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.
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.