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IS
n G Hip Xtih isHta - t ? I R V r-U.JuaU-AsY TI H U U C,E W BU T I AW..
,jj.AJ;i Feir u ryi, 1805.
X MOM TUi
'fiiiCa(t of Catltnier HipMeyftrt tft
' Court, of Hihrict Cwnti. .
( Continued from our laft,J
. After the Court met onTuefday
at ten o'clock, -'Jjlr. MarfliaU addrei
fed tfipm a ccunfei for - Meffrs.rCaU
leader au4. Pace He iaid that Mr.
Haj, in the commencement bf hi
fpeech of ryelterday, had Hated twoi
ouejtionsor points of law Miich te
mained tbbe difcuffed. ThefeVere
r-ift. Can editori of newfpapers
be bound to "good behaviour in
confequence pf their publications r
, And, 2d. Wherein the .true espofi-,
tion oftheprefs cbrifrited? But that
MrP Hay had fo fddn departed from
ihd c6nfideration of the firft point,
that it might be laid to have been af
, tefwafds loft in the memory of thofe
prefent, and therefore merited hard
lyany reply from him:
Callender and Pace, he faid, were
raflwi hvMr,Hav men of bad fame;
butj abftrafting on the prefent occa-d
fion the tdea ot the Kecordrtr, wnere
iriy he afked the court, did the bad
feme of Callender and Pace confilt f
' Callender and Pace are not men of
bad fame. 'None of thefea&s which
" cdnfUtute bad 'fame can be; apbed to
th?m. They 'are not loiterers or
gamblers ; they rieither fleep in the
day or prdvrl at niglit ; they employ
temfblves as mduiirous members of
ibciety. Not, a. fmgle allegltion can
Da brought againlt their chara&ers,
independent of the Recorder. Cal
lender is ai citizen of the V. States,
and Itruitjhe is "entitled ; to receive
the1 fame jufticc in this rourt,' or any
other court, to which other "citiz ens
are entitled. With reloctt to the Re-
corder, It is a paperwhicri nas pne
of the largfjft 'citclrdns of any : in
ihe Union., Perhaps there was ne
ver ah iiUtance 6T a; paper. having
luch an ektenfive patronage in a
lhort a period. The iup'cribt-rs to
. the Recorder exceed in ji umber thole
- of.any other paper in Virginia. 'i he
-molt refpedable charaderstn the U.
States receive the Recorder. .. This
t does not appear to me to argue,' that
Callender and Pace are rheri of bad
lame; Wei ought tather to .conclude,
that from, the extenfive circulation
t of the Recorder, and ths reCpcftabir
lity of the fjoienbers to that paper,
ffrat the editors are n?en of good
famei fhis is certainly, a more natu
tal couclufton : But how have the
editors of the Recorder been proved
to be libellers ? The mere, affercioiv
of Mr. Hay diiet not niake' them li-
. bellers. . Cecaufey fome i'elitirtichts
pave appeared in the Recorder which'
have- wounded the feelings: of . Mr.'
Hay does nt hence foflW that? t
CJalleridef and Pace are libellers. '
No maifcan be laid to be a libeller,
uh,lefs' He.hatf beenioup by a jury
iVtftteWp nf his nppi's frt he luch.
iff: iVlarfiiall then faid he would -cpnnV.lSs
arguments in the prefent
cafe to three ppint': lltrrThe pro-"
jjer interpretation of the llarute 34th
Fdward III. ad. The right ot trial
by jury.. . And 3d. The fecurity gi-
ven to' the libertyof t he prefs byjhe
biil orrights. ;'
" The Itatute 34th' of Kdward
Hid. (hA Mr. MarfhaU) was enac
freedom. Itwa'senactea'anneiniti
thoritr ' but the voice' of their com
mander? Licemioufaefsi dilbrder,
and eVety fpeciesf prfligaey; Tljg
be expeaed 1 td'atifeat theldiftruflal
of luctf an aimy, vuhlefs: the laws pf
the iJind impofed Jbme ralutary;re.
jlraint bii (heir;habits5. Thit'$atute
Was therefore enafled, forhe exfefs
purpolje of reAramipg th(Ej?(centiQus
rnahhers of Barbaiian foldiers turned
loofc on foctety. It w,as not framed in
an age luch a the prefent t , nor by
people civilifed as either Britons or
Americans now are. ThS intention
of it was not to reftrain the prefs
thejjrefs at that period was'in a nlan
ner Junknownlt'was ihtendedjo
guard the peaceful and induftrous'
citizen from the violence land ripin
of the ruffian and wan derrfts idler, -I
truft there is not.a'' fihglq jndj vkIu
al who , will cbmD"are th? asie.pf Kd
vVrA th(l IITd. with the orefent. of
the diCJute habits of a Brbat ian-ar-
niy, . only accultomea to apme ana
pillage, riwith the civilizedand do
meftic manners of- the citizens' of
this country., -The RatuU of the ftate
of Virginia cannot therefore bear the
fame interpretation with thaf of the
, . am' W
34th ol i.dward tne aia. even up
on the fuppofition 1 that' it waiintend-
ed to reftrain thd freedom of tSo
prefs, the circumfEancss under which
thele two' (Ututes vvf e enacted being
fo different and difiimilar to each o
ther. But the Jtatute 34th of; Ed
ward the Illd. 1 maintain,; -and hope
will be able to Drove, to the futisfce-
tioa oi this courtr was never inientj
ed to act as a rtitramt upon tlie li
berty of, the prefs, or to give autfio
rity to magiftrates or juflicc tabind
over libellers to keep the peace be
fore conviction, after' a, trial by a ju
ry of twelve of their, peers." . ;
'The belt and, loundelt interpreta
tion of thii itatute, is to be obtained
from oke. l ie wroe in the reign
of Elizabeth, and is therefore the
earlieft lawyer who has given ;an
opTnioh 7 on this iubje& --at. leaft I.
have been able to find no interpre
tation gi v en 0 f i t pr c v i tiw Ui J )r d
Chief judiceCoke. 'i he judgment
and t denti of this man are too well
known. I Vt opinion- have always
been, and probably will ever contin
ue to be, regarded 'as the firft au
thority. rl hev are cltectned as fuch
in the. Englilh courts, and in. the
courts of America. , . His. opihiun,
thrrpnr'f." on the nrober interpre
tation ol tlie Itatute 34th ol Edward.
the 1 lid. - ougnt to carry mucn more
'weigntjwi'.ni uiau iv"vi,
ot latter writers.; Living in an age,
the manners and, habits :of-: which
w'ere riearlyphe fame with thole in
the reign of Edward, the. Hid. lie
was mu"ch better fitted to judge ot
the true fpirit of the. Itatute; and of
thereat' intention of the f ram'ers of
h; thaiitmen living centuries afif:r'
when the modes of life Were fo very ,
diffefehV arid the caides yhich . gave,
rife to it .were unknown or no longer
exilied." .Mr. Marlhall tnen.ieaa
KCoke on; tbelixiterpretation 'ntcn
bogtit iq be given to tiiis jwmc,
which went. to". prove . that libellers
were not included in the defcnption
of thole tharaa'ers' that be not of
rfanVer"ead1hdltfpaflir
ag5 of Blackjtone, whkh have al
ready oeen tramcuueu iuwimv,
uinia Gazette,-from which he con-
his country loaded with the 1 aurejs
of vidofy and at the head or a nu
merous army 0uflied with fuccefs,
and who had been difufed for years'
to the ordinary habits ot life.' In' a
period- fuch s, thajr, : thtfie might
have been a neccflity far fuch a ua
t&re. :Wbat could b expeed m
ah age of barbariim, from troops
who Knew no controul- but that of
iniUtaiy Vdifciplihei; ailf "Wrhb were
ed at a period tne molt munenuiy to "'"rr' V" . M nr c&od
1 -a m Win A rtvir to keeo . the peace.
are: nieh' who arefulpeaed wdl do,
foirie'act that may be a breach ofthe
peace, fuch as affault and battery,
or injury to property. Blackitone,
I Mr Marflull faid), exprelsly dc-
-clares, that no previous "reitramt
can be laid upon tne jiDexiy oinc
prefs, in ahy (hape or manner what
ever:
MrV Malftall rnext' requeftdd the
ittehdoti 'of.thc cowt to the lentif
rhehts which Burn cxpretTed on' tnis
fubjeck." Burn IVTr. JJay had , re
mar jced," bdkht rit to Si advanced
he heldas a writer but olejy
from: the 'fevered , authorities which
were"quoted in his jultice,.;; The cor
rcftneis . of this obfervation, .. Mr.
itii uid.11 Mcmcu-- -jjui ti. .. tic mu, 1
as quoted as authority, by, the firft
iv -11.. :n 1 1 1 a': 1
lawyers liciuiiuucu iiawisans nuu
ieveral other si v Burn's opini ons on
this point ought; thereforei and are
jultly- entitled to the fame Credit, as
Blackitone. - - Me read leyeraJ paua-
cw f rnrti l BHtri. whirhr roniTemned
the laTge iatitu.de tHat."was tometimes
.jl. .i.-:,..i...:....'At it,:. ft.
ruie,: arid from which itaTPeared
IthatBufn's own Ls'iimentj. were, that
libejl.s could . not jbe lupjscted . to
ilie'utliorityolt' . theltatuiiijthot
jLUwaravtne..'Ua'vT - '
. Mr..1Vi:irrijlI nen troceed to the
cohfi deration of the $d. point, t he 1
. j - - ' iit 1
rignt .dt a trial by jury, wmcn ne
mentioned- would be invaded, if the
tlottrine advanced by Mr. Hay Wce
luitamed. ' . -y ' , , - ,
To ;prove this he called the atten
tion of the court to. the . celebrated
cafe of - Mr. Wilkes related in Wil-
fon's Rtborts. Mr. Wilkes it is.well
known, , was arreited ior the publi
ratirn'of nn inlamojS libel calleJ the
kWorth-Briton and another termed ah
Eflay, on Women. 1. Although the
caie was r.of prccifely limllar to the, -prefentv
yet Mr. Marlhall infilled the
araunaciitB of the ludireoh tliat occa-
jfion exprefsly rontradidtcd thedoc
tritc which Mr. Hav and his roun-
felpretefiaed to fupport., ,'J he judge
r,ant upon which Wilkes was arretted
came to be tried, ' declared, that no
mernbef' of the Houfe of Commons
could be atreftedxcept for fome fe
lonious at or a breach of the peace,
that a libel Was no preach of the
peace,' ind that none could be. either
arretted bound over, or even compel
led to give bail lor a libel until alter
Uu i inrr. . Mr. Marflvill
wuvuvii i -
aid, that this cafe mull t herefore be
decifive evidence m favour cr tnote
Opinions lor-which he was now con
tending. v That. the doctfciic, which
Mr. Hay fupported, .was a complete
invafioiv ohthetrial. by jury : and
would aft as the feverelt of.reltraints
npon the liberty, of, the prefs. He
told the cpurt, . there were only two
ways iii which.' libels pould be -pu::
uilhed, ; Thcfc were by indictment
and, inf or mation,ir-Thofer were the
methods to which Mr. IMy ought to
have refot te'd, andrnot to have claim
ed the fupport of the court, in an ad
wfiich was a total . violation of the
rights of juries,' and of. the bill of
rights.' , : ;
1 So zealous were the: citizens ot
Vircinia, faid Mr. Marfiiall, of pre
fer vi ng jherights of j uries, that an
u"cT was made ,b)f the legifla'ureior
veiling tlie ppwe'r of adjudging the
amount oi fines l with; the jury,' and
not with 'the. court," which lay with
the latter previous to the Ri volution.
Were the doftrina ; now. contended,
hf'laj. the necuniarv
'----, - ri ,
,.n;fli-nonf- f lihela WOUlJ Dtf veit-
cd in a lingle magiftratei' and of hat;
evet extent tne nature or jug uuci.
might be,- from the moft trivial to
the moft heinous; the amount of the ,
fat would reniaih' ther fame. ; For
U-' ttKrMinr Litrtohich'the fllS-
peded libeller waf lund, wouia oe,
forfeit however trifling; faliehood;
he raigtiCpropagatewitll regard to
mbre unfair; or unjaft than this, faid?
Mr, lyiannau,, iuppuuuk, v-ut.
and Pace, were to . pubhlhw the. molt
iniignificant exprejhon that would
the feelines of Mr. Hay : a
jury mighi find it HibellouV " burin
Vol. VIII. Npkb 31
Hi Mil 1 1 1 1 1 . ui i Mil wmmttmm
ibly be impofed uport them by the y
iyy tny would compelled to . pa r
the wh6le . amount ot the recognK
. " 1 . .1. ri ' j ,
zance m ;wmcn x-acc was now jpounqic
This - was:, entirely: tTamtming,lth,e .
power pfjuries 'to j)at of magUtrates
& corifequently was an invafion of the
rlghts"tof'juries.. li: MrvHay had otw
ferved. that u the adminiltraiioii of
jultice. was too tardy in the: cale of
libels ; juitJureiy tniswas 110 reaionr
why Mr.. Hay lhould;refort to i illegal
meafuresr ' which - thofejt certainly
wef ea which he now was contending1
for. Mr. Marj(haH laid thatMr. Hay
had not produced.afinglecafe applk
cable, to the prefect queftioni-except
the fohary one from FQrteicue, and
tbatit had never come' to be fairly
ffipd. nor was the coimlzance'ever
i paid; -but fuppofing it hadj and that -
tneijritiinjuiuteor cawaiame uia
even authorifed Ubelleis to.be bound
over, that it could be of noiorcein,
this country as being; totally ,incom-
patable with the bitlof fights, which
iecured to Virgin ians, in the complex
teft manner j the freedom of the
prefs, '"'.'- .' ; :
. , Mr. Marflull alfo read to the'eourt;
Tcveral ' paragraphs from I er Lolme:
I page ac2, on the liberty, or tnc preis;.
to prove that by the jaw-or bnglaid
no previous reftraint could be put
upon the prefs. JIrMarfliall obfef.
ved? that Mr. Hay argued that no re-v
ilraint T ojAldbe laid upon the prefe r
and that its liberty would notin the
final left degree beafiecied although
Cal lender and Pace , were bound o
ver;. for that they were not pretent-;
ed front publilhing" what they pleafed
more than before s that they had no
licenler let Upon their, prefs j :.nor
would gny perfon have the power
of .di'dating' to them, .. what. they,
fliould or w)at they fh'ould nbt pub-:
-lilh --jMr, Matlhali ably expofed the
fophiitry of their reafonin, or jiv
whateyer fliape it could be viewed,,
he provedthatjt would aft a a. re. .
Iratnt.'upon the. Editors pf the Re.
corder. He difagreed f rom Mr. Hay?
in the definition which was given o
the freedom ofthe prefs by him in
H:rtentius. He laid that ..according
to Mr. Hay's definition,- private cha-r
meters were here I; n9r would there ' l,
be an y poflibility of knowing until it,
was too' late," the merits jot 'CandT-.
dates for the feyeral public offices in
the Union, v He faid that it. waa ne
reffxrv for the Drcfervltion of morals
It hat a Icrutiny into prv'ate, charadcr
fhoutd be ajfowedx lor otherwile tne.
molt unprincipled rhea might be e-,
!eftedv to the nioft .itnportatnt trufti
in the ftate. 1 hat by Mr. Hay's der
finiton, their vices could not be e
pofed ifntil it was too late, and whetr
it was'unneceflary. .tie contenqea u
evtr the private conduct or individu
als fhould 'be made rjuWie, u$nt
to be when they are private 'citizens
of 4 the Itate., By this 1 means the;
Rood . the'inoral, and the.religipus
aiid the. unprincipled, and if-would,
not then fo probably ; happen ;, that
worihlefs characters could beeleded,,
which of Mr. Hay's popofition was
agreed to niifeht. frequently, happen.
1 therefore hope . faid Mr. .Marihall, ,
th, court' will fee the fophiftry-aiiA
dangerous; tendency ,of Mr, JHayV
doctrine, and diicharge; the pnfon-
ers, Callender and PaceJ - ; J:
Mr. Rind rofe after Mrv MarfiW
hiA (nheA: anddelivered hitofeff in
ftraWi fif the tnoft.imbreflive lani '
guage which we ever hbard." Altho
flviit mAnvnT tn mire the votdi
of the principal argument which" ne ;
advanced as neatlyL ouLmemory -t
ferves us, yet we can put convey av
Very , faint . idea,, of the . eloquence
which he difplayed on this-moft-im
portantoccaiiori.;
place ofCallender anqVPace paymg
ftrr the verv able retut which
the court" have heard, iri :wfirioa
tothedoarineadvinced r MHaj
i 1
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1. 1
t .