Part 29

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.

[208] See Niles's Register, Vol. VII. pp. 313, 333, 352.

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]

[209] Bacon, Maxims of the Law, Reg. III.

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.

WITHDRAWAL OF AMERICAN TROOPS FROM MEXICO.

SPEECH AT A PUBLIC MEETING IN FANEUIL HALL, BOSTON, FEBRUARY 4, 1847.

Hon. Samuel Greele presided at this meeting. The other speakers, besides Mr. Sumner, were Rev. James Freeman Clarke, Hon. John M. Williams, Rev. Theodore Parker, Elizur Wright, and Dr. Walter Channing. There was interruption at times from lawless persons trying to drown the voice of the speaker. One of the papers remarks, that "a number of the volunteers were among the most active."

MR. CHAIRMAN AND FELLOW-CITIZENS,--

In the winter of 1775, five years after what was called the "massacre" in King Street, now State Street, a few months only before the Battles of Lexington and Bunker Hill, Boston was occupied by a British army under General Gage,--as Mexican Monterey, a town not far from the size of Boston in those days, is now occupied by American troops under General Taylor. The people of Boston felt keenly all the grievance of this garrison, holding the control of Massachusetts Bay with iron hand. With earnest voice they called for its withdrawal, as the beginning of reconciliation and peace. Their remonstrances found unexpected echo in the House of Lords, when Lord Chatham, on the 20th of January, brought forward his memorable motion for the withdrawal of the troops from Boston. Josiah Quincy, Jr., dear to Bostonians for his own services, and for the services of his descendants in two generations, was present on this occasion, and has preserved an interesting and authentic sketch of Lord Chatham's speech. From his report I take the following important words.

"There ought to be no delay in entering upon this matter. We ought to proceed to it immediately. We ought to seize the first moment to open the door of reconciliation. The Americans will never be in a temper or state to be reconciled,--they ought not to be,--till the troops are withdrawn. The troops are a perpetual irritation to these people; they are a bar to all confidence and all cordial reconcilement. I, therefore, my Lords, move, 'That an humble address be presented to His Majesty, most humbly to advise and beseech His Majesty, that, in order to open the way towards an happy settlement of the dangerous troubles in America, by beginning to allay ferments and soften animosities there, and above all for preventing in the mean time any sudden and fatal catastrophe at Boston, now suffering under the daily irritation of an army before their eyes, posted in their town, it may graciously please His Majesty _that immediate orders may be despatched to General Gage for removing His Majesty's forces from the town of Boston_, as soon as the rigor of the season, and other circumstances indispensable to the safety and accommodation of the said troops, may render the same practicable.'"[210]

[210] Life of Josiah Quincy, Jr., p. 320.

It is to promote a similar measure of justice and reconciliation that we are now assembled. Adopting the language of Chatham, we ask the cessation of this unjust war, and the withdrawal of the American forces from Mexico, "as soon as the rigor of the season, and other circumstances indispensable to the safety and accommodation of the said troops, may render the same practicable."

It is hoped that this movement will extend throughout the country, but it is proper that it should begin here. Boston herself in former times suffered. The war-horse was stalled in one of her most venerable churches. Her streets echoed to the tread of hostile troops. Her inhabitants were waked by the morning drum-beat of oppressors. On their own narrow peninsula they have seen the smoke of an enemy's camp. Though these things are beyond the memory of any in this multitude, yet faithful History has entered them on her record, so that they can never be forgotten. It is proper, then, that Boston, mindful of the past and of her own trials, mindful of her own pleadings for the withdrawal of the British troops, as the beginning of reconciliation, should now come forward and ask for _others_ what she once so earnestly asked for _herself_. It is proper that Boston should confess her obligations to the generous eloquence of Chatham, by vindicating his arguments of policy, humanity, and justice, in their application to the citizens of a sister Republic. Franklin, in dispensing a charity, said to the receiver, "When you are able, return this,--not to me, but to some one in need, like yourself now." In the same spirit, Boston should now repay her debt by insisting on the withdrawal of the American troops from Mexico.

Other considerations call upon her to take the lead. Boston has always led the generous actions of our history. Boston led the cause of the Revolution. Here commenced that discussion, pregnant with independence, which, at first occupying a few warm, but true spirits only, finally absorbed all the best energies of the continent, the eloquence of Adams, the patriotism of Jefferson, the wisdom of Washington. Boston is the home of noble charities, the nurse of true learning, the city of churches. By all these tokens she stands conspicuous; and other parts of the country are not unwilling to follow her example. Athens was called "the eye of Greece." Boston may be called "the eye of America"; and the influence which she exerts proceeds not from size,--for there are other cities larger far,--but from moral and intellectual character. It is only just, then, that a town foremost in the struggles of the Revolution, foremost in all the humane and enlightened labors of our country, should take the lead now.

The war in which the United States are engaged has been from this platform pronounced unconstitutional. Such was the judgment of him who has earned the title of _Defender of the Constitution_. Would that, instead of innocuous threat to impeach its alleged author, he had spoken in the spirit of another time, when, branding an appropriation as unconstitutional, he boldly said he would not vote for it, if the enemy were thundering at the gates of the Capitol!

Assuming that the war commenced in violation of the Constitution, we have ample reason for its arrest on this account alone. Of course the troops should be withdrawn to where they were, when, in defiance of the Constitution, they moved upon disputed territory.

But the war is not only unconstitutional, it is unjust, and it is vile in object and character. It had its origin in a well-known series of measures to extend and perpetuate Slavery. It is a war which must ever be odious in history, beyond the outrages of brutality which disgrace other nations and times. It is a slave-driving war. In principle it is only a little above those miserable conflicts between barbarian chiefs of Central Africa to obtain slaves for the inhuman markets of Brazil. Such a war must be accursed in the sight of God. Why is it not accursed in the sight of man?

We are told that the country is engaged in the war, and therefore it must be maintained, or, as it is sometimes expressed, vigorously prosecuted. In other words, the violation of the Constitution and the outrage upon justice sink out of sight, and we are urged to these same acts again. By what necromancy do these pass from wrong to right? In what book of morals is it written, that what is bad before it is undertaken becomes righteous merely from the circumstance that it is commenced? Who on earth is authorized to transmute wrong into right? Whoso admits the unconstitutionality and injustice of the war, and yet sanctions its prosecution, must approve the Heaven-defying sentiment, "Our country, right or wrong." Can this be the sentiment of Boston? If so, in vain are her children nurtured in the churches of the Pilgrims, in vain fed from the common table of knowledge bountifully supplied by our common schools. Who would profess allegiance to wrong? Who would deny allegiance to right? Right is one of the attributes of God, or rather it is part of his Divinity, immortal as himself. The mortal cannot be higher than the immortal. Had this sentiment been received by our English defenders in the war of the Revolution, no fiery tongue of Chatham, Burke, Fox, or Camden would have been heard in our behalf. Their great testimony would have failed. All would have been silenced, while crying that the country, right or wrong, must be carried through the war.

Here is a gross confusion of opposite duties in cases of _defence_ and of _offence_. When a country is invaded, its soil pressed by hostile footsteps, its churches desecrated, its inhabitants despoiled of homes, its national life assailed, then the indignant spirit of a free people rises to repel the aggressor. Such an occasion challenges all the energies of _self-defence_. It has about it all that dismal glory which can be earned in scenes of human strife. But if it be right to persevere in _defence_, it must be wrong to persevere in _offence_. If the Mexicans are right in defending their homes, we certainly are wrong in invading them.

The present war is _offensive_ in essence. As such it loses all shadow of title to support. The acts of courage and hardihood which in a just cause might excite regard, when performed in an unrighteous cause, have no quality that can commend them to virtuous sympathy. The victories of aggression and injustice are a grief and shame. Blood wrongfully shed cries from the ground drenched with the fraternal tide.