matter of the libel with
which he is charged, but from that of other libels with which he is not
charged? Surely, if malice in the publication of a libel be an inference
of law, that inference must be drawn only from the libel charged and
published, not from other writings which are not libellous because not
published. As I observed before, if the paper charged in the first count
be of itself libellous, the criminal intent of publication is to be
inferred from the confession of the traverser that he approved of the
sentiments contained in it. If such inference can be drawn from such
confession it can as well be sustained from the matter of this libel, as
from that of any number of others, and there is no need to resort to
them for such inference; if the matter of such papers be not libellous,
no number of other libels found in the traverser's possession, however
coinciding with his own opinions, can sustain the libel charged.

Again: if the matter of those pamphlets, which the Attorney for the
United States has moved the court to be permitted to lay before the
jury, be libellous, may not the traverser be hereafter arraigned upon
them if proof shall be had of their publication? This is possible;
almost probable, if his zeal in the cause be so great as has been
attempted to be proved. Then might he not be convicted by their
instrumentality in the present prosecution, and again in a subsequent
prosecution for publishing those very libels? I thought the court had
decided this point in a former opinion in this case, where they said
they could not be evidence if _they were of themselves indictable
writings_.

Again: if the proof of malice in the publication of the charged libel
be not complete, can it be made so by the production of other pamphlets
or libels not published? Is it an inference of law, that having such
libels in the traverser's possession furnishes any proof of malice in
the publication of the charged libel? I question the legal logic of such
an argument. It was almost as easy to publish by distributing fifty
pamphlets as one. Now if but one of fifty was given out, is it not as
probable that he did not desire to publish them, as that he did? Now an
inference from facts, or acts, is matter of law, and I should hesitate
to tell the jury that the traverser having in his possession fifty other
libels, or any lesser or greater number, which he might have published
with the same ease as he published one, is proof of