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, acid virtue
of the privilege, is taken out of it; that is, in the case of a
trial by indictment or information for 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
cognisance 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.
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