quently published by the defendant, or found in his possession
unpublished by him, which would be libels, and might be substantive
subjects of public prosecution, if published.

_Thruston, J._, differed with the majority and delivered the following
opinion:

There are five counts in the indictment charging, in various ways,
the publishing by the traverser of sundry libels with intent to create
sedition and excite insurrection among the slaves and free blacks. The
first count in the indictment charges the publication of a certain
libel, not otherwise described or set out in the count, than by
selecting certain paragraphs in the supposed libellous pamphlet, and
setting them out severally in the count. To this count only and to the
libellous matter charged thereon has any evidence of publication been
given. The Attorney for the United States has moved the court to be
permitted to give in evidence to the jury other printed pamphlets of
the same character and on the same subject, and which the traverser
acknowledged to represent his sentiments, as evidence of malice on
the part of the traverser in the publication of the libel in the first
count; the libel in the first count being one of those which, with the
others now asked to be given in evidence, the traverser acknowledged
contained his sentiments.

That is, that it is competent to prove malice in the publication of one
libel by others found in the possession of the traverser on the same
subject, of which no proof of publication has been offered. The motion
to admit the said alleged libellous pamphlets in evidence has been
supported by no precedent or adjudged case, but from analogies drawn
from proceedings in other cases, and from the expediency or necessity
of punishing the enormous crime of which the defendant stands accused;
enormous, we all admit the crime to be, if substantiated, but which
judges cannot punish but under the rules and principles of law. Enormous
as the offence is, it is questionable whether from public considerations
it is not better that the accused should escape punishment, than that
the law should be perverted to obtain his conviction.

There being no authorities cited to sustain the motion of the Attorney
for the United States, we have no other guide to enlighten and direct
us than the established principles and rules of law in criminal
proceedings. I take it to be well settled, that in indictments for
libels, publication is the gist and esse