at which they owe their suit and service; and out of this
principle the trial by juries has grown. This principle has not, that I
can find, been contested in any case by any authority whatsoever; but
there is one case in which, without directly contesting the principle,
the whole substance, energy, and virtue of the privilege is taken out
of it,--that is, in the case of a trial by indictment or information for
a 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
cognizance 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 ca