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 providing for the officering of the companies is unconstitutional, and the proceedings thereunder are void. _Thirdly._ That the present contract is illegal, inasmuch as it is not according to the terms of the Statute, which prescribes that it shall be for "twelve months or the war," whereas it is "for the war" only. _Fourthly._ That it is illegal, being entered into by an improper use of the militia laws of Massachusetts, so as to be a _fraud_ on those laws. _Fifthly._ That minors cannot be held by contract of enlistment under the present Act. I shall now consider these different propositions. _First._ The force contemplated by the Act of May, 1846, is a part of the _army_ of the United States, or of its general military force, and not of the _militia_. It is called "volunteers"; but on inquiry it will appear that it has elements _inconsistent_ with militia, while it wants elements _essential_ to militia. Without stopping to consider what these elements are, it will be proper, first, to consider the powers of Congress over the land forces. Congress is not omnipotent, like the British Parliament. It can do only what is permitted by the Constitution of the United States, and _in the manner permitted_. We are, then, to search the Constitution. Here we find two different species of land forces, and only two. These are "armies" and "militia." There is between the two no hybrid or heteroclite,--no _tertium quid_. These forces are referred to and sanctioned by the following clauses, and by no others: "The Congress shall have power _to raise and support armies_; to provide for calling forth _the militia_ to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing arming, and disciplining _the militia_, and for governing such part of them as may be employed in the service of the United States, _reserving to the States, respectively, the appointment of the officers_, and the authority of training the militia, according to the discipline prescribed by Congress." (Art. I. § 8.) And again: "The President shall be commander-in-chief of the _army_ and navy of the United States, and of _the militia of the several States, when called into the actual service of the United States_." (Art. II. § 2.)