The New York herald., 1844-07-15

person Of having advised and assisted another to
commit offence not in fact committed by him,
involves in my judgment, a degree of inconsis ency
wholly rreconcilable with that precision and certainty
which the law demands in the administration of penal
justice and which are essential to the security OF the ch
Besides il the principles applied by the court in the
case OF Fisher had really been applicable TO such
the defendant ought TO have been prosecuted not under
the oath section tor procuring advising and assisting
&c. but under the 10Th section for actually the
letters BY this means the Inconsistency just mentioned
at least would have been avoided. 1t further
marked by the learned Judge, a appears by the
wero to be construed strictly they be
srued strictly to defeat the obvious intention OF the
words used in the act" This position, its just
Is also inconrovertibe; but in my opinion il does not
warrant the decision in support OF which adduced
The question was whether person who sends packet
Of letters by passenger in railroad post road
without the knowledge and against the consent OF the
Of the and their agents s within the words Of
the act think there words in the act descrip
tive ofsuch person. No doubt the design OF the act
to secure to the United States so far as could be done
without improperly trenching upon the freedom OF the
citizen the entire emoluments arising from the transpor
ation oil leers on post roads But this design however
obvious does not ashorse the judicial branch OF the 20
vernment TO extend the act to descriptions of
embraced within its terms however strongly and mis-
chevously their acts may tend to defeat its design II
often happens that what the courts giving constrnc
ton 10 statutes are bound by the settled rules of inter
reation to consider the intention OF the legislature falls
far short OF the general policy and objects Of the act
This remark may be well illustrated hy reference to the
80 section OF the amendaory post office of 1877? by
which 1t is made penal to set up any foot or horse
post for the conveyance OF letters packets upon any
pestroad Now, it is very clear that the transportation
Of letters in rail road drawn by direct
conflict with the design Of this prohibition; and yet
seems TO be agreed all hands that penalty incur
red under il by the copyeyanco of letters in t mode be
the act contains words descriptive of such
offence For the same the act OF 1925 ought not
as think to have been construed to embrace the OF
Fisher II Congress had really intended TO prohibit the
convey OF letters by passenger it would have been
easy by apt terms directly aud PLAINLY to declare such
intent rhe practice oi sending letters oy passenger
III the public conveyances posroads has always and
notoriously prevailed and must have been known TO
Congress in 1925 Until recently letters thus
only occasionally and taken in charge not Tor hire
but as act Of kindness Of social obligation
While the practice was thus restricted II may reasonably
be supposed that Congress did not necessary Of
just to ineriere with it Thespractice has now, some
Of the principle postoads become regulor systemazed
business, carried ON for profit But cannot acquesce
the argument that its extension has altered its legal
ture enlarged the jurisdiction OF the II il has
become evil requiring correction by the public auhori
ty the province of the legislature to apply the remedy
The District Attorney relies chiefly the pro.
J" and his argument s that however it may be with
The words adrts and assist" there is no assurdiiy n
the charge against the defendant OF having procured the
car to carry leersbecGuse by paying his passage be
acquired right TO seat and then used this right the
purpose OF carrying letters IR my judgment this is
unwarrantabe Interpretation OF the word procure, a.
used in the act. II in my opinion, be ar
piled 10 an insnimate thing than the words advise or
assist with which it is associated II does mean
obtain or get possession Of but TO induce by persuasion
bribery, other means, acting the will OF inte
gent being II Is admitted that the offence described in
the 10Th section, only be committed by the wiul
of person and hold il be clear that penalty
be incurred under the oath section except by procur
ing advising assisting the commission of that offence
Upon the whole, therefore, shall consider my duty 10
instruct the jury this point in accordance with he
request OF the defendants counsel Another, and far
more important question has been raised viz whether
the Constitution confer upon Congress the power 10
restrain private citizen from carving letters conpe
tition with the mail OF the United states But upon this
as well as upon the other points relied by the deien
dants counsel II is unnecessary 70 express any opinion
and orhear therefore 10 do SO.
In accordance with this opinion, the jury rendered
verdict in favor OF the defendant.