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.
The enormous expenditures lavished upon this war, now extending to
fifty millions of dollars,--we have been told recently on the floor
of the Senate that they were near one hundred millions,--are another
reason for its cessation. The soul sickens at the contemplation of this
incalculable sum diverted from purposes of usefulness and beneficence,
from railroads, colleges, hospitals, schools, and churches, under whose
genial influences the country would blossom as a rose, and desecrated
to the wicked purposes of unjust war. In any righteous self-defence
even these expenditures would be readily incurred. The saying of an
early father of the Republic, which roused its enthusiasm to unwonted
pitch, was, "Millions for Defence, not a cent for Tribute." Another
sentiment more pertinent to our times would be, "Not a cent for
OFFENCE."
And why is this war to be maintained? According to the jargon of the
day, "to conquer a peace." But if we ask for peace in the spirit of
peace, we must begin by doing justice to Mexico. We are the aggressors.
We are now in the wrong. We must do all in our power to set ourselves
right. This surely is not by brutal effort to conquer Mexico. Our
military force is so far greater than hers, that even conquest must be
without the wretched glory which men covet, while honor is impossible
from successful adherence to original acts of wrong. "To conquer a
peace" may have a sensible signification, when a nation is acting in
_self-defence_; but it is base, unjust, and atrocious, when the war
is of _offence_. Peace in such a war, if founded on conquest, must be
the triumph of injustice, the consummation of wrong. It is unlike that
true peace won by justice or forbearance. It cannot be sanctioned by
the God of Christians. To the better divinities of heathenism it would
be offensive. It is of such a peace that the Roman historian, whose
pen is as keen as a sword's sharp point, says, "_Auferre, trucidare,
rapere, falsis nominibus_, IMPERIUM; _atque, ubi solitudinem faciunt_,
PACEM _appellant_": With lying names, they call spoliation, murder,
and rapine, _Empire_; and when they have produced the desolation of
solitude, they call it _Peace_.[211]
[211] Tacitus, Agricola, c. 30.