The petitioner has been mustered into the service of the United States, not as an individual citizen, but _as a member of the company of which Webster assumes to be captain_. If the company has no legal existence as a company, all the proceedings are void. But the company becomes such only through its officers. Until its officers are chosen, it is an embryo, not a legal body. But its officers never have been chosen in any constitutional way. The company is, therefore, still unborn. Or rather, to adopt the illustration of the Roman Tribune, the "belly" is produced, but the "head and hands" are wanting; so that it is impossible to present a complete body. The conclusion is, that the petitioner is not liable to be held in the service of the United States. This stands upon the _unconstitutionality_ of that part of the law of Congress relating to the peculiar organization of this corps. This same error Congress has committed before. The Act of February 24, 1807 (Statutes at Large, Vol. II. p. 419), provides for volunteers in companies, "whose commissioned officers shall be appointed in the manner prescribed by law in the several States and Territories to which such companies shall respectively belong." In the Act of February 6, 1812 (Statutes at Large, Vol. II. p. 676), these words are repeated. But at a later day it seems the mistake was discovered. By the Act of January 27, 1815, it is provided (§ 4) "that the officers of the said volunteers shall be commissioned by the President of the United States"; and also (§ 8) "that the appointment of the officers of the said volunteers, if received into the service of the United States for the term of twelve months, or for a longer term, shall be submitted to the Senate, for their advice and consent, at their next session after commissions for the same shall have been issued." This bill was much considered in Congress.[208] Notwithstanding all this, the same error is repeated in the Act of May, 1846. [208] See Niles's Register, Vol. VII. pp. 313, 333, 352. I submit, that it will be the duty of the Court to declare the Act of May, so far as it relates to the organization of the _volunteers_, unconstitutional, and all the proceedings under it a nullity. _Thirdly._ But if the law should be regarded as constitutional, it is further submitted that the proceedings under it in Massachusetts have been _illegal_ in two respects: _first_, by the action of the National Government; and, _secondly_, by the action of the Commonwealth. At present we will consider the illegality on the part of the National Government. The Act of May provides for volunteers "to serve twelve months after they shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged." But by the requisition of Mr. Secretary Marcy they are to serve "during the war with Mexico, unless sooner discharged," which is a different term from that in the law.