malice in
publishing that one. An inference to be drawn from proved facts or
circumstances is something like a corollary drawn from a previously
demonstrated theorem in mathematics.

I wish it was as certain and clear. An inference deduced from a proved
theorem in geometry is unquestionable. Every body will agree to it. An
inference drawn by law from previously proved facts or circumstances,
is doubtful at best. Two discreet judges may and often do disagree in
regard to it. Do we not hear every day, in this court, of the most
wise and able judges--of the venerated Hale himself--admonishing
courts and juries not to lend a willing ear to them; at least against
circumstantial evidence, which is the same thing. How many almost
irresistable cases of inferences drawn from pregnant facts have been
shown, in which time proved the fallacy of such inferences, and that
many an innocent man has been consigned to an ignominious death by
circumstantial or (which is the same thing) inferential evidence, and
still so strong were the facts and circumstances in the very cases
cited by them, (where time proved the innocence of the accused who had
suffered the penalty of the law), that under the same circumstances I
should permit the same evidence to go to the jury--but in the case
before the court those admonitions are well worth considering. We are
asked to admit certain pamphlets said to be of similar libellous
tendency, and proved by the confession of the traverser to coincide
with his opinions, as the one charged in the indictment, and of the
publication of which evidence has been offered to the jury, although
such pamphlets were never out of the possession of the traverser nor
shown to any one, to prove malice in the traverser in the publication
of another pamphlet charged to have been published by him in the first
count in the indictment. I do not distinctly see the legal inference of
malice in having in his possession those unpublished pamphlets. He
could have published them, if this malice was in his heart. Why did he
not? Is it not in evidence that when he permitted one of those pamphlets
to be taken from his counter and read by Mr. King, that he did it
with reluctance, and that he was warned of the danger of bringing
such writings so far South? Is it unreasonable to suppose that he was
deterred by the warning? Taking then the whole evidence together,
although it proved great indiscretion in the traverser, and great guilt
had he