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 cases, where no such restraint is ordinarily put upon
them. The act of homicide is prima facie criminal.
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