Slavery and the longer continuance of the Mexican War, demanding the retreat of General Taylor and the instant withdrawal of the American forces. Even if we seem to fail in this election, we shall not fail in reality. The influence of this effort will help to awaken and organize that powerful public opinion by which this war will at last be arrested.

Hang out, fellow-citizens, the white banner of Peace; let the citizens of Boston rally about it; and may it be borne forward by an enlightened, conscientious people, aroused to condemnation of this murderous war, until Mexico, now wet with blood unjustly shed, shall repose undisturbed beneath its folds.

INVALIDITY OF ENLISTMENTS

IN THE MASSACHUSETTS REGIMENT OF VOLUNTEERS FOR THE MEXICAN WAR.

ARGUMENT BEFORE THE SUPREME COURT OF MASSACHUSETTS, JANUARY, 1847.

By the Mexican War Bill (approved May 13, 1846) the President was authorized "to call for and accept the services of any number of volunteers, not exceeding fifty thousand," and provision was made for their organization. The Governor of Massachusetts, by proclamation, called for a Regiment in this Commonwealth, which was organized under the Act of Congress. Before it had left the Commonwealth, applications for discharge were made to the Supreme Court of Massachusetts in behalf of several persons repenting their too hasty enlistment. At the hearing, the proceedings by which the Regiment had been organized were called in question. Their validity was denied on the ground that the Act of Congress, in some of its essential provisions concerning volunteers, was unconstitutional, that the enlistments were not in conformity with the Act, — and also that the militia laws of Massachusetts had been fraudulently used in forming the regiment. These points, and the further question, whether a minor is bound by his contract of enlistment under the Act, were argued by Mr. Sumner, who appeared as counsel for one of the petitioners. The Court sustained the validity of the proceedings, but discharged the minors. See In Re Kimball, Murray, and Stone, 9 Law Reporter, 500, where the case is reported.

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MAY IT PLEASE YOUR HONORS,

TH

HIS 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

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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 ter

tium quid.

These forces are referred to and sanctioned by the fol lowing 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