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From the FIRGINIA GAZETTE.
JAMES T. CALLENDER.
Henrico County Court, Jan. 3, ISO 3.
Presiding Magistrates.
Daniel Hylton,
Howler Cocke,
William Mayo,
Richard Adams,
Thomas Williamson,
Hezekiah Henley,
William Randolph.
The court of Henrico county met at
12 o’clock, on Monday the 3d January,
when the case of J m-s Thomson Callen
der came before them.
Mr. George Hay rose, and begin his
speech agair.lt Callender, and in vindica
tion of the (lep which had been taken in
binding over Callender and Pace, by ob
serving that the case which now was
brought before the court, was, nor only of
the greateit importance to himfelf, as an
individual, but to the community at large.
Upon thedecifion which they would g've,
depended the fafety or the deftrußion of
character, ft remained for them to de
ciiie, whether the torrent of calumny and
Hinder, which now deluged in a manner,
as well as disgraced the United States,
should he (lopped, or whether it lliouid
be allo wed to H >w with impunity in the
channel ot virulence, carrying with jt,
anti overwhelming all that was moral and
virtuous. He quoted a (entente from go
vernor M‘Kean’s speech, which recom
mended to 'he leg'll v ire of Pennfylvantu
to take into confide.'ution the present un
bounded licentioulnefs of the press. He
said it was advanced ny the counfcl of Mr.
Callender that the tlep which had been
taken wi»t> ri?:>ar.l *» the editors of the Re
corder, was an invasion of the liberty of
the press ; hut he trotted he (liould prove
to the fatisfudlion o( the courr, that* to
proteiß the freedem of the pref>, and not
to lay any check upon it, was both his
zealous desire and nvilt anxious wish He
was actuated upon the present occasion,
by motives mod natural and honorable
to the human mind, the prote&ion.of his
own feelings and those of his family.
Some people he re narked, were such phi
losophers, or could conceal their thoughts
so well, as to bear, with every lVmptom of
indifference, all the attacks which malice
or calumny could attempt against them.
He owned this was not his fi liation, that
he both lelt and was wounded bv the
slanders of the Recorder. That lie was
represented hv the unprincipled editor of
that paper, as a murderer and an ilfitlin.
It pnhliflied to the world that he watched
for eight days fucceilively, an opportuni
ty of depriving Callender of exigence ;
aud it threatened in the future numbers
•
to rip open and tear asunder bo'h his pro
felfional, his public, and his p i - ate cha
racter. So far from tiiis being correct, he
protested his meeting with Callender was
•entirely the effe.R of accident; and that
he was solely regained from punching
hi n as he defer ved, with the apprehen
fi 111 that he (h mi l hive given hi ii a fatal
blow. He argue I that if ever t.ie llatute
under which Gallen ler was bound over,
fllould be arted upon, that there could
be no case more proper than the present.
Callender, Mr. Hay laid, was the moll
unprincipled man in exlftence ; that he
was known to the court, known to the
numerous audience there present, known
in (hort, not only to the city of Rich
mond, but in evev corner of the union
where party prevailed, to be an infamou:
and uotori ms libeller. Tout his whole
plcafure confided, anJ all his days had
been devoted for the foie purpose of de
ilroying the good reputation of those,
againit whom he conceived the fmallert
dilltke. Tilts was well known to the court.
Three vears h i i not elapsed fmee he was
publicly convened bv a jury, of a mod
ilanderous libel. It was frefh in the me
mories moll present, the diliurbance and
difeontent th it - his fame libeher had occa
sioned in Ririmml. Callender had then
verv iiem-iy brought upon the inhabitants
of this town a disgrace that would have
plunged mt 1 niferv, many an inoffenfive
citizen ; lie lu I, in (hurt, excited the in
habitant* to a civil war. What the good
fortune of the country had thru warded
otf, m'gilt vet hippeu, if he were permit
ted to purine without rellraint the aban
doned courfc he was lately following.
Were the court to pronounce the illegali
ty of the co mn tment, Mr. Hay predict
ed, that the veng *Atice of the community
would Goner t>r later overtake the editors
of the Recorder; and that they would
bitterly la nent that their hands hid not
been tied up from com nitting those deeds,
which woolj reminate in their personal
defiruftion. He mule use of that well
kiovn and forcible cxprellion of Cato’s
son.
None, he said, dec! lime I more loudly
abnit tnis fn p.iofed invasion of the liberty
of the orefs than the libeller Callender;
to make that i nore r tm Rill llmnger upon
the onblic, he oi nfelf went to jail, and the
Record*r ci n clad in deep m.in'n
ing— lav that murntng long continue,
said Mr. A *v, an I, nav the * tors of the
Recorder nonra tor ever in sackcloth and
athes for those cri n;s which ttaev have
committed in the malevolence aud wan-
tonnes of their hearts, and for those in
terruptions, which they have occasioned
to th„ domestic happiness of families and
of ir.Uiviuals. Callender’s clamors about
the liberty of the prtfs, he said, reminded
him of the Italian murderer, who after
imbruing his hands in the blood of a
neighbor, iia'd (ought shelter in one of
tb >le fandiooaries which the superstition
of me Roman Catholic religion affords in
ifuth cates, but being dragged forth by the
enraged relations of the dtceafed, he was
tfit- firfl to bawl about the horrible crime of
bterilege, and of the daring audacity of
tinde who had violated by their impure
iteps the (acred (hrine of the altar.
Mr. Hay said, he (houid have preferred
l;a 1 the couulel of Callender confined their
reasoning to the law s of the date of Vir
ginia, without resorting to the precedents
j to ne found in the several courts of Great-
Britain j but fxnce they had gone abroad
in IVarch of law to support their cause, he
would follow them there; and argue the
case upon their own grounds. He then
cited the statute 34th, of Edward the 3d,
which after the lapse of several centuries,
had been again enabled in the Br.iilh par
lianlent. This statute expressly authoriles
all judices of the peace to bind over those
that be not of good fame. The definition
of the expression not of good fame, he
said, admitted of great latitude in inter
pretation, but hr (houid request the atten
tion of t lie court to the opinion of judge
ola< hlfone no this point. Mr. Hay laid,
t ie authority of Blackstone was the highest
bat could be produced. The commen
taries of that learned lawyer, were not only
generally known but every where refpec
fed as the firff-authority in English law.
They were the fir ft book, put into the
hands of every (Indent who intended to
doily tlieproteilian us law, as being both
the plained and founded elements of that
science. Bla kllone, therefore, he said,
might juftv to be received in every court
of this country, wisere difcuifinns of this
kind took p .ce.—The opinion which
Blackstone has given on this point, is as
follows :—Firft, then, the justices are em
iiwered by the statute 34 Edward 111.
C. t. to bind over to the good behavior
towards the king and his people, all them
that be not of good fame, wherever they
be found ;to the intent that the |>eop!e
tie not trou 'ed nor endangered nor the
peace diminished, nor merchants and
others palling. !>v the high ways of the
real n, be disturbed, nor put in the perii
which may happen t*v such offenders.
Under the general words of this expres
sion, that he not of good fame , it is holden
bat a man may be bound to his good
behavior for causes >f I andal, contra bones
••totes a, well as contra paean ; as for haunt
-114 bawdy houtes with women of bad
tame ; or lor keipmg such women in his
*.*’ll house; or lor words lending to
lean f dize the g< verunsni ; or in abule
of;lie officer, of julli e, especially in the
execution o I their office. Thus also a
j iiflicc may bind over all night waikers ;
eaves droppers; such as keep suspicious
company, or are report, d t.i be pilferers
or robbers ; such as lleep in the day, and
wake in the night; common drunkards;
whore mailers; tfie putative f. hers of
bastards ; cheats; idle vagabonds; and
otiier persons, whose mi (behavior may
reafonibly bring them within thr general
words of the statute, as persons not of
good fame : an expression it rnuft be
owned, of fa great a latitude, as 'eaves
much to be det rod ed by the diferetion
of the magistrate himfelf. But, if he com
mits a m n for want of foreties, he mult
exorefs the ctufe thereof with convenient
certainty; and take care th u inch cause
be a good one.” Mr. Hav ovferved, that
from t ie above words of Blackstone, it
was evident that a libeller was a person of
bad fame. He next referred to Hawkin’s
Pleas of the Grown, and to V ner, vol.
13, where it is atfi med that the auth ir of
m 'obfeene book or of ribaldry, although
he cannot be punilhed bv law as a libel
ler, yet he may be bound over as a person
of bad fame. Much more, therefore, ar
gued Mr. Hay, fliould a writer of libels
be obliged to find lecurity for his future
behavior, if the author of an obfeene book
can be committed unless he produce fe
curitv. He quoted also from Bacon’s
Abridgment and from Burn’s juftiee, fen
linients to the fame purpnfe. With re
gard to the latter he observed that Burn
was a very different character from Black
stone, that Burn’s own opinions could
carrv no weight with them, but only in
consequence of those authorities which be
produced in his Juftke —Burn’s lattice,
he said, was a book so little known, that
it was with difficulty he was able to pro
cure a copv in Richmond, but that It ill,
notwitbftandmg, he thought it proper to
cite him in this inttance, as he lias quoted
the fentimints of others on the interpreta
tion that ought to be given to the expnf
i 111 not of good fame. Burn, he remark
'd, always givei ids ow 1 opinion in ex
irefs terms, when he does 10: agree with
m auth >ntv wiiich he cites, and his
iUnce on this muter was a proof that he
»i nfelf e iter lined the fan; sentiments
m the subj ft.
Mr, Hav * xr rciJ a case fni> Fortef
ue, and fro 1 toe freon J edition of toe
100 k k .own by thr name of M >len Re
iorts, that was nearly of the fame nature
with the present. A person who had the
repute of a libeller had been obliged to give
security to keep ;he peace, and upon h:s
afterwards publishing ceriaiii words which
« ere found to be libellous, his recognizance
was forfeited. He thence inferred, tliat
there could not remain the Imaiieft doubt
of the propriety of binding over Calender
and Pace. That they were men of no
torious bad fame. He appealed to thecourt
whether there was one single individual
who could come forward ar .' deny this
assertion. All were silent he said, tiiey
were convinced of the truth of what he
Bated, and they must also be convinced if
Callender was let loose that he would riot
more than ever in the field of calumny.
That the peace of the community would
be broken ; that the society of the ftaie of
Virginia would exhibit a pidure ol wild
disorder, and that th; harmony and do
mestic happiness of private individuals
would be interrupted. Fie ,’clared that
when he before stated that the editors
tiiemfelves would repent if their hands
were not bound up from (lander, he did
not allude to any designs that might be
concerted by him for their dellrudion,
but that it would happen that the general
indignation would be so excited again!!
them, that vengeance would be hurled on
their heads. This, he said, Callender him
felf was fenlible of, and knew it lo well,
that according to his own confelfion, he
was under the neceflity of making a
clxndettine and precipitate retreat into
jail in order to avoid the marks of that'
pubiic contempt which he had fojeltly
incurred. All parties and all men, said
Mr. Hay, however they may differ in their
political sentiments, agree in holding
Callender in abhorrence. They agree in
conlidering him as the vilest of mortals, as
a llandcrer, at the mention of whose name
humanity fiiudders. What charader of
refpedability does he not dare to calum
niate t One he stigmatizes as an alfafiin,
another iie charges as a perjured villain.
Not a single Recorder has appeared which
has not contained lome infamous libel,
for which both Callender and Pace, were
they indited and tried, would fuffer both
one and imprisonment. This is forfooth
the mode of punilhment which their
counfei advise. lam not under the ne
cessity to declare the reasons which have
caused me to adopt the mode of binding
them over in preference to a prosecution
by indictment or civil suit. But for the
fatisfadion of the court I will freely and
candidly confefs my motives. Were 1 to
have prolecuted Callender by either of
these methods, or by both, I (houid dur
ing the period of eighteen months, or per
haps two years, have had all the calumny
and venomous Hander heaped upon me
which the infamous pen of that libeller
could have produced. What fatisfadion
would the fine and imprisonment of Cal
lender at the lapse of two years be to me,
after I had received all the injury and
borne all the abuse which he was capable
of inflicting ? Individuals are not to wait
the tardy and uncertain ilTue of a law suit,
and in the mean time have their character
and every aflion of their life, public and
private, calumniated, perverted and abused.
Were Callender’s pen now s e t loose, I
would be the objtd of his foul and in
veterate rancor for months to come.
This he has declared. I do not speak
from suspicions, but from the words of the
Recorder. He has made no secret of his
intentions ; he has proinifed that he would
expole my condud both public and
private, and to use his own virulent ex
preifion, that he was in poirdfion of
documents the most blasting and damnatory
to njy reputation. These documents bv
Callender’s account, related to a charge of
fupprelfing evidence, of which he has
accused me, and by which ad dodor
Read had fuftaiued the greatest injury. It
happens, however, by the most lingular
coincidence of circumstances, that upon
the very day, the 22d of December, when
Callender was writing this libel on my
charadvr, that dodor Read, the gentleman
whom Callender aflerts became the vidim
of my deceitful condud, was employed m
writing me a letter, reqnefting me to be
come the guardian and inftrudor of his
wife’s so». [Mr. Hay then read dodor
Read’s letter. ] This gentleman, therefore,
who by Callender’s statement, received
the greatest injustice from mv hands,
had fingied me out from among all his ac
quaintances in Richmond, who entertain
the fame sentiments with regard to politics
with himfelf, and they are not a few in
number, in order totakethe fatherly charge
ot this \ oung man ; in order to watch over
him during that period, these four-im
portant years which the letrer mentions,
in which youth are most apt to be milled
and to err from the path of reditude.
Calleuuer’s counfei, the second on mv
left hand, (Mr. Rind) expreiTed his fears,
nav he declared that if the dodrine advan
ced (houid be found to be law, that the
liberty of the press was gone, gone for
e* er. He attempted to intimidate the ma
gistrates, I trait not intentionally, by pic
turing to them in the most dreadful man
ner, the conkquences that would ensue
fro.n preventing the milcreant Callender
from propigating his Hander; he told them
that if a magistrate in the city of London
dared to commit a printer to jail for not
giving security ia a case such as this, that
his house would in a few hours be pulled
about his ears, and that probably his life
would even pay for his temerity. But I
trust were this statement of Mr. Rind’s
even correft, that the court now fitting
would not form their judgement from the
caprice of a London mob. The laws of
England and the decisions of the courts in
that kingdom, are not to be determined
by the whims or theaftions of men heated
by furv, and led on by ignorance.
But the magifiratts of a monarchical
country, and those under a republic are
very differently situated. Those of the
latter have a much greater diferetionary
power allowed them, than those us the for
mer —in a monarchy luch as Britain, ev
ery aftion of the civil magistrate is watch
ed by the people with the eye of suspicion.
They know the government are eager to
lav hold of every opportunity, that may
offer for an usurpation of power, and they
are therefore justly jealous of the most
trifling invasion of their rights. The
smallest deviation from ti e paths of legal
reftitude in an English magifirate is severe
ly puniflied. There occurred an infiance
about thirty years since. I do not precise
ly at this moment recollect the particulars;
but I think damages to the amount of
io,oool, sterling were recovered for the
granting of an illegal warrant by one of
the secretaries of state. In a monarchy
the people ought alwavs to be afrade and
to guard over the conduit of the magistrate
with the watchful eye of jealous suspicion.
In a republic the reverie is the case, there,
the magistrate feels a dread of incurring
the displeasure of the people; there are in
stances certainly to be found where magis
trates ih this country through ignorance
have erred, I have known such instances
myfelf ; although I do not believe in the
state of Virginia a Angle case can be pro
duced.
Here they are timid to an extreme
They never venture upon the most trivial
aft of authority without being firft certain
that they are treading in the pat * of law.
Mr. Foster, the mayor of this city, is a
striking instance of this extreme caution
and timidity of giving offence to the peo
ple. When I applied to him for a war
rant against Callender, although both Mr.
M'Rae & myfelf allured him of the legali
ty of granting it, and explained to him the
law on that head, yet he was not fatisfied ;
he was afraid of exceeding the limits of his
authority. The magistrate who at last
granted it was equally scrupulous at firft,
he read the law over and over until he was
confident he was afting legally. There is
not therefore the smallest danger that any
magistrate in this country will ever exert
his authority beyond the bounds of law
and justice. If there should ever arise
fucli an unfortunate instance, the ven
geance of the community would aflail him, *
and he would fink into eternal disgrace.
Mr. Hay next proceeded to state to the
court the idea which he entertained of the
liberty of the press. This liberty, he said,
consisted in the entire privilege of making
any ftrlftures even of the severest nature,
upon any of the public measures or afts of
administration, or upon the conduft ofanv
of t he public officers or servants of govern
ment. He allowed i hat Callender was at
full liberty to calumniate either him or any
other public officer, so far as related to
their official capacity, with impunity. He
allowed that Callender had the right of
acculyig him of suppressing evidence,
although the circumstance was not true, as
lie was then in a manner afting officially.
He said he hoped this liberty would be
always enjoyed in the fulled extent in this
country. Nor did he ever wish to fee the
day when the fma left check would be
attempted against the freedom of the press
in this refpeft. He hoped public measures
as well as religious opinions would be
allowed a free and fair difeuflios, and that
the oftiical conduft of public men would
always be open to whatever observations
or even undue censure which individuals
might fancy to express. He trusted no
reilraint whatever would be laid upon the
press.. He argued that refiraining the
licenttoufnefsof the press was not reffrain
ing the liberty of the press ; for that no
man had a right to be licentious or to
advance libels upon private charafters.
That it was illegal, and that no person was
authorifed to do an illegal 3ft. He there
fore sincerely hoped thar ihe court would
confirm the decision ofjihe magistrates in
binding over Callender and Pace to the
peace.
As Mr. Hay 'fpoke upwards of three
hours it is not to be expefted that we
could follow him ciofely in every argu
ment which he advanced ; but we flatter
ourselves that we have given the leading
features of his fpeecb, as nearly as could be
expefted. At the conclusion of Mr. Hay’s
speech, the court adjourned until Tuefday
morning.
We shall give a detail of the proceedings
of yesterday in our next.
Late onT'uelday afternoon, the court,
after hearing the arguments of counsel on
both sides, difeharged Meflrs Callender
and Pace ; the binding of beings in
their opinion , an illegal a cl.
| Blank Deeds of Conveyance,
For Sale at this oJp:e.
