3. "A uniform such as the commander-in-chief shall prescribe" is appointed for the volunteer militia, while volunteers under the Act are subject to no such regulation.
4. The statute of 1846, chap. 218, § 10, provides that each company shall have "one first, one second, one third, and one fourth lieutenant." Mr. Secretary Marcy's requisition (p. 30 of Mr. Cushing's Report[207]) allows to each company "one first lieutenant and two second lieutenants."
By provisions like these Massachusetts has marked her militia that she may know them. She tells them how they shall be apparelled and officered. But the body now called out is so apparelled and officered that the Commonwealth cannot recognize it as her militia.
It seems clear, that, in the light of the Constitution and laws of the United States, and also of the Constitution and laws of Massachusetts, this body cannot be a part of the militia.
But it is suggested on the other side that the companies now raised may be regarded as companies of militia who volunteer as companies into the army of the United States; and it is urged that the requisitions of the Constitution are complied with, inasmuch as the officers of the regiment are commissioned by the Governor. To this it may be replied, that the militia of the Commonwealth have certain specific duties detailed in the statute on the subject (Chap. 92, 1840). For instance (§ 23), three parades in each year, and inspection on the last Wednesday of May; (§ 24) an inspection and review in each year; (§ 27) and particularly to aid the posse comitatus in case of riot. These all contemplate that they shall remain at home. Now it is not to be questioned, that, in any of the exigencies mentioned by the Constitution, they may be ordered from home, in the manner prescribed by the Constitution and laws; but it certainly cannot be allowable for a company of militia to VOLUNTEER as a company into a service inconsistent with the duties prescribed by the laws under which it is established. Adopting Mr. Monroe's distinction, the individuals can volunteer as citizens, but not as a company.
Let us try this point by an analogy. The Commonwealth by its legislation (Rev. Stat., chap. 18) establishes companies of engine-men, who are to be appointed by the selectmen of towns, to protect from fires. Is it supposed that these companies can volunteer, as companies, to enter the army of the United States, and go far away from the scene of the duties for which they were established? But the companies of militia are hardly less local and home-abiding in character than the companies of engine-men. It is impossible to suppose that they can volunteer as companies into the "army" of the United States.
But suppose, for the sake of argument, that companies of militia, as such, may volunteer into the service of the United States, under the Act of May, 1846,—do they continue to be militia? Clearly not. They are in no wise subject to the laws of Massachusetts. Her Governor, who was so unfortunately prompt to put them in motion, cannot recall them, although he is commander-in-chief of her militia. They have not her uniform. Their officers are not her officers, but officers of the United States. The corps has become part of the army of the United States, or of its general military force.
And this is the legal character of the present Massachusetts Regiment, if it have any legal character.
"If shape it may be called, that shape has none
Distinguishable in member, joint, or limb,