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
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
unfavourable, 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