Part 28

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]

[205] Niles's Register, Vol. VII. p. 139: November 5, 1814.

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]

[206] Hansard, Parl. Hist., Vol. XVIII. col. 846.

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."

[207] Mass. House Doc. 1847, No. 7.

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_.

"If shape it may be called, that shape has none Distinguishable in member, joint, or limb, Or substance may be called that shadow seems."

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.