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UNITED STATES V. SCOTT, 70 U. S. 642 (1865)

U.S. Supreme Court

United States v. Scott, 70 U.S. 3 Wall. 642 642 (1865)

United States v. Scott

70 U.S. (3 Wall.) 642


Upon a comparison of the 25th section of the Act of 3 March, 1863, passed during the rebellion, "for enrolling and calling out the national forces and for other purposes," with the 12th section of the Act of 24 February, 1864, enacting that any person who shall forcibly resist or oppose any enrollment of persons for military service &c. shall be punished &c., held that the former act is limited to the prevention of resistance to the draft, and the latter to preventing resistance to the enrollment. Comparing the two acts together, the latter one is to be regarded as a legislative construction of the first, by which a service in relation to the draft is not a service in relation to the enrollment.

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." [Footnote 1] This act creates boards of enrollment, 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 practicing physician and surgeon.

By another, the board was to appoint enrolling officers, whose duty it should be to enroll all persons of their districts subject to military duty, noting their age and places of residence, and to report all to the board of enrollment, 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

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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 enrollment and draft, including subsistence while at the rendezvous, should be paid from the appropriation for enrollment 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 willfully 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. [Footnote 2] This amendatory act recognizes

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the old "boards of enrollment," declaring that they "shall enroll 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 enrollment or shall incite, counsel, encourage, or who shall conspire or confederate with any other person or persons, forcibly to resist or oppose any such enrollment; 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 aiding to make any such enrollment, 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 $5,000 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 enrollment 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

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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 rendezvous "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 enrollment 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 enrollment, 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 enrollment?

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

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