Mr. Burke somewhere says that nearly half of the early editions of Blackstone's Commentaries found their way to America. The framers of our Constitution were familiar with this work, and they have reproduced all these four features of the English militia, substituting "State" for "county," and adopting even the peculiar exigencies when they are compellable to march "out of the State." Thus following Blackstone, they have recognized an "army" and a "militia," without any third or intermediate military body.
This same distinction between the militia and army was recognized by Mr. Charles Turner, in the British Parliament, in a speech on the Bill for embodying the Militia, November 2, 1775. "The proper men," he says, "to recruit and supply your troops are the scum and outcast of cities and manufactories: fellows who voluntarily submit to be slaves by an apprenticeship of seven years are the proper persons to be military ones. But to take the honest, sober, industrious fellow from the plough is doing an essential mischief to the community, and laying a double tax."[206]
Let us now apply these general considerations to the present case.
The Act of May, 1846, recognizes a clear distinction between militia and volunteers. It authorizes the President "to employ the militia, naval, and military forces of the United States, and to call for and accept the services of any number of volunteers, not exceeding fifty thousand, ... to serve twelve months after they shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged." The next section (§ 2) provides that "the militia, when called into the service of the United States by virtue of this Act or any other Act, may, if in the opinion of the President of the United States the public interest requires it, be compelled to serve for a term not exceeding six months after their arrival at the place of rendezvous." The ninth section speaks of "militia or volunteers," referring to the two distinct classes.
Now on the face of this Act there are at least two distinct recognitions that "volunteers" are not of the militia: 1st, in providing for the employment of volunteers and also of militia, treating the two as distinct; and, 2d, in providing that the service for volunteers shall be "twelve months or the war," while that of the militia is "six months" only.
There are other reasons. 1st, The volunteers do not come by draft, but by contract. 2d, Then, again, the President is expressly empowered to apportion the staff, field, and general officers among the respective States and Territories from which the volunteers shall tender their services, while, in the supplementary Act of June 26, major-generals and brigadier-generals are to be appointed by the President by and with the advice and consent of the Senate, all of which, notwithstanding the sop to the States in the apportionment provision, is inconsistent with the character of militia. 3d, Another reason why these cannot be militia is, that no such exigency has occurred as authorizes the President to call for the militia,—as, for instance, "to execute the laws of the Union, suppress insurrections, and repel invasions."
Thus far I have sought to bring the proposed body of volunteers to the touchstone of the Constitution and laws of the United States. Let us now see how they conform to the Constitution and laws of Massachusetts.
1. By the Constitution of Massachusetts, the Governor is commander-in-chief of the militia; but he cannot command these volunteers.
2. By our State laws (Chap. 92, March 24, 1840) volunteers in the militia are "to do duty for five years", while volunteers under the Act in question are for "twelve months or the war."