To this Information the Defendant has pleaded Not Guilty, and we are ready to prove it....
Then Mr. Hamilton,[112] who at the Request of some of my Friends, was so kind as to come from Philadelphia to assist me on the Tryal, spoke.
Mr. Hamilton, "May it please your Honour; I am concerned in this Cause on the Part of Mr. Zenger the Defendant. The Information against my Client was sent me, a few days before I left Home, with some Instructions to let me know how far I might rely upon the Truth of those Parts of the Papers set forth in the Information, and which are said to be libellous ... I cannot think it proper for me (without doing Violence to my own Principles) to deny the Publication of a Complaint, which I think is the Right of every free-born Subject to make, when the Matters so published can be supported with Truth; and therefore I'll save Mr. Attorney the Trouble of Examining his Witnesses to that Point; and I do (for my Client) confess, that he both printed and published the two News Papers set forth in the Information, and I hope in so doing he has committed no Crime. ..."
Mr. Attorney, ... "The Case before the Court is, whether Mr. Zenger is guilty of Libelling his Excellency the Governor of New-York, and indeed the whole administration of the Government? Mr. Hamilton has confessed the Printing and Publishing, and I think nothing is plainer, than that the Words in the Information are scandalous, and tend to Sedition, and to disquiet the Minds of the People of this Province. And if such Papers are not Libels, I think it may be said, there can be no such Thing as a Libel."
Mr. Hamilton, "May it please your Honour; I cannot agree with Mr. Attorney: For tho' I freely acknowledge, that there are such Things as Libels, yet I must insist at the same Time, that what my Client is charged with, is not a Libel; and I observed just now, that Mr. Attorney in defining a Libel, made use of the Words scandalous, seditious, and tend to disquiet the People; but (whether with Design or not I will not say) he omitted the Word false."
Mr. Attorney, I think I did not omit the Word false: But it has been said already, that it may be a Libel, notwithstanding it may be true.
Mr. Hamilton, In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this Information now before the Court and Jury, and to which we have pleaded Not Guilty, and by it we are charged with printing and publishing, a certain false, malicious, seditious and scandalous Libel. This Word false must have some Meaning, or else how came it there?...
Mr. Ch. Justice, You cannot be admitted, Mr. Hamilton, to give the Truth of a Libel in Evidence. A Libel is not to be justified; for it is nevertheless a Libel that [i.e. tho'] it is true.
Mr. Hamilton, I am sorry the court has so soon resolved upon that Piece of Law; I expected first to have been heard to that Point. I have not in all my Reading met with an Authority that says, we cannot be admitted to give the Truth in Evidence, upon an Information for a Libel.
Mr. Ch. Justice, The Law is clear, That you cannot justify a Libel....