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"There were in that House different descriptions of men who could not assent to a vote that seemed to imply a recognition or approbation of the American War."
All these words are memorable from the occasion of their utterance, from the statesmen who uttered them, and from the sentiments avowed. The occasion was the war of Great Britain upon our fathers. The statesmen were the greatest masters of political wisdom and eloquence that England has given to the world. The sentiments were all in harmony with what I have urged on the present occasion. Orators contended with each other in the strength of their language. Lord Camden averred that "Great Britain was the aggressor." The Duke of Grafton declared, that, "while he had a leg to stand on," he would express his "abhorrence" of the war. Chatham gave utterance to the same sentiment in one of his most magnificent orations. And Wilkes, Sheridan, Fox, and Burke echoed this strain, all insisting that the war was unjust, and must therefore be stopped.
Thus far I have quoted testimony from Parliamentary debates on our own Revolution; but going farther back, we find similar authority. When Charles the First sent assistance to the French against the Huguenots in Rochelle, the officers and men did more than murmur; and here our authority is Hume. The commander of one of the ships "declared that he would rather be hanged in England for disobedience than fight against his brother Protestants in France." 1
They went back to the Downs. Having received new orders, they sailed again for France.
"When they arrived at Dieppe, they found that they had been deceived. Sir Ferdinando Gorges, who commanded one
1 Hume, History of England, Chap. L.
of the vessels, broke through and returned to England. All the officers and sailors of all the other ships, notwithstanding great offers made them by the French, immediately deserted. One gunner alone preferred duty towards his king to the cause of religion, and he was afterwards killed in charging a cannon before Rochelle."1
The same sentiment prevailed also in the war upon Spain by Cromwell, when several naval officers, having scruples of conscience with regard to the justice of the war, threw up their commissions and retired. Here again Hume is our authority.
"No commands, they thought, of their superiors could justify a war which was contrary to the principles of natural equity, and which the civil magistrate had no right to order. Individuals, they maintained, in resigning to the public their natural liberty, could bestow on it only what they themselves were possessed of, a right of performing lawful actions, and could invest it with no authority of commanding what is contrary to the decrees of Heaven." 2
Here again it is soldiers who refuse to fight in unjust
Such is the doctrine of morals sanctioned by English examples. Such should be the doctrine of an American statesman. If we apply it to the existing exigency, or try the candidates by this standard, we find, that, as Dr. Howe is unquestionably right, so Mr. Winthrop is too certainly wrong. Exalting our own candidate, I would not unduly disparage another. It is for the sake of the cause in which we are engaged, by the side of which individuals dwindle into insignificance, that we now oppose Mr. Winthrop, bearing our testimony against
1 Hume, History of England, Chap. L.
2 Ibid., Chap. LXI.
Slavery and the longer continuance of the Mexican War, demanding the retreat of General Taylor and the instant withdrawal of the American forces. Even if we seem to fail in this election, we shall not fail in reality. The influence of this effort will help to awaken and organize that powerful public opinion by which this war will at last be arrested.
Hang out, fellow-citizens, the white banner of Peace; let the citizens of Boston rally about it; and may it be borne forward by an enlightened, conscientious people, aroused to condemnation of this murderous war, until Mexico, now wet with blood unjustly shed, shall repose undisturbed beneath its folds.
INVALIDITY OF ENLISTMENTS
IN THE MASSACHUSETTS REGIMENT OF VOLUNTEERS FOR THE MEXICAN WAR.
ARGUMENT BEFORE THE SUPREME COURT OF MASSACHUSETTS, JANUARY, 1847.
By the Mexican War Bill (approved May 13, 1846) the President was authorized "to call for and accept the services of any number of volunteers, not exceeding fifty thousand," and provision was made for their organization. The Governor of Massachusetts, by proclamation, called for a Regiment in this Commonwealth, which was organized under the Act of Congress. Before it had left the Commonwealth, applications for discharge were made to the Supreme Court of Massachusetts in behalf of several persons repenting their too hasty enlistment. At the hearing, the proceedings by which the Regiment had been organized were called in question. Their validity was denied on the ground that the Act of Congress, in some of its essential provisions concerning volunteers, was unconstitutional, - that the enlistments were not in conformity with the Act, and also that the militia laws of Massachu setts had been fraudulently used in forming the regiment. These points, and the further question, whether a minor is bound by his contract of enlistment under the Act, were argued by Mr. Sumner, who appeared as counsel for one of the petitioners. The Court sustained the validity of the proceedings, but discharged the minors. - See In Re Kimball, Murray, and Stone, 9 Law Reporter, 500, where the case is reported.
MAY IT PLEASE YOUR HONORS,
HIS cause has a strong claim upon the careful consideration of the Court. It comes with a trinoda necessitas, a triple cord, to bind its judgment. It is important as respects the parties, the public, and the principles involved.
To the parties, it is one of the highest questions known to the law, being a question of human freedom. It is proposed to hold the petitioner in the servitude of the army for an indefinite space of time, namely, "for the duration of the war with Mexico." During all this period, he will be subject to martial law, and to the Articles of War, with the terrible penalties of desertion. He will be under the command of officers, at whose word he must move from place to place beyond the confines of the country, and perform unwelcome duties, involving his own life and the lives of others.
To the public, it is important, as it is surely of especial consequence, in whose hands is placed the power of life and death. The soldier is vested with extraordinary attributes. He is at times more than marshal or sheriff. He is also surrounded by the law with certain immunities, one of which is exemption from imprisonment for debt.
It is important from the principles involved. These are the distinctions between the different kinds of military force under the Constitution of the United States, the constitutionality of the Act of Congress of May, 1846, and the legality of the enlistments under it. The determination of these questions will establish or annul the immense and complex Volunteer System now set in motion.
In a case of such magnitude, I shall be pardoned for dwelling carefully upon the different questions. In the course of my argument I hope to establish the following propositions.
First. That the forces contemplated by the Act of May, 1846, are a part of the "army" of the United States, or its general military force, and not of the "militia."
Secondly. That the part of the Act of Congress of 1846