The Massachusetts spy. [volume] (Boston [Mass.]) 1770-1772, 1771-12-26
TIL u RSDAY, December a6, I771.

he + ALSEL1', MALlNtOOoLI ano SE-
DITIOUStY uttered, sc. Theie words arc
4bfolu,ely cJSmisi TO an indictment OF an IN
formation, and the omiion would be fatal.
Che p,erc patLisng is harmless and mig
pi6csot. And IT is The jfd;tisn, the malice and
faIEiy Of writing, which makes it criminal.
'rhef= matters muR be left 10 the cognizaoec
of Jury, and judges telling Them that they
are only 10 find the jimtAf pHbi!jbing and leave
the quality of the crime 10 them, proceeds on
the fame foundation as this erroneous maxim,
The jury are not judges of law. ! would ak
crown Lawyer, whether it was ever the
cafe, or whether the clerk ever recorded a
verdiH, without putting in tho(e eflentlal
epi,heis To this purpofe ! would BEG leave
TO quote palTage from MIR. Hawles, in his
book, called The EngGlmanS Right. DE
fays, " When the matter in ifIue is Of fuch
nature, as no action, Indictment or inlorms-
ton, will " foi il fggJ, bur is worked up BY
lpecial aggravations into matters Of damage
or crime, as that il was done to jfandaiizs
government, raiis jtdifiss, Sc. or with fucb
an evil intent: If thefe ogg,oVHtisni or Tome
sveyf ACT 10 manifea fuch i'll dehgn be not
made out in evidence, the jury muf find
Ng Gully. If jury ihail refufe to find,
tina, fuch an aa was done m0hfioyiI, E5sJ,
and lfardosnEy, with an intent 20 roiif ied'
f;og, sc, thslf mouths are pot to be AapPed,
or their .esslfifyees Jafi,frd with The Courts
tslli0g then, 1sr 6Gvs nsf0ing 10 DO sO.fb :D0f,
il IS orly rs4tfsy Of form, yeu are en % r%amiae
tbs fetf, ubliber be ipske jaeh suor4s Or svrit
lSeb q kssk, &c. for i they ihould igneronsi
take this for an anfwer. and bring in the pfif
oney Gnilty, though they mean Of the nakf0
faa only, vet the clerk recording il, demands
further confirmation, as thus, 7bea yoE fay
D. IS gmlty sftb, ty1JpaJf and mildtmtanov, ii
MANNE K and FORNa5 bl faa1 in4itf
ed. And the verdict fands thus. The jwors
on tier oatbs Jay, that d. nalieisnf,, taltiy,
in contempt sffbt King and Government, soifb
intent to lcandsEze tie 0dmiajgyahon Of jiyHics
and 10 rGijt J1diiiep, pGth@ed," &c. So that i,
appears theie arc. NOT mere matter, of form,
which is great abFurdty to fupPofe The
Jurors are alked whethet ID. is guilty IN man
nsy and foynl as he is indicted And the YER
diets erroneous ard the record bad unlef il
declares, that D. did publilh maGtiegjJ,f aJf-
y, &c If thele things are 70 ehentisi, both in
the verdia and record, thefe words are no.
ag0ffsr Of Io,m in the Indictment, for the IN
dlamesr is not JEppsrttd without they arc
tysvtd. This the judges give Up, as is sP-
parent from the sppealingt to that wretched
fubterfuge, that they are The judges Of laws,
and wherher the words or writing contain
malice, &c.---Why do they retreat to this
point, which all Lawyers know is eipmed,
when the whole difficulty might &c faved, by
the jGmplk Eaa being rhe only thing caentisi.
No, il Is q point never to be given up by an
EngIi[hman, That The jury are the Ele jndgfi
Of The motive or nature Of aAicns. Even a
Civilian, SchuIting,E1 " An injury ccnflfts
in the Gsjfrf Of dong il, for il an infehf to do
an injury BE- waning il pertaining not TO the
ACTON" It's rule in law, Malice mutt be
collected from cirfamyf0s1s. 1'hefe circum.
frances are mere matter of fsA and nuR be
the |,lk province Of a jury. And IN the cafe
Of Dr.. Brown, Trim. S. Anna b. K. the at-
torney general himfelf confeHes, The defen-
dant ought to prove rhat he did not irftgd TO
fcRndalize, and the jury are judges ghs Snims
this was done. IIth Mod Qpeenvs. Brown.
In Hill 8. Geo. Z. Rote vs.. Bickeuon,
an in6Ormatie6 for . libsl was refsfed, BE-