_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.