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 neces

sary 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,

N the winter of 1775, five years after what was called

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.' ” 1

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

1 Life of Josiah Quincy, Jr., p. 320.