but there is one case in which, without directly contesting the principle, the whole substance, energy, and virtue of the privilege is taken out of it,—­that is, in the case of a trial by indictment or information for a libel.  The doctrine in that case, laid down by several judges, amounts to this:  that the jury have no competence, where a libel is alleged, except to find the gross corporeal facts of the writing and the publication, together with the identity of the things and persons to which it refers; but that the intent and the tendency of the work, in which intent and tendency the whole criminality consists, is the sole and exclusive province of the judge.  Thus having reduced the jury to the cognizance of facts not in themselves presumptively criminal, but actions neutral and indifferent, the whole matter in which the subject has any concern or interest is taken out of the hands of the jury:  and if the jury take more upon themselves, what they so take is contrary to their duty; it is no moral, but a merely natural power,—­the same by which they may do any other improper act, the same by which they may even prejudice themselves with regard to any other part of the issue before them.  Such is the matter, as it now stands in possession of your highest criminal courts, handed down to them from very respectable legal ancestors.  If this can once be established in this case, the application in principle to other cases will be easy, and the practice will run upon a descent, until the progress of an encroaching jurisdiction (for it is in its nature to encroach, when once it has passed its limits) coming to confine the juries, case after case, to the corporeal fact, and to that alone, and excluding the intention of mind, the only source of merit and demerit, of reward or punishment, juries become a dead letter in the Constitution.

For which reason it is high time to take this matter into the consideration of Parliament:  and for that purpose it will be necessary to examine, first, whether there is anything in the peculiar nature of this crime that makes it necessary to exclude the jury from considering the intention in it, more than in others.  So far from it, that I take it to be much less so from the analogy of other criminal cases, where no such restraint is ordinarily put upon them.  The act of homicide is prima facie criminal; the intention is afterwards to appear, for the jury to acquit or condemn.  In burglary do they insist that the jury have nothing to do but to find the taking of goods, and that, if they do, they must necessarily find the party guilty, and leave the rest to the judge, and that they have nothing to do with the word felonice in the indictment?

The next point is, to consider it as a question of constitutional policy:  that is, whether the decision of the question of libel ought to be left to the judges as a presumption of law, rather than to the jury as matter of popular judgment,—­as the malice in the case of murder, the felony in the case of stealing.  If the intent and tendency are not matters within the province of popular judgment, but legal and technical conclusions formed upon general principles of law, let us see what they are.  Certainly they are most unfavorable, indeed totally adverse, to the Constitution of this country.