The bill brought in is for the purpose of asserting and securing a great object in the juridical constitution of this kingdom, which, from a long series of practices and opinions in our judges, has _in one point_, and in one very essential point, deviated from the true principle.
It is the very ancient privilege of the people of England, that they shall be tried, except in the known exceptions, not by judges appointed by the crown, but by their own fellow-subjects, the peers of that county court 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.