can be drawn from the circumstances of the publication to rebut that inference". In Rex V. Harvey Mr. Justice Bayley says, "assuming malice to be necessary in all cases to constitute a libel, malice ought to be inferred from the publication of defamatory matter, unless some excuse for the publication be shewn." In the same case Mr. Justice Best says, "malice is the gist of this prosecution. Malice in law relative to libel means legal malice." Whatever your opinion may be as regards the contents of the books; however much you may condemn the filthy and immoral allusions in different parts of this pamphlet, still you would not be justified in finding a verdict of guilty, unless you are clearly of opinion that the manner of the publication and circulation does not rebut the inference of malice. That decision was given in a State prosecution, and meant that if there was an absence of circumstances showing that the defendant was actuated by an honest and conscientious belief that he was promoting the interests of society, it remained for the jury to consider how far the conduct of the defendant was liable to the charge of a criminal intention. That was entirely a matter for their determination, until the passing of Fox's Act, (which had been occasioned by repeated differences between Judges and Juries, and was immediately caused by a dispute between Mr. Erskine and Mr. Justice Buller in the well-known case of Rex V. Dean of St. Asaph) the Jury and Judge pulled in different directions, the Court endeavouring to annihilate altogether the province of the Jury, and Juries often times receiving with disgust and alienation the directions of the Judge, until the Act was passed, which was stated to be declaratory of the law. This Act, the 32 Geo, III, C 50, gave the jury full power to determine the question of libel, and there was afterwards no attempt on the part of the Judges to dictate that question. The Judge was still at liberty to state his opinion as to the question of libel or no libel. He would read extracts from cases to show the extent of freedom of discussion and the liberty of the press. (These extracts were read.) It is the undoubted right of every member of the community to publish his own opinion, on all subjects of public and common interest; and so long as he exercises this inestimable privilege candidly, honestly, and conscientiously, he is not amenable as a criminal. The people have a right to
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