MR. HAMILTON. I own that, may it please Your Honor, to be so. But, with submission, I understand the word “justify” there to be a justification by plea, as it is in the case upon an indictment for murder or an assault and battery. There the prisoner cannot justify, but pleads “Not guilty.” Yet it will not be denied but he may be, and always is, admitted to give the truth of the fact, or any other matter, in evidence, which goes to his acquittal. As in murder he may prove that it was in defense of his life, his house, etc.; and in assault and battery he may give in evidence that the other party struck first; and in both cases he will be acquitted. In this sense I understand the word “justify” when applied to the case before the Court. MR. CHIEF JUSTICE. I pray, show that you can give the truth of a libel in evidence. [_Here there was a discussion of the point, and Hamilton produced precedents from English law to prove that in the past men accused of libel had been allowed to defend themselves on the ground of the truth of what they wrote._] MR. HAMILTON. How shall it be known whether the words are libelous, that is, _true_ or _false_, but by admitting us to prove them _true_, since Mr. Attorney will not undertake to prove them _false_? Besides, is it not against common sense that a man should be punished in the same degree for a true libel (if any such thing could be) as for a false one? I know it is said that truth makes a libel the more provoking, and therefore the offense is greater, and consequently the judgment should be the heavier. Well, suppose it were so, and let us agree for once that _truth is a greater sin than falsehood_. Yet, as the offenses are not equal, and as the punishment is arbitrary, that is, according as the judges in their discretion shall direct to be inflicted, is it not absolutely necessary that they should know whether the libel is true or false, that they may by that means be able to proportion the punishment? For would it not be a sad case if the judges, for want of a due information, should chance to give as severe a judgment against a man for writing or publishing a lie, as for writing or publishing a truth? And yet this, with submission, as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. Attorney’s doctrine that _truth makes a worse libel than falsehood_, and must follow from his not proving our papers to be _false_, or not suffering us to prove them to be _true_. In the case of Tutchin, which seems to be Mr. Attorney’s chief authority, that case is against him; for Tutchin was, at his trial, put upon showing the truth of his papers; but he did not. At least the prisoner was asked by the king’s counsel whether he would say that they were _true_. And as he never pretended that they were true, the Chief Justice was not to say so.