But suppose, for the sake of argument, that companies of militia, as such, may volunteer into the service of the United States, under the Act of May, 1846,--do they continue to be _militia_? Clearly not. They are in no wise subject to the laws of Massachusetts. Her Governor, who was so unfortunately prompt to put them in motion, cannot recall them, although he is commander-in-chief of her militia. They have not her uniform. Their officers are not her officers, but officers of the United States. The corps has become part of the _army_ of the United States, or of its general military force. And this is the legal character of the present Massachusetts Regiment, if it have any _legal character_. "If shape it may be called, that shape has none Distinguishable in member, joint, or limb, 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?