Or substance may be called that shadow seems."
It is part of the "army" of the United States, and not of the "militia."
Secondly. It being established that it is not of the militia, but of the army, the way is prepared for the consideration of the other questions. The first of these relates to the constitutionality of part of the Act under which the regiment is raised. Looking at Captain Webster's return in the present case, it will be perceived that he claims to hold the petitioner "because the said Samuel A. Stone has been duly enrolled and enlisted as a member of Company A of the First Regiment of Massachusetts Infantry, whereof the said Edward Webster has been duly commissioned Captain by his Excellency the Governor of this Commonwealth." On this return we have a question of double aspect. 1. Has Edward Webster a right to detain the petitioner? 2. Is the petitioner liable to be detained by anybody? It is possible that the petitioner may be liable, although Edward Webster has no right to detain him. In other words, he may be legally enlisted as a soldier in the "army" of the United States, although Webster is not a legal officer.
And, first, is Edward Webster legally commissioned as "an officer of the United States"? This is an important question, which concerns the validity of his acts. He should be anxious to know if he is a legal officer, that he may not bear the sword in vain. The attributes of a military officer are of a high order. He has power over human life and property to an extraordinary degree. He has power at once executive and judicial; he is sheriff and judge. In these peculiar powers he is distinguishable from common citizens. Such powers the Government can impart,—but only in certain ways precisely prescribed by the Constitution and laws,—only constitutionally, legally, and rightfully. And the question recurs, Have these powers been imparted in such wise to Edward Webster?
This is determined by the Constitution of the United States. That instrument provides explicitly the manner of appointing "officers of the United States." It says (Art. 2, § 2), "The President shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the in the heads of departments." In the next clause it declares, that "the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
From these clauses it appears that all "officers of the United States" are nominated, and by and with the advice and consent of the Senate are appointed, by the President; and it is inferred that they are "commissioned" by the President.
Now two questions arise: whether an officer in the "army" of the United States is an "officer of the United States" in the sense of the Constitution, and whether he is an "inferior officer."
He is not an "inferior officer" in the sense of the Constitution; for his appointment has never been vested "in the President alone, in the courts of law, or in the heads of departments."
He is an "officer of the United States." In support of this is universal custom, which has always treated him as such, the express action of President Monroe and Congress in 1821 with regard to the office of Adjutant-General (3 Story, Com. on Const. § 1531, note), and sundry precedents.