But the point will be clearer on our side from Fuller’s case.[7] Here you see is a scandalous and infamous charge against the late king; here is a charge no less than high treason, against the men in public trust, for receiving money of the French king, then in actual war with the crown of Great Britain; and yet the Court were far from bearing him down with that star chamber doctrine, to wit, that it was no matter whether what he said was true or false. No, on the contrary, Lord Chief Justice Holt asks Fuller, “Can you make it appear that they are true? Have you any witnesses? You might have had subpoenas for your witnesses against this day. If you take it upon you to write such things as you are charged with, it lies upon you to prove them true, at your peril. If you have any witnesses, I will hear them. How came you to write those books which are not true? If you have any witnesses, produce them. If you can offer any matter to prove what you wrote, let us hear it.” Thus said, and thus did, that great man, Lord Chief Justice Holt, upon a trial of the like kind with ours; and the rule laid down by him in this case is that he who will take upon him to write things, it lies upon him to prove them, at his peril. Now, sir, we have acknowledged the printing and publishing of those papers set forth in the information, and (with the leave of the Court) agreeable to the rule laid down by Chief Justice Holt, we are ready to prove them to be true, at our peril.
MR. CHIEF JUSTICE. Let me see the book.
Here the Court had the case under consideration a considerable time, and everyone was silent.
MR. CHIEF JUSTICE. Mr. Attorney, you have heard what Mr. Hamilton has said, and the cases he has cited, for having his witnesses examined to prove the truth of the several facts contained in the papers set forth in the information. What do you say to it?
MR. ATTORNEY. The law, in my opinion, is very clear. They cannot be admitted to justify a libel, for by the authorities I have already read to the Court it is not the less a libel because it is true. I think I need not trouble the Court over again. The thing seems to be very plain, and I submit it to the Court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court is of the opinion that you ought not to be permitted to prove the facts in the papers. These are the words of the book, “It is far from being a justification of a libel that the contents thereof are true, or that the person upon whom it is made had a bad reputation, since the greater appearance there is of truth in any malicious invective, so much the more provoking it is.”
MR. HAMILTON. These are star chamber cases, and I was in hopes that that practice had been dead with the court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court have delivered their opinion, and we expect that you will use us with good manners. You are not to be permitted to argue against the opinion of the Court.
MR. HAMILTON. With submission, I have seen the practice in very great courts, and never heard it deemed unmannerly to—
MR. CHIEF JUSTICE. After the Court have declared their opinion, it is not good manners to insist upon a point in which you are overruled.