keep it
within such limits as _all_, or substantially _all_, the people are
agreed that it may occupy.

This necessity for a criminal intent, to justify conviction, is proved
by the issue which the jury are to try, and the verdict they are to
pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_."
And those are the terms they are required to use in rendering their
verdicts. But it is a plain falsehood to say that a man is "_guilty_,"
unless he have done an act which he knew to be criminal.

This necessity for a criminal intent--in other words, for _guilt_--as a
preliminary to conviction, makes it impossible that a man can be
rightfully convicted for an act that is intrinsically innocent, though
forbidden by the government; because guilt is an intrinsic quality of
actions and motives, and not one that can be imparted to them by
arbitrary legislation. All the efforts of the government, therefore, to
"_make offences by statute_," out of acts that are not criminal by
nature, must necessarily be ineffectual, unless a jury will declare a
man "_guilty_" for an act that is really innocent.

The corruption of judges, in their attempts to uphold the arbitrary
authority of the government, by procuring the conviction of individuals
for acts innocent in themselves, and forbidden only by some tyrannical
statute, and the commission of which therefore indicates no criminal
intent, is very apparent.

To accomplish this object, they have in modern times held it to be
unnecessary that indictments should charge, as by the common law they
were required to do, that an act was done "_wickedly_," "_feloniously_,"
"_with malice aforethought_," or in any other manner that implied a
criminal intent, without which there can be no criminality; but that it
is sufficient to charge simply that it was done "_contrary to the form
of the statute in such case made and provided_." This form of indictment
proceeds plainly upon the assumption that the government is absolute,
and that it has authority to prohibit any act it pleases, however
innocent in its nature the act may be. Judges have been driven to the
alternative of either sanctioning this new form of indictment, (which
they never had any constitutional right to sanction,) or of seeing the
authority of many of the statutes of the government fall to the ground;
because the acts forbidden by the statutes were so plainly innocent in
their nature, that even the government itself had n