The Indianapolis daily herald. [volume] (Indianapolis, Ind.) 1865-1868, 1865-11-20

the others, who were tried and convicted.
The evidence conclusive that they were
guilty Of wilfil murder. iran was ordered
IN Indiana In the wear i-Bg On the third Of
October OF thstyear, .spftin Iii Mc~nty. hav-
ing been duly appointed. was engaged IN noti-
I fying drafted men ~ certain townships in
Davies county q the time and plaes Of their
! rendezvous, and while - engaged these prison.
F er-. conspiring 10 prevent his performance o.
that duty, waylaid and murdered him.
The indictment. We're found under the
twelfth section Il an act q Congress " to
amend an act entitled. :. an act for enrolling
and calling out the national forces and for
other purpose" approved February - 1s8f
-aid twelfth section provides that all persons
who shall assault. abstract. impede or threat
/ en any officer or other person. employed In
making or IN aiding % make such enrolment.
+ or employed IN the performance or aiding In
/ the performance u any ser, ice IN any way re-
iating thereto, hall D. punished by fine and
/ imprisonment; and that lin eases where such
assauliing. abstractIng. hindcring or impeding
shall produce the death 81 such officer or other
/ person. the offender shall be deemed guilty OF
murder Amer the verdict Of the jury, mo-
tons were interposed b arrest the judgments
/ The able counsel for the prisoners. in the ar
gufnent u the motion 10 arrest, insisted that
The "enrollment" was ended. whenever the
names 81 the persons subject TO military duty
were placed on the rolls; and that therefore
the business Of Mctarty. In notifying drafted
4
any service in any way relating TO the ENROLL
ment.'"
/ II was also urged that the original act Of
/ 1853. and the act Of 1864 amendatory OF it,
must be construed together. and that upon a
proper construction Of both statutes there 4. n
distinction between the offense Of resisting the
enrolment and resisting the draft. That sec
ton l. Of the act Of lSj4 furnishes and defines
the former. and section > Of the act of 1853.
/ Furnishes and defines the latter. and that there
= Of I..rrr
may ensue from resistance tO the draft muir
/ der, except the laws Of the state in which the
/ act may occur. In the progress Of the trials
/ the Court did not assent % 80 narrow a con-
i structiOn Of the term enrolment" as ID oc-
/ ours in the 10Th section. ON the contrary. we
ruled that the term a. employed i'm that section
embraces every act necessary 10 bring the ma
/ tional forces in the field. But. n the Federal
courts are not courts Of general common law
jurisdiction a. the State courts are: as they
cannot indict and try for murder. unless the
/ right 10 do 80 l. clearly authorized by Con-
I gress; and a il was strenuOusy maintained al
the bar that the right did not exist i'm this case
and a human life was at issue. we thought il
proper TO take the motion 10 arrest under con-
sideratiOn, and 10 consult the Judges Of the
supreme Court on the question. We have ac-
cordingly interchanged communications with
a majority Of the judges Of the Supreme Court
I and do not lind perfect accord Of opinion on
the question Of jurisdiction.
In THIS case we have considered what we
ought TO do. The question i not whether the
accused have been guilty Of murder and ought
10 suffer death. But the difficult point is
whether they ought 10 De tried and punished
by United States Court, or by state Court
/ and this question should be settled by a formal
| adjudication of the supreme Court at Wash
ton. Unless the question is certified TO the SUI
preme Court, n decision cannot be had, be-
cause Congress has made no provision. even i'm
a case where the penalty is death, for an ap-
peal or writ Of error
We have, therefore, felt il our duty TO GER
ufy the question 10 the supreme Court As
there has been no session Of that Court since
/ these prisoners Were tried, an earlier entry of
the order Of the Court was not important By
the rules Of the Supreme Court. this question
can be heard and decided at the ensuing term,
If the Attorney General requests it. Certifying
the question i'm one Of the cases will suffice, be-
cause precisely the same question arises i'm all.
An entry will, therefore, be made in the ease
George Y. Scott, and the motions i'm arrest in
the other cases are continued. The prisoners
are remanded TO the custody Of the Marshal.