the United States. It is like the monster Frankenstein, the creation of audacious human hands, endowed with a human form, but wanting a soul.

Fifthly. But suppose the Court should hesitate to pronounce the nullity of these proceedings, and should recognize the legal existence of the regiment, it then becomes important to determine whether there are any special circumstances in the case of the petitioner which will justify his discharge. The party that I represent is a minor, and as such entitled to his discharge. The question on this point I have reserved to the last, because I wished to consider it after the inquiry whether the regiment was a part of the "army" or the "militia," in order to disembarrass it of considerations that might arise from the circumstance that the militia laws embrace minors. I assume now that the regiment, if it have any legal existence, is a part of the "army."

The jurisprudence of all countries wisely provides a certain period of majority, at which persons are supposed to be able to make contracts. This by the Common Law is the age of twenty-one.

Now enlistment in the army of the United States is a contract. The parties are volunteers, and the term implies contract. And the question arises, whether this contract is governed by the Common Law, so as to be voidable when made by a minor. Is the circumstance that the contract is made with the Government any ground of exception? If an infant were to contract with the Government to sell a piece of land, he would not be bound by it any more than if the contract were with a private person. Is the circumstance that the contract is military any ground of exception? If an infant were to contract to furnish military supplies to Government, he could not be held more than by any private individual.

The rule of the Common Law as to the incapacity of infants is specific. An exception to it must be established by express legislation,—as, in the case of capacity to make a will, to marry, or to serve in the militia. Congress has recognized this principle by expressly declaring, on several occasions, that persons between the ages of eighteen and twenty-one may be enlisted. The argument from this is clear, that without express provision such enlistments would not be binding. The Acts of January 11, 1812 (Statutes at Large, Vol. II. p. 671), and December 10, 1814 (Ibid., Vol. III. p. 146), contain such provisions. And we are able from contemporary history to ascertain what was the understanding concerning them. I refer particularly to Niles's Register, Vol. III. p. 207, and the discussion there on the first of these Acts; also to Vol. VII. p. 308, where will be found an important document making this legislation of Congress a special subject of complaint.

It is argued, however, that the United States have no Common Law, and cannot, therefore, be governed by the rules of majority therein established. Although it may be decided that the United States have no Common Law as a source of jurisdiction, yet it cannot be questioned that they have a Common Law so far as may be necessary in determining the signification of words and the capacity of persons. Idiots and femes-coverts would not be held as volunteers in the army of the United States; but their capacity is determined by the Common Law, and not by any special legislation.

I conclude, therefore, that the contract of enlistment in this regiment may be avoided by a minor.

It may be in the power of the Court to discharge the petitioner without passing upon all the grave questions which I have now presented. But I confidently submit, that, if these proceedings are unconstitutional and illegal, as I have urged, if the regiment is a nullity, as I believe, the truth should be declared. The regiment is soon to embark for foreign war, when its members will be beyond the kindly protection of this Court. It will be for the Court to determine whether it may not, by a just judgment, vindicate the injured laws of Massachusetts, and discharge many fellow-citizens from obligations imposed in violation of the Constitution and laws of the land.