propagated his writings--and that he would have deserved the most
condign punishment had he had the temerity to have published them--yet,
if I am to take the whole of the testimony in the case, I should be
compelled to say, that in withholding the other pamphlets from the
view of others, or of any other, he was influenced by the counsel he
had received, and was afraid to publish them; and that, under the
circumstances in which he permitted the first pamphlet to be taken from
his counter and published, if such permission be a publication, that he
then was aware of the danger he was in, and that under such circumstances
the having in his possession other pamphlets of a similar character, (if
the publication by permitting the pamphlets charged in the first count
to be taken from his counter and read by Mr. King, be not taking the
contents of the pamphlet into view of itself a malicious publication),
it cannot be made so by having other pamphlets of similar tendency in
his possession, which he did not publish nor attempt to publish.

It was contended, among the reasons assigned by the Attorney for the
United States for the admission of those pamphlets in evidence to the
jury, that some three or four of them were endorsed with the words
"read this and circulate," in the handwriting of the traverser, and this
was evidence of malice in the publication of the pamphlet charged in the
first count, and of which evidence of the publication has been offered
to the jury. But this pamphlet last spoken of had also the same words
written on it: whatever evidence of malice may be inferred from these
words, is furnished by the said pamphlet itself, and therefore it is not
necessary to resort to other sources for such evidence. It is true that
a multiplication of the same inscriptions on other pamphlets may, and
do, manifest greater zeal, and more intense interest in the subject
matter of the writings, and indicate an intention on the part of the
writer of such inscriptions to publish them. The malice which the law
denounces is in the publication, not in the writing or composition:
a man may express his thoughts or opinions in writing with impunity,
and is as innocent in the eye of the law (provided he keeps such writings
or compositions locked up from the public eye) as if they were locked up
in his own mind. Is not an indication or manifestation of an intention
to publish certain writings or printed compositions, and the withholding
the