ses, 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 find the party guilty, and leave the rest to the
judge, and that they have nothing to do with the word _felonice_ in the
indictment?

The next point is, to consider it as a question of constitutional
policy: that is, whether the decision of the question of libel ought to
be left to the judges as a presumption of law, rather than to the jury
as matter of popular judgment,--as the malice in the case of murder, the
felony in the case of stealing. If the intent and tendency are not
matters within the province of popular judgment, but legal and technical
conclusions formed upon general principles of law, let us see what they
are. Certainly they are most unfavorable, indeed totally adverse, to the
Constitution of this country.

Here we must have recourse to analogies; for we cannot argue on ruled
cases one way or the other. See the history. The old books, deficient in
general in crown cases, furnish us with little on this head. As to the
crime, in the very early Saxon law I see an offence of this species,
called folk-leasing, made a capital offence, but no very precise
definition of the crime, and no trial at all. See the statute of 3rd
Edward I. cap. 84. The law of libels could not have arrived at a very
early period in this country. It is no wonder that we find no vestige of
any constitution from authority, or of any deductions from legal
science, in our old books and records, upon that subject. The statute of
_Scandalum Magnatum_ is the oldest that I know, and this goes but a
little way in this sort of learning. Libelling is not the crime of an
illiterate people. When they were thought no mean clerks who could read
and write, when he who could read and write was presumptively a person
in holy orders, libels could not be general or dangerous; and scandals
merely _oral_ could _spread_ little and must _perish_ soon. It is
writing, it is printing more emphatically, that imps calumny with those
eagle-wings on which, as the poet says, "immortal slanders fly." By the
press they spread, they last, they leave the sting in the wound.
Printing was not known in England much earlier than the reign of Henry
the Seventh, and