But bad as the tendency of those
writings may be, and unquestionably are, if truly portrayed in the
indictment, I know not how much less danger would result, if, led away
by our feelings, we bend the rules and principles of law from expediency,
or the supposed political necessity of convicting the accused. The present
crisis may pass without leaving any dangerous consequences behind it. The
good sense and virtue of the people, and the fear of punishment in
transgressors, will check the progress of these alarming doctrines; but
if we invade the panoply which the law has provided for the protection
of the accused against arbitrary or vindictive judgments, we establish
precedents, the evil consequences of which cannot be calculated. The
criminal intent, then, does not consist in the writing or possession of
a written or printed libel, but in the publishing it. It is not easy to
conceive how the criminal intent of publishing one libel, can be proved
by the having in possession other libels not published, any more than
you would be permitted to prove a man guilty of stealing one horse,
because you might prove that he had a propensity to horse-stealing. But
you would not be allowed to introduce such proof. The _quo animo_ with
which a horse is taken, is as necessary in an indictment for horse
stealing, as for publishing a libel. Now, as I observed before, if the
matter of the pamphlet charged in the first count in the indictment is
libellous, does not the acknowledgment of the traverser that the
sentiment in the several pamphlets coincided with his own, embrace in it
the sentiments in the pamphlets charged in the first count, and of which
evidence has been offered of publication? If so, does not this libel of
itself afford sufficient evidence of malice, without resorting to the
matter of other pamphlets not charged? Then why resort to them? The
traverser was not apprised from this first count, that he was
responsible for any libel or libellous matter, except what was contained
in the libel set out in said count. If you are permitted in order to
prove malice in publishing the libel in the first count, to read to the
jury the libellous matter of other alleged libels, what will be the
consequence? The matter in those other libels may be of a more
aggravated or inflammatory character than in that set out in the first
count. Is it not evident, if such be the case, that the jury may be
influenced to convict the traverser, not by the