United States v. Scott

On the 3d March, 1863, Congress, with a view to enable the government to put down the rebellion, which was then exerting itself to destroy the nation, passed 'An act for enrolling and calling out the national forces, and for other purposes.' This act creates boards of enrolment, and prescribes their duties.

By one section, each board was to be composed of the provost marshal of the district as president, and two other persons, to be appointed by the president, one of whom was to be a licensed and practising physician and surgeon.

By another, the board was to appoint enrolling officers, whose duty it should be to enrol all persons of their districts subject to military duty, noting their age and places of residence, and to report all to the board of enrolment, who were to consolidate the names 'into one list.'

By another section it was enacted, that whenever it might be necessary to call out the national forces for military services, the President might assign to each district the number of men to be furnished by it; and thereupon the enrolling board, 'under the direction of the President,' had power to make a draft of the required number, and a complete roll of the names of the persons so drawn, and the persons so drawn were to receive notice of the fact, requiring them to appear at a designated rendezvous to report for duty.

Another section required, that all persons who had been drafted and received notice should, on arriving at the rendezvous, be inspected by the surgeon of the board, who was to report to the board the physical condition of each one; and that all persons drafted and claiming exemption from military duty, on account of disability or any other cause, should present their names to the board, whose decision as to their right of exemption should be final.

The 16th section authorized the board to discharge any excess of numbers; and provided that the expenses connected with the enrolment and draft, including subsistence while at the rendezvous, should be paid from the appropriation for enrolment and drafting, under such regulations as the President of the United States should prescribe.

By the 25th section of this act it was enacted.

'That if any person shall resist any draft of men enrolled under this act into the service of the United States, or shall counsel or aid any person to resist any such draft; or shall assault or obstruct any officer in making such draft, or in the performance of any service in relation thereto; or shall counsel any person to assault or obstruct any such officer; or shall counsel any drafted men not to appear at the place of rendezvous, or wilfully dissuade them from the performance of military duty as required by law, such person shall be subject to summary arrest by the provost marshal, and shall be forthwith delivered to the civil authorities, and, upon conviction thereof, be punished by a fine not exceeding $500, or by imprisonment, not exceeding two years, or by both of said punishments.'

On the 24th February, 1864, Congress passed an act 'to amend' the former one. This amendatory act recognizes the old 'boards of enrolment;' declaring that they 'shall enrol all persons liable to draft;' and section three of the act declares that if the quotas are not made up within a time fixed by the President, the provost marshal of the district shall, under the direction of the provost marshal general, 'make a draft for the number deficient.'

The 12th section of this amendatory act reads as follows:

'That any person who shall forcibly resist or oppose any enrolment, or shall incite, counsel, encourage, or who shall conspire or confederate with any other person or persous, forcibly to resist or oppose any such enrolment; or who shall aid or assist, or take any part in any forcible resistance or opposition thereto; or who shall assault, obstruct, impede, or threaten any officer or other person employed in making or aidiug to make any such enrolment, or employed in the performance, or aiding in the performance, of any service in any way relating thereto, &c., shall, upon conviction, be punished by fine not exceeding $5000; or by imprisonment not exceeding five years; or both of said punishments, in the discretion of the court. And in cases where such assaulting shall produce the death of such officer or other person, the offender shall be deemed guilty of murder, and upon conviction, &c., be punished with death, &c. And nothing in this section shall be construed to relieve the party offending from liability, under proper indictment or process, for any crime against the laws of a State.'

The amendatory act repeals so much of the former act as may be inconsistent with it.

In this state of the statutes, Scott was indicted, in the Circuit Court for Indiana, under the above quoted 12th section of the amendatory act of 1864, for the murder of Eli McCarty. The indictment charged that McCarty was murdered while in 'the performance of his legal service in relation to the enrolment of the national forces;' but in stating more particularly what that service was, it was alleged to be the 'serving with notice the enrolled and drafted men, requiring them, as such enrolled and drafted men, to appear, &c., and report for military duty.'

Scott was tried and found guilty. But on a motion in arrest of judgment, the judges of that court were divided in opinion upon the question, whether the services of McCarty, in notifying to 'enrolled and drafted men' to appear at the designated rendezvious 'and report for military duty,' considered in connection with the other averments in the indictment, constituted any employment in the performance, or in aiding in the performance, of any service in any way relating to the enrolment mentioned in the said 12th section?

The ground of the query doubtless was-as McCarty was engaged in notifying to enrolled and drafted men to appear at the place of rendezvous-that this presupposed not only a completed enrolment, but a draft in pursuance of it; and the work in which he was engaged had direct relation to the draft, and necessarily followed it. Could the court, then, pass over the important act of the draft, from which the duties of McCarty directly resulted, and without which he would have had no power to act, and attach the service, in the performance of which he was engaged, to the antecedent act of enrolment?

The division being certified here, the question, whether the service of a notice of the draft was a service relating to the enrolment, within the meaning of the 12th section of the act of 1864, was now before this court for resolution?

Mr. Speed, A. G., and Mr. Coffey, special counsel of the United States, contended (Messrs. McDonald and Niblack, contra) that the act of March 3, 1863, to which the one under which Scott was indicted is an amendment, provided a system for the enrolment and calling into service of the military forces of the country; that the execution of the details of the act was intrusted to three officers, called a board of enrolment; that the duties of this board did not end with the ascertainment of the names of persons liable to a draft and placing them on a list kept for that purpose, but extended to all acts necessary to place the drafted man in actual service, and under the control of his military commander; that the word 'enrolment' was used as a general term, and included all the services required to put the drafted man into such service and under such control; that the law intended to prevent resistance to any lawful act of this board, and to protect the lives of its members and their agents, while engaged in such service; and the counsel inferred as a conclusion that the answer should be in the affirmative, and with the effect, of course, of not making any arrest of judgment.

Mr. Justice MILLER delivered the opinion of the court.