The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-10

pernicious ceunsel hes led. II bsscss Of felony,
be % By the common law an Accessory before The
fact. and BY the law. o. the United States and Of
this State u punishable TO tho Same extent as the
principal feaon. VT be Gaze Of misdcmeanor the
adviser u himself principal offender. and is to be
indicted and punished II be himself had done the
criminal act. Il may be important for you to know
or counselling another a. will be sufficient to con-
situie this legal element in the offence. 1t ia laid
down by high authority, that though mere tacit
acquiescence, or words, which amount to bare per-
mission. will not be sufficient yet such procure
ment may be, either by direct means. as by hire,
counsel, or command, or indirect, by eyincng an ex
prese hiking, appreciation, or assent to anothers
criminal design. From the nature OF the case, the
law can prescribe only general rules this subject.
My instruction to you is that language addressed to
persons who Immediately afterwards commit an Of
fence, actually intended by the speaker to incte
those addressed to commit it, and adapted thus 70
incitc them is such a counseng or advising to the
crime as the law contefnplates, and the person 40
melting Others is liable to be indicted as princi
pal.
In the case of the Commonwealth VIZ. Bowen, Us
Mass. r. $3.50 which was an indictment for counsel
ling another TO commit suicide, tried in 1916, Chief
Justice Parker, instructing the jury. and speaking
for the supreme Court OF Massachusetts,, said -
The government Ia not bound 10 prove that Jewett
would net have huI hims. had Bowen's osel
reached his The very act of advising the
SIGN a crime Of itself unlawful The presumption Of
by the adviser unless it Is shown to have been other
wise as hat the counsel received with scof,
maniiebliy rejected and rdiculed at the time /.
given II sai5 in the argument that Jewett's aban
dcned and depaved character furnishes ground to be-
eye tha, lie would have committed the act without such
advtce from Bowen Without doubt he hardened
ard Gepaved wretch but Is in mans nature TO revolt
at ssii destruction When person ia predetermined
a. On the commission OF this crime, the seasonabe adrao
n;ous Of ds:ree and respected friend would probably
teno 10 overthrow his deter On the other hand
the counsel an UNI rincipled wretch stating the hero
duce encourage, and FIX the Intention and ultimately
procure the Penetration Of the DIRE decd ana IL
oiier would be Influenced by such sdyce, the pre-
sumption is that JeWett 80 Influenced. He might
have been influenced by many powerful motives to de
efficient 70 procure the actual commission of the act
and word of additional advice might have turned the
scale
When applied rs this ruling seems TO have been
here aprled-to q case in which the advice was
nearly connected in point of time with the criminal
act 1t Is in my opinion, correct II the advice was
intended by the giver to stir or incte to crimen
1t was Of such nature as to be adapted to have this
effect, and the persons melted Immediately after
wards committed that crime-itis a just presumption
that they were Influenced BY the advice or incite-
ment to commit it. The circumstances, or direct
pgssf, may or may not be sufficient to control this
piesumption; and whether they are so, can duly be
determined in each case, upon all its evidence.
One other rule of law on this subject is necessary to
be borne in mind-the substantive offence to which
tie advice Indictment applied must have been
committed; and it is for that alone the adviser or
procurer is legally accountable Thus If one should
counsel another 70 rescue one prisoner, and he
should rescue another, unless by mistake; or If the
Indictment was to rescue prisoner, and he commit
larceny, the incter il not responsible. But it
need hot appear that the precise time, or place, or
means advised, were used. Thus If one incite to
murder Il, but advise him to wait until shall be at
o certain place at noon and murders at differ
ent place in the morning, the adviser is guilty So
if the Indictment be to poison and the murderer
shoots or slabs. So il the counsel be to beat
anO fhnr and he e hpnf IN Heath tha oil ia u
murderer; for having melted another to commit an
unlawful act, he is responsible for all that cnsues
upon its execution. These illustrations are drawn
from cases Of felopies, because they are the most
common In the books and the most striking in them
selves; but the principles on which they depend
are equally applicable to cases OF msdemeanor In
all such cases Che real question Is whether the &C
cused did procure, counsel, command or abet the
substantive offence committed. If he did, it Is OF
no importance that his advice or directions wore
departed from in respect to the time. or plaoe, or
precise mode or means OF committing II.
Conference.-The events which have recently oc-
Cured in this city, have rendered it my duty to call
your attention to these rules of law and to direct
you to inquire whether in point of fact the offence
Of obtucting process Of the United States has been
committed; II 1t has, you will present for trial all
such persons as have 80 participated therein as to
be guilty CT that offence. And you viii allow to
say TO you that If You or were TO begin to make
Determinations between one law aud another, and
ray this We will enforce and that will not en-
force we should not only violate oaths but far
in rs lies we slo,ld destroy the liberties of our
country which rest for their basis uponthc great
principle that our country is governed by laws, con-
sttutionalIy enacted, ard not by men.
In one part OF our country the eXtradition Of fu-
gti,es from labor is odiors; in another II we may
judge from some transactions, the law concerning
the extradition OF fugitves from justice has been
deemed not binding; in another STILL the tariff laws
Of the United States were considered oppressive,
and not 1T to he enforced.
Who can fail to see that the government would
cease to be government fit to yield obedience
to those local opnionsf While il stands, all its laws
must be faithfully executed, or it becomes ths mere
too OF the strongest faction OF the place and the hour
III forcible resistance to one law be permitted prac
ticGy to repeal it, the power of the mob would in
eytably become one of the constituted authorities
OF the State, to be used against any law any
obnoxious to the interests and passions OF the worst
or most excited part Of the community; aud the
peaceful and the weak would be at the mercy OF
the violent.
II is the imperative duty of all of us concerned
in the administration OF the laws to see to it that
they are firmly, impartaily and certainly applied
to every offence, whether particular law be by us
individually approved or disapproved. And it be-
comes all to remember, that forcbe and concerted
resistance to any law is civil war, which can make
no progress but through bloodshed, and can have
no termination but the destruction Of the govern
ment Of our country, or the ruin of those engaged
in suchsesistance. II is not my province to COM
ment on events which lave recently happened.
They are matters Of fact which, SO far as they are
connected with tie criminal laws of the United
States, are for your consideration l feel no doubt
that as good citizens and lovers of our country,
observe and keep the oath yon have TAKEN dilgent.
ly to inquire and true resentment make OF all
crimes and offences against the laws of the United
States given you in charge.
The Canac Railway Accident.
TErnv he H.,fva Ii I,,,vxn re..t