The New York herald., 1844-07-15

The PRIVATE MAIL QUESTION. We received by
Damon IL Co.'S. express the following decision in
the case of Pomeroy 81 Co. for carrying letters out
OF the mail. 1t will be seen that in Bostcn, Utica,
and indeed in every place but in Philadelphia and
Baltimore, the Judges charge directly against the
government:
[From Utica Gazette, July l2I
In order to give the public the earliest intelligence pos
sibe, OF the recent decision OF Judge Conkng favor
Gsorge + Pomeroy, who was prosecuted by the u 8
Government Tor an alleged violation OF the Post Office
laws, we issue this Extra.
It will seen by this decision that it is lawful to use
the private expresses to facilitate the business and inter-
communication oi the country and that private messen'
gers may pass over Rail Road and steamboat routes with
such matters about their or their luggage they
please to carry others may please to send by
them.
If embarrassments to be placed in the way of c
zsns in the transmission OF their orders ana the like 9TH
er laws than those which now exist must be enacted.
Upon the opening of the Court the Judge delivered his
opinion, as iollows:-
This is a penal action, founded the 10Th and oath
sections OF the act regulating the Post Office Department
passed March g. 1925 BY the l9 section it is enacted
that no stage or ether vehicle which regularly performs
trips apost road road parallel to It, shall carry
letters that for violation of this provision the owner
olhe carriage or ether VEHICLE shall incur the penalty
OF fifty dollars procided that shall be lawful any
one to send letters by special messenger BY other sec
tons Of the act many other acts prohibited, and de
clared punishable And the oath section provides in gen
era terms. that every person who, from and after the
passage OF this act shall procure and advise or assist in
this orbidden, shall be- subject the penal
ties and punishmens the persons subject 10 who
to TO s Of - b s as
claration contains twenty each charging tho de-
isndant with having procured advised and assisted GER
tain vehicle, to wit, railroad performing regular
trips railroad in this district, such road beng post
road to convey letters contrary the OF the
The evidence In behalf Of the United States assuming
that the witnesses entitled to credit establishes the
fact that many letters received by the agents oi
the defendant, for the purpose of being conveyed,
and in fact conveyed for hire by his agents,
acting under the OF messengers the roads
in the declaration in the cars of the owners
of roads and the evidence t.nda 10 prove that this
was done with the knowledge Of the deieidants sui
cheney for this latter purpose, beng however denied by
the counsel Tor the defendant On the other hand it ap
pears that the defendants messengers travelled the
roads in question merely in the character OF passengers
purchasing tickets for that purpose from time time and
that the oil the their agents igno
rant OF the fact of their having letters charge IL il
moreover admitted by the District Attorney that in order
to subject the owner Of vehicle to the penalty provided
by the l9h section of the act it must appear that letters
conveyed in such vehicle with his knowledge and
assent and that penalty has therefore been incurred
under that section by the of the ques
ton Under this state OF the case am called upon by the
Defendants counsel to instruct the jury among other
things that in order 10 render person liable to the pen
atty provided by the Oath section OF the act must be
shown that by his procurement. assistance advice,
other has committed the act forbidden by the
18Th section; and that the plaintiffs have therefore failed
in point of law to establish right OF recovery This pro-
position has been srenuousy and very ably contested by
the District Attorney, who insists that the offence des
crbed the oath section, taken connection with the
18th section i distinct and independent offence which
May be committed by one person without the pariic
patton or agency oi any other person; THIS Is rot
in the courts IL involved in the OF the
United States vs.. Adams and Dinsmore, tried near
y year ago in the District Court Tor the Southern Dis
trict of New York though from the report OF the read
yesterday by the defendants counsel the question does
not appear to have been very distinctly presented the
The opinion Of the court H. however understood
to have been favorable TO the construction OF the law in
sisted by the defendants counsel in thu present
But the OF the United States Kmball tried few
months since in the District Court for the Massachusetts
District and reported in the law reporter for May last
turned directly upon this question The opinion Of his
honor Judge Sprague upon it, after is eabo
rate, and apparently well considered and it wns in
cordancc with the Instruction asked by the defen
dans counsel He held that person who sends letter
by passenger in railroad car, is not liable to the pen
Of the car is liable the penalty provided by the
10Th section The case carried TO the Circuit Court
irmed by Mr. Justice Story. II these had been the
only decisions upon this question should have felt little
hesitation in yielding to their authority But contrary
decision having lately been made by the learned Judges
Of the Eastern District OF Pennsy lvania in the the
United States Fisher and would also from
imperfect report read by the District Attorney, by he
District Court for the District OF Maryland in the Of
the United States Gimour have felt il to be my duty
20 CONSIDER the question az an orgihal ohe and especially
to scr,tinze the con hcng judicial opinions prom ounc
ed in the cases OF kimball and Fisherthese opinions
having, 1t is understood been published under the
sanction OF the learned Judges themselves In doing
this have been essentially aided by he luminous argu
ments Of the learned counsel by whom this trial has
conducted. had read the opinion Of the Judge of the
Massachusetts District upon its first appearance two
months ago, and forcbly impressed with the
of reasoning by which his decision ed and
have already intimaed should not have hesaiel to ac
quiesce in IT, had there been conflicting decision and
but for the forcbe argument of the District Attorney
the present My attention has therefore been chiefly
directed to the reasoning OF his honor Judge Randall and
that OF the District Attorney. The learned Judge in
signing his for the conclusion at which he had
arrived, s reported TO have sad that offences OF
the highest grade, may be committed through the Red
um OF an innocent agent and the employer be snswera.
be principal although present when the act
committed Thus he adds, /" one who employs
idiot child under the age of discretion to do an
unlawful is liable TO punishment for IT, although the
done in his aosencep This is undoubtedly sound
doctrine but am not able TO perceive any propety in
its applicati TO the question The reason why
who employs child IDIOT, instIgates mad
toicommit crime s himself directly responsible
principal instead OF being but accessory before the
dct H. that the immediate actor is irresponsible. For
every offence committed some must necessarily h
amensbe the principal offender In The
by the learned Judge If the agents ac
countsbls for their all could only be as prc
pals but being irresponsible he ~ their acts were
prompted, Is justly substituted in their piace-ins A.
one who should mhcionsy unchain Wild beast IN he
midst oil popuous town would be- held accounfBble
principal, for the injury which should pccru, -
But the reasons OF this focne do EXIT when the nm
lawful act Is perpetraed by person vino Ia him
nable 10 the law Tor his acts and therefore the doctrine
self is naTplicabe 70 such case The owrer and con
ductor OF the railroad such persons and rthsy
were responsible for II principals But Il Yves con
cedej that in the eye Of the Law they did commit H.
and justly-becsuse according 10 an old and well cstnb
lshsd legal maxim, the mind and the act bjcb
constitutes the criminal Neither was pretended th.t
the act prohibited by the 18th tectonhat convey ing
letters III vehicle regularly performing trips post
road-was committed by the defendant. The charge
against him that he procured and advised or assisted