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.