How much soever this may be deplored, it forms no ground for any legal questioning of their acts. What they did, under the directions of an Act of Congress, as agents of the United States, would be legal, provided it was not forbidden by the laws of the State. But although they might volunteer as agents of the United States in raising troops for the Mexican War, acting under the law of Congress, they cannot employ the State laws for this purpose. They cannot be justified in diverting the laws of the State to purposes not originally contemplated by these laws, and inconsistent with their whole design and character. Such was the employment of the militia laws of Massachusetts. These laws have been made by the Executive the instruments, the "decoy-ducks," to get together the Falstaff regiment whose existence is now drawn in question. The whole proceeding is a fraud on those laws.
It is the duty of this Court, as conservators of the laws of the Commonwealth, bound to see that they receive no detriment, to guard them from such a perversion from their true and original purpose. This can be done only by annulling the proceedings that have taken place under them.
Such are the objections to the legal character of the Massachusetts Regiment. If either of these should prevail, then the whole regiment is virtually dissolved. It becomes a mere name. Stat nominis umbra. Or it is left a mere voluntary association, without that quickening principle which is necessary to a military organization under the Constitution and laws of the United States. It is like the monster Frankenstein, the creation of audacious human hands, endowed with a human form, but wanting a soul.
Fifthly. But suppose the Court should hesitate to pronounce the nullity of these proceedings, and should recognize the legal existence of the regiment, it then becomes important to determine whether there are any special circumstances in the case of the petitioner which will justify his discharge. The party that I represent is a minor, and as such entitled to his discharge. The question on this point I have reserved to the last, because I wished to consider it after the inquiry whether the regiment was a part of the "army" or the "militia," in order to disembarrass it of considerations that might arise from the circumstance that the militia laws embrace minors. I assume now that the regiment, if it have any legal existence, is a part of the "army."
The jurisprudence of all countries wisely provides a certain period of majority, at which persons are supposed to be able to make contracts. This by the Common Law is the age of twenty-one.
Now enlistment in the army of the United States is a contract. The parties are volunteers, and the term implies contract. And the question arises, whether this contract is governed by the Common Law, so as to be voidable when made by a minor. Is the circumstance that the contract is made with the Government any ground of exception? If an infant were to contract with the Government to sell a piece of land, he would not be bound by it any more than if the contract were with a private person. Is the circumstance that the contract is military any ground of exception? If an infant were to contract to furnish military supplies to Government, he could not be held more than by any private individual.
The rule of the Common Law as to the incapacity of infants is specific. An exception to it must be established by express legislation,—as, in the case of capacity to make a will, to marry, or to serve in the militia. Congress has recognized this principle by expressly declaring, on several occasions, that persons between the ages of eighteen and twenty-one may be enlisted. The argument from this is clear, that without express provision such enlistments would not be binding. The Acts of January 11, 1812 (Statutes at Large, Vol. II. p. 671), and December 10, 1814 (Ibid., Vol. III. p. 146), contain such provisions. And we are able from contemporary history to ascertain what was the understanding concerning them. I refer particularly to Niles's Register, Vol. III. p. 207, and the discussion there on the first of these Acts; also to Vol. VII. p. 308, where will be found an important document making this legislation of Congress a special subject of complaint.
It is argued, however, that the United States have no Common Law, and cannot, therefore, be governed by the rules of majority therein established. Although it may be decided that the United States have no Common Law as a source of jurisdiction, yet it cannot be questioned that they have a Common Law so far as may be necessary in determining the signification of words and the capacity of persons. Idiots and femes-coverts would not be held as volunteers in the army of the United States; but their capacity is determined by the Common Law, and not by any special legislation.
I conclude, therefore, that the contract of enlistment in this regiment may be avoided by a minor.