rivilege, is taken out of it; that
is, in the case of a trial by indictment or information for libel. The
doctrine in that case laid down by several judges amounts to this, that
the jury have no competence where a libel is alleged, except to find the
gross corporeal facts of the writing and the publication, together with
the identity of the things and persons to which it refers; but that the
intent and the tendency of the work, in which intent and tendency the
whole criminality consists, is the sole and exclusive province of the
judge. Thus having reduced the jury to the cognisance of facts, not in
themselves presumptively criminal, but actions neutral and indifferent
the whole matter, in which the subject has any concern or interest, is
taken out of the hands of the jury: and if the jury take more upon
themselves, what they so take is contrary to their duty; it is no moral,
but a merely natural power; the same, by which they may do any other
improper act, the same, by which they may even prejudice themselves with
regard to any other part of the issue before them. Such is the matter as
it now stands, in possession of your highest criminal courts, handed down
to them from very respectable legal ancestors. If this can once be
established in this case, the application in principle to other cases
will be easy; and the practice will run upon a descent, until the
progress of an encroaching jurisdiction (for it is in its nature to
encroach, when once it has passed its limits) coming to confine the
juries, case after case, to the corporeal fact, and to that alone, and
excluding the intention of mind, the only source of merit and demerit, of
reward or punishment, juries become a dead letter in the constitution.

For which reason it is high time to take this matter into the
consideration of Parliament, and for that purpose it will be necessary to
examine, first, whether there is anything in the peculiar nature of this
crime that makes it necessary to exclude the jury from considering the
intention in it, more than in others. So far from it, that I take it to
be much less so from the analogy of other criminal cases, where no such
restraint is ordinarily put upon them. The act of homicide is _prima
facie_ criminal. The intention is afterwards to appear, for the jury to
acquit or condemn. In burglary do they insist that the jury have nothing
to do but to find the taking of goods, and that, if they do, they must
necessarily fi