The right to enlist soldiers is determined by the laws. Its exact extent is measured there. It is not dependent upon the judgment or conscience of any Secretary,—as if his foot were the standard of physical measure. The law expressly says, that the enlistment is to be for "twelve months or the war." Now it cannot have been the intention of Congress to obtain enlistments for the indefinite period of the war,—for ten years, like the Trojan War, or thirty years, like that of Wallenstein, in Germany. They wished to hold volunteers for twelve months, or even for a shorter time, if the war should be ended sooner; and at the time of this untoward Act it was supposed that it would be ended sooner. The militia, in this Act, are called out for "six months" only.
By the Act of February 24, 1807 (Statutes at Large, Vol. II. p. 419), the volunteers are "for the term of twelve months after they shall have arrived at the place of rendezvous, unless sooner discharged"; and for the same term by the Act of February 6, 1812 (Vol. II. p. 676). But by the Act of February 24, 1814 (Vol. III. p. 98), the term was "five years, or during the war." By the Act of January 27, 1815 (Vol. III. p. 193), the term was "not less than twelve months." By the Act of January 27, 1814 (Vol. III. p. 94), the term of soldiers in the regular army was "five years, or during the war." I mention these precedents, to show that this question may have arisen before, although we have no reports of it from any judicial tribunal. But we have the express opinion of the late Mr. Justice Johnson, of the Supreme Court of the United States, in a note to his elaborate Life of General Greene, written not long after the Acts of Congress to which I have referred. It was printed in 1822. He says: "The point on which the Pennsylvania line really grounded their revolt was the same which has been more recently much agitated between the American Government and its army. The soldiers were enlisted for a certain number of years, or the war. At the expiration of the term of years they demanded their discharge; and after resisting this just claim, and sustaining all the terrors and real dangers of a revolt, ... the Government was obliged to acquiesce. For so many years or the war certainly meant for that time, if the war should so long last. Else why specify a term of years?—as enlistments for the war would have expressed the sense of the contracting parties." (Vol. II. p. 53, note.)
On the authority of Mr. Justice Johnson, the question seems to be clear. But if there be any doubt, the inclination must be against the Government. They are the powerful and intelligent party; the soldier is powerless and ignorant. The Government are the inviting, offering, promising party. To them applies the rule, Verba fortius accipiuntur contra proferentem.[209]
But it is said on the other side, that the "twelve months" have not yet expired; and it does not follow that the volunteers will be detained beyond that period. But the case now is to be judged on the contract. Is the contract legal or illegal, under the Act of Congress? It is submitted that it is illegal.
Fourthly. I submit that the proceedings in Massachusetts under the Act of March are illegal, inasmuch as they are a fraud upon the militia laws of the Commonwealth. This brings me to a part of the case humiliating to Massachusetts.
We have already seen the purpose of these laws, contemplating the performance of duties at home,—as, in preserving the peace, and aiding the posse comitatus. These purposes are distinctly declared by the Legislature. (Chap. 92, 1840.) But by the agency of State officers these laws have been employed—I would say, prostituted—to a purpose widely different: not to help preserve the peace at home, but to destroy peace abroad. It appears from the communication of the Adjutant-General, that he resorted to the device or invention of using the militia laws of the State in order to enlist soldiers to make war on Mexico. The following is the form of an application to be organized as a company of the Massachusetts militia,—the applicant expressly setting forth objects inconsistent with the duties of the militia.
"Charlestown, January 4, 1847.
"To His Excellency, George N. Briggs, Governor and Commander-in-Chief of the Commonwealth of Massachusetts.
"Sir,—The undersigned, in behalf of himself and his associates, whose names are duly enrolled therefor, respectfully requests that they may be duly organized as a company, to be annexed to the First Regiment of Massachusetts Infantry: it being understood, that, when so organized, they desire and assent to be placed at the disposal of the President of the United States, to serve during the existing war with Mexico. And as in duty bound will ever pray.
(Signed,) "John S. Barker."
Thus the Executive of the Commonwealth placed all the apparatus and energy of the Adjutant-General, and of the militia laws, at the service of certain petitioners, well knowing that these persons were not to enlist bona fide in the honest militia of Massachusetts, but with the distinct understanding that they should be placed at the disposal of the President of the United States, to serve during the existing war with Mexico. I do not complain that the Governor or the Adjutant-General lent himself officially or personally to this purpose, though I have my regrets on this score; but I do complain that the laws of Massachusetts are prostituted to this purpose.
It has been decided by the Supreme Court of the United States, in Prigg v. Pennsylvania, (16 Peters, 539), that State officers are not obliged to enforce United States laws. The Nation must execute its laws by its own officers. Under the lead of this decision, the Legislature of Massachusetts passed a law making it penal for State officers to arrest or detain in public buildings any person for the reason that he is claimed as a fugitive slave (Act of 1843, Chap. 69), although the Act of Congress of 1793 contemplates the action of State officers. By this legislation Massachusetts has clearly shown her determination to take advantage of the principle in Prigg's case. The Governor and the Adjutant-General, not heeding the spirit of our Commonwealth, made themselves recruiting officers of the United States, as much as if they had enlisted sailors for the ship-of-war Ohio, now lying in our harbor.