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.

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.

Charles Sumner: his complete works, volume 01 (of 20) · 第 27 / 28 段