United States v. Scott/Opinion of the Court

by Samuel Freeman Miller

United States Supreme Court

70 U.S. 642

United States  v.  Scott

The argument made in behalf of the United States is entitled to much consideration, and if there were nothing in the other provisions of the two statutes which have been discussed, to lead to the inference that Congress used the word enrolment in a narrower sense than the government would assert, it is not improbable that the court would assent to the soundness of the proposition made.

It is to be observed, however, that this construction of the word enrolment must depend entirely upon the statute for its support, as there is nothing in the derivation of the word, or in its ordinary use, which would justify such a meaning. It may be defined to be the act of inserting in a list or roll; and in reference to the purpose of calling the able-bodied men of the country into its service, its usual meaning is fully satisfied when the names of the persons liable to such service are placed on a roll or register. We accordingly find that the first duty imposed by the act on this board of enrolment, is to ascertain who those persons are, and place their names on a register. This catalogue is properly called the roll, and the completion of it, the enrolment of the military force of the country.

The title of the act of 1863, which is referred to and incorporated into the amendatory act of 1864, confirms this definition of the word enrolment. It is called 'An act for enrolling and calling out the national forces, and for other purposes.' Here the word enrolling is not used as the equivalent for all the acts necessary to bring the soldier into service; for it is implied that the enrolling is one thing, and the calling out is another. Otherwise, these last words are without meaning.

A further examination of the two statutes tends still more to confirm this view of the signification attached to the word enrolment. By those acts the boards of enrolment are directed to ascertain the persons liable to military duty, to determine their exemptions, to classify them and make proper lists of them; and there their duty, as a board, ceases, so far as it depends on the statute. They have no authority, under the statute, to make a draft, or to call out the forces. This is dependent on the proclamation of the President. The enrolment may be completed and all the duties of the board performed and ended, without a draft taking place. How, then, can it be said that the enrolment includes the draft?

Again, the enrolment is a matter which is under the joint control and supervision of all three of the officers who constitute the board. But by section three of the act of 1864 the provost marshal alone is charged with the duty of making and supervising the draft.

Looking at these provisions of the act, the conclusion would seem to be, that if the word enrolment, as used in section twelve of the act of 1864, is to have the enlarged meaning which is contended for, it must have a different meaning there from that which belongs to it and its cognate words in other parts of the two acts on the same subject.

But if we consider attentively section twenty-five of the original act of 1863, in connection with the section which we are called upon to construe, we shall be forced to the conclusion that the word enrolment in the latter, does not include the draft.

By the former it is enacted, that if any person shall resist any draft of men enrolled under this act, or shall counsel or aid any person to resist any such draft, or shall assault or obstruct any officer making such draft, or in the performance of any service relating thereto, such person shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both such fine and imprisonment.

It will hardly be asserted that the act of 1864 repeals this provision of the act of 1863; for there is no express repeal, and repeals by implication are allowed only when the two provisions are so inconsistent that they cannot both be permitted to stand. No such inconsistency exists in this case; for using the words draft and enrolment in their ordinary sense both acts can stand, the one punishing resistance to the enrolment, and the other resistance to the draft.

If both these sections, in these two acts, are to stand, it is impossible to construe them both as defining and punishing the offence of resisting the draft: first, because the punishment denounced by the act of 1863 is limited to a fine of five hundred dollars, or two years' imprisonment, or both, while the punishment prescribed by the act of 1864 may extend to a fine of five thousand dollars, or imprisonment for five years, or both; secondly, because the act of 1863 describes and well defines offences relating to the draft, and says nothing about offences relating to the enrolment, while the other, with equal clearness, defines offences relating to the enrolment, and says nothing of the draft.

It may be said that the act of 1863 makes no provision for an assault resulting in death, while that of 1864 does; and therefore the provisions of the latter should be made to cover cases where the party murdered was engaged in a service relating to the draft. It is possible, if the attention of Congress had been called to the omission, it would have been supplied; but certainly no court can go so far as that, in construing a statute whose penalty is death.

To make a party guilty of murder under the act of 1864, it is clear that the assaulting and resistance from which the the death results, must be an assault or resistance of a person engaged in precisely the same service as that which subjects the guilty party to fine and imprisonment, when it does not so result. The definition of the service in which the officer assaulted was engaged, can have no more liberal interpretation in the one case than the other. We have already shown that this does not include service in relation to the draft.

It is not difficult to explain the motives which governed Congress in enacting section twelve of the act of 1864. At the time the act of 1863 was passed, it was not anticipated that any trouble would be made to the officers engaged in merely obtaining the names of persons liable to draft, while it was supposed there might be some resistance, in particular cases, to the enforcement of the actual draft. But a year's experience showed many defects in the act of 1863, requiring amendment. Among these it was found that resistance to the enrolment was a thing to be expected, quite as often as resistance to the draft. The extent and malignity of this resistance had also been found to be greater than had been anticipated, and the increased demand for soldiers, rendered more stringent legislation necessary. Hence Congress, among many other amendments, provided for the case of resistance to the enrolment, and in doing so, made the penalty heavier than what it had provided for resisting the draft, and added a provision for punishment in cases of resistance resulting in the death of an officer or agent engaged in making the enrolment. That it did not provide for a similar homicide occurring in a service relating to the draft, may have been an omission, but not a remarkable one, when we consider the many other weighty matters which the pressure of the rebellion forced on its attention, and also that the law of the State made full provision for cases of murder.

QUESTION ANSWERED IN THE NEGATIVE.

[See the next case.-REP.]

Notes