Democrat and sentinel. [volume] (Ebensburg, Pa.) 1853-1866, 1863-10-07

performance or any service in relation t
thereto, or shall counsel any person to as {
sault or obstruct any such officer, or shall s
counsel any drafted men not to appear at f.;
the place of rendezvous, or wilfully dis I
suade them from the performance of mill
tary duty as required by law, such person
shall be subject 20 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 five hundred dollars, or
by Imprisonment not exceeding two years,
or by both of said punishments.
Now, TO US, it seems clear that upon
purely technical grounds, this Indictment .
is vicious. Ii charges the defendant with |
an ''assaut - and obstructing an officer in |
making the enrolment :" whereas, there is
no such offence named in the act. And /
it is quite clear that, "where the words !
of a statute are descriptive of the offence,
/ the Indictment should follow the language,
/ and expressly charge the described offence
on the defendant, or it will be defective" "
! '' i is necessary that the defendant should
/ be brought within all the material words
of the statute, and nothing can be taken
by intendnent" IF the indictment
profess to recite the statute, a material
variance will be fatal or if the statute do
not support the verdict, ii must fail"
- The Indictment must show what offence
has been committed, and what penalty
incurred, by positive enactment 1t is
not sufficient that they appear by infer
ence.
1t would be an cfTtctation Of research,
TO cite authorities for the foregoing pHopo-
: sitions. They and many others Of like
character. may be found in l Chtty's
Criminal Lnw, 276, ct seq, and in War
, tons C;-ja,iHol Lar, ith ed. sec. 500
The act of Congress, then, making the
= obstruction of the G'aft TO constitute the
! offince, and the Indictment charging an
ohstructiug Of the enrolment, is a fatal
variance and, on this ground, if no other
: existed, the Judgment should be arrested.
n But il is the law, and not the officer OF
the law, that is at fault Had the learned
70 gentleman who prosecutos for the Govern.
. ment, followed the act under which this
e bill was framed, the allegata and the pro
% jata would have disagreed, and his prose
70 cution would have failed on facts.
70 But this is not the only, nor, indeed
: the main reason. for moving in arrest o
: Judgment From such examination a
or we have been able to give the case, w
i, are firm iii the conviction that the so-cale'
- .Econscription act" provides no penalt
- for :: obstructing the enrolment : nay
more, that it never contemplated any pen
~ atty Of the kind that it is neither to b
no found in its letter nor its spirit.
:, The terms of the 25th, or penal sccto!
-, arc clearly expressed and easily under
=, stood. The offences to be visited by
- penaltv commence with the druf, an
't have no reference whatever to the enrol
led mcnt Nay, the act Of speaking OF II
,ho draft. uses the word - enrolled " in sue
manner as to forbid the application of ar
for of the penalties to the process OF enroiiiI
at al-trcating the enrolment as a thu
I'D mast and finished 1t would have bee
no quite as easy for Congress to have ma'
,ho resistance 10, or obstructing the cnFotLnle'
I'll an offence, as obstructing the draft, 3
nto they did not do 50.
On But we are gravely told that this
in should receive a liberal construction
en- favor of the government, and against I
- nrisoner The rule is novel one to
he Every law, and every section OF any la
hall infiicting a penalty, is certainly per
law. and to be strictly construed IN fax
of the citizen. And while that portion
G5;,cr this law, which, for arguments sake,
hall might call the reiii''''''i - e.
the which is directory upon the oticers
should be literally construed, to etfectu
call its general purpose, still its penal pro
SER sions must be subject to the same ri
lied which govern other penal laws >
~ Of Jones vs.. Estis, Johnson's Rep 3
and Berry VS.. Ripley. Mass. Term Rep. L
nder See also, l Baldwin, 316i Cow
he n 4l9: l3 johnson, 497 ; ct a.
The reason of this is obvious. hV
to free government has the most tender
luct of her citizens the government is stre
the the citizen weak Here, the Congress
IN the United States enact law; the II
/, ex- dent of the United States gives 1t hls s;
their ton, and executes it; while the Judlcl
the remaining branch of the governm
lause sits to expound it.
h the On the other hand, (and in this ca
e fol- is a fact, and not figure one OF
verv humblest citizens is charged WI
acted, violation of the law. The law Is ad
draft ted by the officers of the government,
70 the declared by this court, to be, at 1t
shall doubtful in its terms. The question
It any comes this shall the law be stra
t any from its plain language, by judicial
in the lation. to cover what may have bee