e common law of the land. The defendant
is accused of having committed an act in the nature of a nuisance; and
you are to judge whether that act could operate as a nuisance or not. You
are not bound, because pamphlets have been prosecuted as libels time out
of mind, or even because they have been declared libels by the verdicts
of preceding juries to tread in no other path than their steps; and to
find similar, or even the same matter, libels, if you should not think
them criminal or dangerous. If you should be convinced by argument, not
only that the pamphlet before you is not a libel, but that almost all
those political writings, which it has been the habit of certain people,
taking up the cry from their leaders, to call libels, are not merely not
dangerous but beneficial to political society; is it possible to
conceive, that you can be induced to pronounce a verdict of guilty
against the defendant! How can you come to such a conclusion; as that
there should be punishment where there has been no mischief, and where
there could have been none, and if there not only has been no mischief,
but could have been none,--nay, if even there must have been benefit, how
can you lay your hands on your hearts, and say there has been crime?
Suppose a man was indicted for a nuisance in doing that for which a
number of persons had in succession been indicted and convicted, would
that oblige a jury to find a verdict against a person at this day
indicted for the same act, if he should prove to them by evidence, which
their minds could not resist, that what had been complained of as hurtful
to public health and morals was noxious to neither, but salutary to both?
Would you, in such a case, though a thousand preceding juries had, in
their ignorance, pronounced verdicts of guilty, follow their example,
against your full knowledge and internal conscience? To illustrate by a
familiar instance, when hops were first introduced into this country they
were very generally believed to be pernicious. Several persons were I
believe prosecuted and convicted for using them; yet now they are known
not only to be not pernicious, but nutritious; they form a principal
ingredient in the daily beverage of our tables, and are even employed
largely in medicine. Let us now imagine a man prosecuted for the use of
hops or any other drugs upon the ground that they injured health, and
that upon his trial he should fill the box with men of science as
witnesses