From all of which, I hope Mr. Attorney will not think it proper to apply his law cases (to support the cause of his governor) which have only been judged where the king’s safety or honor was concerned.
It will not be denied that a freeholder in the Province of New York has as good a right to the sole and separate use of his lands as a freeholder in England, who has a right to bring an action of trespass against his neighbor for suffering his horse or cow to come and feed upon his land or eat his corn, whether enclosed or not. Yet I believe it would be looked upon as a strange attempt for one man here to bring an action against another whose cattle and horses feed upon his grounds that are not enclosed, or indeed for eating and treading down his corn, if that were not enclosed.
Numberless are the instances of this kind that might be given to show that what is good law at one time and in one place is not so at another time and in another place. So that I think the law seems to expect that in these parts of the world men should take care, by a good fence, to preserve their property from the injury of unruly beasts. And perhaps there may be a good reason why men should take the same care to make an honest and upright conduct a fence and security against the injury of unruly tongues.
MR. ATTORNEY. I don’t know what the gentleman means by comparing cases of freeholders in England with freeholders here. What has this case to do with actions of trespass or men’s fencing their ground? The case before the Court is whether Mr. Zenger is guilty of libeling 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.” If such papers are not libels, I think it may be said that there can be no such thing as a libel.
MR. HAMILTON. May it please Your Honor, I cannot agree with Mr. Attorney. For although 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 that I did not omit the word “false.” But it has been said already that it may be a libel notwithstanding that it may be true.
MR. HAMILTON. In this I must still differ with Mr. Attorney. For I depend upon it that we are to be tried upon this information now before the Court and the jury, and to which we have pleaded “Not guilty.” 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? I hope Mr. Attorney will not say he put it there by chance, and I am of the opinion that his information would not be good without it.
But to show that it is the principal thing which, in my opinion, makes a libel, suppose that the information had been for printing and publishing a certain true libel, would that be the same thing? Or could Mr. Attorney support such an information by any precedent in the English law? No, the falsehood makes the scandal, and both make the libel. And to show the Court that I am in good earnest, and to save the Court’s time and Mr. Attorney’s trouble, I will agree that if he can prove the facts charged upon us to be false, I shall own them to be scandalous, seditious, and a libel. So the work seems now to be pretty much shortened, and Mr. Attorney has now only to prove the words false in order to make us guilty.
MR. ATTORNEY. We have nothing to prove. You have confessed the printing and publishing. But if it were necessary (as I insist it is not), how can we prove a negative? I hope some regard will be had to the authorities that have been produced, and that supposing all the words to be true, yet that will not help them. Chief Justice Holt,[5] in his charge to the jury in the case of Tutchin,[6] made no distinction whether Tutchin’s papers were true or false; and as Chief Justice Holt has made no distinction in that case, so none ought to be made here; nor can it be shown that, in all that case, there was any question made about their being false or true.
MR. HAMILTON. I did expect to hear that a negative cannot be proved. But everybody knows there are many exceptions to that general rule. For if a man is charged with killing another, or stealing his neighbor’s horse, if he is innocent in the one case he may prove the man said to be killed to be really alive, and the horse said to be stolen never to have been out of his master’s stable, etc. And this, I think, is proving a negative.