On The Liberty of The Press in Virginia: From Essay To Bludgeon, 1798-1803

On the Liberty of the Press in Virginia: From Essay to Bludgeon, 1798-1803
Author(s): Steven H. Hochman

Source: The Virginia Magazine of History and Biography, Vol. 84, No. 4 (Oct., 1976), pp. 431-445
Published by: Virginia Historical Society
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ON THE LIBERTY OF THE PRESS
IN VIRGINIA
From Essay to Bludgeon, 1798-I803
by STEVEN
H. HOCHMAN*
THEextent of liberty of the pressin Americaremaineduncertaineven after

the Sedition Act expired on March 3, 1801, and the presidencypassedto
Thomas Jefferson.'Merely becauseJeffersonand the Republicanparty had
opposed the act of 1798, it did not follow that they therefore favored an
unlimitedpress.To be sure, no Republicanever said he opposed liberty of
the press,but then neitherhad any Federalist.The definitionof the concept
was still murky.
While the Republicanshad denied any power in the federalgovernment
to impose restrictionson the press,they had recognizedthat such a power
might be exercisedby the states.Since the Federalistparty maintainedpo-
litical control in a numberof states,they could continueat that level to use
criminalprosecutionsto stifle Republicanopposition.The Republicans,of
course,possessedthe sameoption where they were in control.To determine
how much freedom actually existed,it is necessaryto study the recordsof
the individualstates.2
Early in Jefferson'sadministrationa clear perversionof freedom of the
press by an embittered journalistforced Virginians to re-examinetheir
principles. James Thomson Callender,whom Republicanshad defended
* Mr. Hochman is assistant to Dumas Malone,
biographer-in-residenceat the University of
Virginia.
1 Leonard W.
Levy, Legacy of Suppression:Freedom of Speech and Press in Early American
History (Cambridge, Mass., 1960), pp. 297-307; Dumas Malone, Jefferson the President: First
Termi, 1801-1805 (Boston, 1970), pp. 227-235; Jefferson the President: Second Term, 1805-
1809 (Boston, 1974), pp. 371-391;Merrill D. Peterson, Thomas Jefferson and the New Nation:
A Biography (New York, 1970), pp. 714-718.
2 Even the
exception to this rule, the 1806 libel cases instituted in the United States District
Court in Connecticut, is best understood in the context of state rather than national politics.
Local Republicans prosecuted the cases in the only court they controlled, in order to retaliate
for Federalist-inspiredprosecutions in the state courts there. Republican principles ultimately
triumphed.The cases were dismissed,except for United States v. Hudson and Goodwin, which
went to the Supreme Court as a test case. The decision finally reached in 1813 denied to the
federal courts jurisdiction at common law. Therefore, a common-law crime such as criminal
libel could not be prosecuted (Malone, Jefferson: Second Term, pp. 371-391;Peterson, Jeffer-
son, pp. 716-717).
432 The VirginiaMagazine
from the SeditionAct,3 turnedagainsthis formerparty and embarkedupon

a campaignof characterassassination.One man who tried to stop Callender
had earlierdefended him as counsel. George Hay, known as one of the
foremostadvocatesof a free press,now sought to curb its abuses. His rage
againstCallenderdeterminedhis actions,but it was his attemptto reconcile
thesewith his theoriesthat makesworthwhilean examinationof the conflict
betweenthem, its backgroundand consequences.
It was by a contributionto free-presstheory that George Hay had first
meritednotice.4 In January1799,six monthsafter the Federalist-dominated
Congresspassedthe SeditionAct, Hay, in Virginia, composeda series of
addressesto the presidentand to the people of the United Stateschallenging
its constitutionality.Under the pseudonymHortensius,the serieswas pub-
lishedin the leadingRepublicanpaperin the nation,the PhiladelphiaAurora,
then almostimmediatelywas reprintedin pamphletform as An Essayon the
Libertyof the Press.6Hay, a Richmondlawyer,was a participantin a larger
Virginiacampaignof protest againstthe SeditionAct. In his essay he at-
temptedto expoundthe principlesjust voiced in the resolutionsof the Vir-
ginia GeneralAssemblyand its counterpartin Kentucky.6
First, Hay arguedthat Congresswas "not warranted"by the Constitution
in prescribinga punishmentfor libels, since Congresswas not expressly
grantedsuch a power. This was the fundamentalcontentionof the Republi-
cans, basedon a strict literalinterpretationof the Constitution.The second
part of Hay's argument,that Congresswas "expresslyforbidden"by the
First Amendmentto punish printedlibels, was thereforeimmaterial,as he
subsequentlynoted. "But,"he wrote, "as the 'freedomof the press,' has
never yet been accuratelydefined,and as there is no subjectin which the
8 The authoritativeaccount of this trial and others under the act is in James'Morton Smith,
Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N. Y.,
1956, emended edition 1966).
4 Hay, born December 15, 1765,became an important Virginia political and legal figure, but
there is no adequate account of his life.
5Published in five installments in the Aurora, February 2-11, 1799. An advertisement on
February 13 announced that the pamphlet, An Essay on the Liberty of the Press; Respectfully
Inscribed to the Republican Printers Throughout the United States, would be published the
following day, and be sold for fifteen cents.
e The Virginia Resolutions were adopted December 21-24, 1798,and may be seen in Gaillard
Hunt, editor, Writings of James Madison, VI (New York, 1906), 326-331. The Alien and
Sedition Acts, and the campaign of protest against them, have inspired a considerablebody of
impressive scholarship. An important article is Adrienne Koch and Harry Ammon, "The
Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of
Civil Liberties,"William and Mary Quarterly, 3rd ser., V (1948), 145-176. See also the works
previously cited by Levy, Peterson, and Smith, as well as Malone, Jefferson and the Ordeal
of Liberty (Boston, 1962).
On the Liberty of the Press in Virginia 433
welfare of society is more essentially concerned, my original undertaking

shall be fully performed." 7 It is in this second part of the essay that Hay
presented what Leonard Levy describes as the first publication of "new and
original libertarian doctrines." 8
The Federalist party considered freedom of the press to mean "laying no
previous restraints upon publications." This was the definition given by
William Blackstone in his Commentaries on the Laws of England. "Every
freeman has an undoubted right to lay what sentiments he pleases before the
public," Blackstone wrote, "to forbid this, is to destroy the freedom of the
press: but if he publishes what is improper, mischievous, or illegal, he must
rake the consequences of his own temerity." 9 In fact, the Federalist Congress
maintained that it had advanced beyond Blackstone in the sedition statute by
allowing truth as a defense, for according to the English common law it was
immaterial whether a seditious libel was true or false.10
Hay also thought, but for a different reason, that whether or not a libel
was true did not matter. He argued "that if the words freedom of the press,
have any meaning at all, they mean a total exemption from any law making
any publication whatever criminal." Hay claimed that freedom of the press
must be absolute." However, his definition of "absolute freedom" had a
significant qualification. The press, he wrote, "may do whatever it pleases
to do, uncontrolled by any law, taking care however to do no injury to any
individual. This injury," he said, "can only be by slander or defamation, and
reparation should be made for it in a state of nature as well as in society."
Since he made this qualification, derived almost certainly from his study of
John Locke, he should have explained its application. It would have saved
him from future charges of inconsistency. But he was not bothering with
careful distinctions here. At this point, as a champion of the "sacred cause
of liberty and truth," he was attempting to preserve the spirit of inquiry and
7Essay on the Liberty of the Press, pp. 5, 21. Citations are to the most easily accessible
edition, the Richmond reprint of 1803, which has been reproduced by Da Capo Press, New
York, 1970.
8 Levy, editor, Freedom of the Press frowzZenger to Jefferson: Early American Libertarian
Theories (Indianapolis, 1966), p. 186.
9 London, 1791 edition,
pp. 150-153.
10 Smith, Freedom's
Fetters, pp. 128-129,421-422.
11Essay on the Liberty of the Press,
pp. 23, 26. Leonard Levy argues that until the Republi-
can protest against the Sedition Act in 1798, the Blackstone concept of freedom of the press
was unchallenged in America, and that the new libertarianismof Hay and others represented
a sudden breakthrough. However, James Morton Smith disputes this view, in part, in a new
preface to Freedom's Fetters (1966). He contends that the new legal theory was a gradual de-
velopment out of the Revolution.
discussion,which he believed must be given "absoluteprotection,even in

its excesses."12
Hay later claimed that it was this dedicationto the principleof a free
press that led him to volunteerto defend JamesT. Callenderwhen he was
indictedin Virginiaunderthe SeditionAct in 1800.18In 1793, at the age of
thirty-five, Callender had fled his native Scotland under indictment for
seditiouslibel. Settling in Philadelphiahe took up his pen againstthe Fed-
eralist administration,wielding it with such virulence that the day before
the signingof an Americanseditionact, he fled once againin fear of prose-
cution.14 Ironically,the Federalists,by attemptingto suppressthe Republi-
can pressin the North, assuredCallendera welcome in the South. Virginia,
where the Republicanswere the majority,had possesseda mild press. But
to insurethe maintenanceof the Republicancausethey establishedan effec-
tive partisanprint in December 1798, the Examiner,edited by Meriwether
Jones.'"Callenderbeganwriting for it early the next year. By August local
Federalistshad formed an "association"to run him out of Richmond,but
threatsof counterviolencefrom Republicanscooled this movement. How-
ever, when it came to his indictmentin the FederalDistrict Court for sedi-
tious libel, Virginia Republicansattemptedto defend him by legal means.
The presidingjudge, SamuelChase,did not make this easy. He refused to
allow counselto arguethe constitutionalissuesor even to try to prove that
the allegedlibelswere true. The best that Hay and his fellow lawyerscould
do was to resignfrom the case in protest. On June 3, 1800, Callenderwas
2Essay on the Liberty of the Press, pp. 23, 28, 30. Since Leonard Levy points out that
John Locke's "claim of writing in behalf of 'ABSOLUTE LIBERTY' was overstated and
even unjustifiable,"it is strange that he is not more critical of Hay's definition of absolute
liberty. He calls Hay an "absolutist." To Hay and to Locke, "absolute liberty" did
not imply license. Even in a state of nature none possessed the right to harm another, and
therefore according to Locke, an offender of the law of nature deserved punishment, and
the injured party deserved reparation. Hay only mentioned reparation for injury in his
essay, so Levy does have reason to claim that at this time Hay only believed that injuries could
be redressed civilly by a suit for damages. Yet Locke on this topic was so familiar to the
readers of his essay that Hay might have assumed that they would simply think he was
following Locke on punishmentas well (John Locke, Of Civil Government, Book Two [Lon-
don, 1924 edition], ch. II, sections 6-11; Levy, Legacy, pp. 101, 270-273).
Very likely Hay had not thought the problem through. His Essay is an important historical
document, but it does not actually present either a sound legal argument or a first-rate expo-
sition of libertariantheory. For these see James Madison, The Virginia Report of 1799-1800;
and Tunis Wortman, A Treatise Concerning Political Enquiry, and the Liberty of the Press
(New York, 1800), both in Levy, Freedom of the Press, pp. 197-284.
s3Recorder (Richmond), December 15, 1802; Virginia Gazette (Richmond), January 8,
1803.
14 Charles A.
Jellison, "That Scoundrel Callender,"Virginia Magazine of History and Biog-
raphy, LXVI (1959), 295-298;Smith, Freedom's Fetters, pp. 335-337.
15The Examiner's predecessor, Dixon's Observatory, was moderately partisan.
fined and sentencedto nine months'imprisonment.The "ScotsCorrespond-
ent in the RichmondJail"was not silenced. He continuedto lambastehis
oppressors,perhapswith even more effect duringhis martyrdom.16
Callender,however, did not plan to be a martyrall his life. He expected
a rewardfor his politicalservices,a public office, but it was not forthcom-
ing. The Republicansneglected him, he wrote Jeffersonafter the election,
"becauseI had gone fartherto serve them than some dastardsdurst go to
serve themselves. .. . I have been equally calumniated, pillaged, and be-
trayed by all parties."17
"I am not the man who is either to be oppressedor plunderedwith im-
punity,"CallenderwarnedJamesMadisonon April 27, 1801. His letter re-
vealed a man in a terrible emotionalstate, deep in self-pity and breathing
hostility towardsthose who he believed had abandonedhim. Jeffersonand
the Republicansof Virginia had not actually done so. They still offered
him support,but he perverselyrefusedwhat he felt were crumbs.18
Callenderset out to prove he was not a man who was to be taken lightly.
He did this through the Recorder, a Richmond periodical which was
foundedin October 1801, by Henry Pace, as a weekly "Lady'sand Gentle-
man'sMiscellany." The paper was insipiduntil Pace acquiredhis new as-
sistant,whom he made a partnerearly in 1802. Soon after, the masthead
referenceto gentilitywas dropped.
The Recorder carried little advertising,and left foreign and domestic
news to other papers.It was devoted almost exclusivelyto the humiliation
of Callender'svictims-primarilythe Republicanswith whom he had been
most intimate.Callenderdid not hesitateto attack men at their most vul-
nerablepoints;and therewas no limit to his scurrility.Although his defama-
tions of Jeffersonare best known, he dealt as brutallywith others.Not only
did the Recorderquickly develop one of the largestcirculationsin America
but its storieswere reprintedby the Federalistpress.This was taking place,
it mustbe remembered,in an era and in a state in which personalhonor and
privacywere almostan obsession.19
16Jellison, "ScoundrelCallender,"VMHB, LXVI, 298-300;Smith, Freedom's Fetters,
pp. 338-
358.
17To Madison, January 23, 1801, to Jefferson, February 23, April 12, 1801, New England
Historical and Genealogical Register, LI (1897), 22-25; Malone, Jefferson: First Term, pp.
207-209.
18To Madison,
April 27, 1801, New England Historical and Genealogical Register, LI,
153-155;Examiiner,July 27, 1803. For detailed accounts of Jefferson's relations with Callender
see Malone, Ordeal of Liberty; lefferson: First Tern; and Peterson, Jefferson.
19Exanziner,November 6, 1802; Recorder,
February 2, 1803. It does not seem necessary to
repeat Callender'slibels here.
The Recordercontinuedthroughout1802 to attackwhomeverCallender

wished, and he gloried in his power. On December 15, "Mr. George Hay"
was the headingfor a column.Callenderclaimedhe had never given offense
to Hay, and had even ignored insultsfrom him the previouswinter, attrib-
uting his behaviorto partisanship.But now, he said, Hay had gone too far
by insultinghis partnerPace. Callenderthereforehad sent a gentlemanto
inform Hay that he was to receive "a dressing"in the Recorder. This had
broughtHay to the office.
Callendernoted the detailsof their interview-how Hay had not removed
his gloves to shakehandswith him; how he had accused Hay of writing a
series of letters againsthim in the Examiner(which Hay denied) and of
publicly proclaimingthat Hay defendedhim from the SeditionAct not out
of feeling for a "scoundrel"but for the sake of principle. "I said more,"
Hay had burstout. "I saidthat if your treatmentof some other personshad
been applied to me, YOU SHOULD NOT BE LIVING." When they
parted, Hay had said, "Pursueyour course, and I will pursue mine." It
shouldbe noted that this was takingplace just as Hay was being put forward
for electionto his firstpublicoffice,membershipon the stateprivy council.20
In the next week's Recorder,CallenderdescribedHay's response.
On December 20, according to Callender,he stepped down to Darm-
stadt'sstore to have some Dutch translated.He was attemptingto read to
the bookkeeperwhen "I felt a violent stroke to my forehead."This was
repeatedthree or four times, before he saw his attacker."The cowardly
villain [it was George Hay], camebehindmy back!" Hay intendedto com-
mit murder,Callenderchargedin the Recorderof the 22nd. Only a high
crowned hat protected him from Hay's bludgeon and saved his life. "He
fearsme,"Callendersaid of Hay, becauseof what would be told.
Whatever Callenderplannedto reveal about Hay had to be postponed,
as their conflict moved immediatelyinto a new arena-the courts. Under
the common law, a man who could establishthat he had just cause to fear
physical injury from another, could demand that that person be legally
bound to keep the peace. Callenderused this routineprocedureagainstHay
by appealingto the Richmondmayor, John Foster, who in town possessed
the magisterialpowers of a justice of the peace. Hay, when confrontedby
Foster on December23, offeredto pledge his honor that he would not mo-
lest Callender"unlesshe gave the first attack,"but he learnedwith indig-
nation that he was to be requiredto providesecurity for his recognizance
20
Hay qualified for the Council of Stare on December 24. 1802 (Calendar of Virginia State
Papers, edited by H. W. Flournoy, IX [Richmond, 18901, 340).
like any commonbrawler.Hay determinedthereforethat he would require

the same of Callender.He could not maintainthat a recognizanceto keep
the peace was applicable,since Callenderdid not threatenviolence, but he
could maintainthat the editor fell under a second species of recognizance
requiringgood behavior.This law was somethingof a catchall, but Hay's
interpretationwas uncustomaryin Virginia.21
Hay appliedto Fosterfor a warrantto committhe editorsof the Recorder
to jail unless they gave security that they would publish nothing that re-
flected adverselyon Hay or any citizen of Virginia. Foster said Hay "de-
mandedit. I informedMr. Hay," Foster continued,"thatit was a new case,
and that I had my doubtswhether such a warrantcould legally be granted;
that I musthavetimeto considerthe subject,andobtainthe best legal opinion
I could." Hay read the mayor the act of Assemblyhe relied on and, sup-
ported by AlexanderMacRaeas his lawyer, insistedFoster had the power.
But the mayor decided he needed further advice. Such a proceeding ap-
pearedto be an infringementon the liberty of the press. The three lawyers
he appliedto all counseledhim againstissuingthe warrant. Before he could
refuse Hay, however, he was informedthat a warranthad been obtained
elsewhere.22
Hay had turnedfrom the Federalistmayor to a Republicanmagistrateof
Henrico County, GervasStorrs,who requiredCallenderand Pace to answer
Hay's complaintin the county court the next morning.Servingthe editors
as counsel were William Marshall,state's attorney, and JamesRind. John
Wickham and Alexander MacRae appearedwith Hay. Storrs, William
Price, PleasantYounghusband,and Joseph Selden sat as magistrates.23
AlexanderMacRaeopened the hearingby contendingthat Callenderand
Pace "shouldbe bound over from publishinglibellousmatter,as being per-
21 The
legal system of this era can be understood rather well by referring to three books:
William Waller Hening, The New Virginia Justice, Comprising the Office and Authority of
a Justice of the Peace, in the Conmmonwealthof Virginia (Richmond, 1795); Blackstone's
Conmmentaries; and the current collection of acts of the General Assembly. In 1803 an anno-
tated edition of Blackstone by St. George Tucker, and a new collection of acts printed by
Samuel Pleasantsand Henry Pace were published (4 Blackstone 18, 252-256;Recorder, Decem-
ber 22, 29, 1802; Virginia Gazette, December 29, 1802;January 12, 1803).
22
Ibid.; John Foster to Mr. A. Davis, December 30, 1802, ibid., January 1, 1803.
23 The account of this
proceeding is drawn from two Richmond papers: Virginia Gazette,
December 29, 1802; Virginia Argus, December 29, 1802, reprinted in the Aurora, January 5,
1803. Marshallwas also clerk of the federal Circuit Court and a Federalist. Rind, the son and
brother of newspaper editors, seems to have been a Republican who broke with the party.
Wickham, a Federalist, was probably the most successful lawyer in the state. MacRae, a
Republican, later appeared in the Burr trial of 1807. Storrs and Selden were both on the
Richmond Republican Committee.
sons of bad fame." He said he could prove by the bundleof Recordersin

his hand that Callenderand Pace were men of that description,and that
Callenderin particularhad libeled "almostevery respectableperson in the
state of Virginia."
When the defensepresentedtheir case, they first objectedthat the magis-
trates of Henrico County were not empoweredto take cognizanceof this
questionbetween two citizens of Richmond.The argumentwas answered
by Hay's counsel, and the magistratesruled "thattheir authorityas justices
of Henrico extendedall over the county, althoughthe city court in some
instanceshas concurrentjurisdiction."Rind next contendedthat the char-
acter of bad fame could not apply since both men were industriouslyem-
ployed, and "could not be charged with publishinglibels, as no jury had
found them guilty of that crime."Properly,he said, Hay should prosecute
for defamationand a jury shoulddeterminethe extent of the offense.If the
magistratesbound the editors,they would be acting as judgesof the nature
of publications.Rind charged"thatthe explodedcommon law of England,
which all good democratshad abusedas a system of tyranny . .. was at-
tempted to be used as an engine of oppressionby the very man who had
written an excellent treatise to prove the unconstitutionality of the sedition
law, andin vindicationof the libertyof the press."
Hay repliedby claiminghe was not acting inconsistentlywith the doc-
trines of Hortensius. He said he had never arguedthe right of publishing
privatescandaland destroyingthe peace of privatefamilies.John Wickham
pointed out that Hay himselfhad been compelledby Callenderto give se-
curity without a trial by jury. The object was "preventivejustice." Since
Hay's handswere tied, it was only properthat Callenderand Pace be pre-
vented from printinglies. As for the commentson the common law-this
was not a United Statescourt and the commonlaw certainlywas in effect
in Virginia.He contendedalso that the remedy would be no restrainton a
free press since the editors would still be at liberty to publishwhat they
wished. Their recognizance could not be forfeited unless they published
libelous matterwhich would remainto be determinedby a jury.
The magistratesfound againstCallenderand Pace and requiredeach to
enter into a personal recognizance for $500 and to obtain securities to post
an equal amount.Pace complied,with William Marshalland William Rich-
ardsonas securities.Callenderrefused.The legality of the magistrates'de-
cision was to be reviewed at the regularlymonthly sessionof the county
court on January3. Until that date Callenderwas committedto jail.2
24 The act regarding conservators of the peace passed October 17, 1792 (Acts, p. 94).
Before that sessiontook place, the story of the previoustransactionsex-

ploded in the newspapers. On December 29, a half-sheet,black-bordered
Recorder addressed "the Citizens of the United States . . . From My Old
Quartersin Richmond Jail." In the Virginia Gazette the headline of the
same day proclaimed"The Liberty of the Press Invaded."Callenderdwelt
mostly on his personalsufferings,but the Gazette account presentedthe
largerissuesand a thoroughreportof the hearing. The authorremindedhis
readersof the articleof the VirginiaDeclarationof Rights-"That the free-
dom of the pressis one of the great bulwarksof liberty, and can never be
restrainedbut by despoticgovernments."Identifyingthe magistratesof the
court as "anti-federal"or "democratic,"he wrote that "this decision fur-
nishes,the most decided proof of the real principlesof the present ruling
party, and of those men who are perpetuallybawling about liberty and
republicanism."
In the VirginiaArgus of the same day, George Hay anticipatedand de-
nied this charge in a signed addressto "the People of Virginia."He recog-
nized "the arrest . . . will probably be denounced as a party measure, for
which the republicans generally, are responsible .... This will not be just."
Hay assertedthe action was exclusivelyhis. He also confrontedthe issue of
his personalinconsistency,and stated,as he had in court, that he had never
believedthat freedomof the pressshouldbe used to protect vicious libelers
of personalcharacter.Becausethis case was still before the courts, he post-
poned a fuller explanation.
The Examiner,on January1, 1803, supportedHay's denial of a Repub-
lican persecution.It said the variousstatementswhich had appearedregard-
ing the trial were generallyaccurate,but that the VirginiaGazette had left
out the argumentof John Wickham,the Federalistcounselof Hay, and was
mistakenin claimingthat all the magistrateswere Republicans.According
to the Examiner,Younghusband,who favored the restrictions,was "an
ardentFederalist."The others were Republicans,but one of them, Joseph
Selden,opposedthe surety.
The case naturallyreceived nationalattention,and disapprovalof Hay's
actions was not limited to Federalists.William Duane of the Philadelphia
Aurora, which had published Hortensius,regretted that Hay had taken
notice of Callender."The press had indeed been prostitutedto the basest
purposesby Callender,but we doubt much whether the method taken to
According to the common law as defined in both Hening and Blackstone, the justices of the
county courts also act as enforcement officers (Virginia Argus, January 5, 1803; Henrico
County Order Book, No. 10 [1801-1803], microfilm from the Virginia State Library, 483).
correct the evil will have any other effect than the contraryof what was
intended, and whether the freedom of the press is not much endangered
by it." Hay had draggedbefore the public, thought Duane, a man whose
libelswere beginningto be ignored.26
However, it was more than a coincidence that when Hay returnedto
court on January3, he reachedinto Pennsylvaniafor supportof his actions,
quotingGovernorThomasMcKean'srecent speechin which he had alluded
to the "unparalleled licentiousness"which threatenedto annihilatethe bene-
fits of "the noblestinventionof man"-the printingpress."It is time, then,"
McKean had said, "that the good sense of our fellow citizens, aiding the
authorityof the magistrate,should interposeto rescue us from a tyranny,
by which the wicked, and the obscure,are enabledto prey upon the fame,
the feelings, and the fortunes of every conspicuousmemberof the com-
26
munity."
Hay told the court that some people were "such philosophers,or could
conceal their thoughtsso well, as to bear with every symptomof indiffer-
ence, all the attackswhich malice or calumnycould attemptagainstthem."
He owned this was not his situation,that he both felt and was wounded
by the slandersof the Recorder. Hay includedin his three-hourargument
extensiveremarkson the particularevents that had occurred.Although he
had been called assassin,he said he had met Callenderby accident,that the
supposed "bludgeon"was only his walking stick, and that he would not
have killed Callender,though he did believe him "the most unprincipled
man in existence." If he had simply charged Callender with libel, for
eighteen months to two years he would have had calumny and slander
heapedupon him. What satisfactionwould the fine and imprisonmenthave
been then, he asked. Hay said that in his characteras an officialhe would
be vulnerableto attack,but not as a privateman.27
The next day in the packed courtroom,William Marshallansweredthe
final point. The private charactersof candidatesfor public office were
legitimatesubjects of inquiry, he said, otherwiseunprincipledmen would
25Arora, January 5, 1803. John W. Eppes in a private letter to his father-in-law Thomas
Jefferson reporting events in Richmond also said Callender was sinking into obscurity
(December 23, 1802, University of Virginia).
26 Virginia Gazette,
January 5, 1803; Aurora, December 14, 1802. Pennsylvania Republicans
were seriously divided on the issue of freedom of the press as on many others. McKean at-
tempted to use very similar tactics against Duane who was a bitter critic. The legislature did
not support him, however (Sanford W. Higginbotham, The Keystone in the Democratic
Arch: Pennsylvalia Politics, 1800-1816 [Harrisburg, 1952], pp. 114, 123-125).
January 5, 1803.
be elected.JamesRind agreed.He did not defend Callender'saccuracy,but

arguedhis rightto criticizepublicfigures.
A new set of Henrico justicesof the peace sat on this court. To them all
cases stated as precedentsappearedinapplicableto Virginia and in opposi-
tion to the stateBill of Rights. The proprietyof restrainingthe press,they
believed,was a subjectto be consideredby the legislatureand not by them.
Callenderwas dischargedlateTuesdaythe 4th of January.28
On the next Monday, Hay attemptedto obtain a dischargefrom his re-
cognizance. Before the Court of Hustingsof Richmondhe declared,"I did
what I then thought was proper;what I now think was right; and what I
shall always considerto have been justified."But he was willing to pledge
he would not molestCallenderunlessattacked. Callender,however,testified
that he still dreadeddangerfrom Hay. When Hay asked Callenderif he
dreadeddanger if he did not make the first attack, Callenderdeclined to
answer unless forced. The result was that the court refused to discharge
Hay's recognizance,and he was still bound to keep the peace for twelve
months.29
This was not the end of the incident.Hay suffereda torrent of personal
abuse from Callender,assaultson his principlesfrom the Federalistpress
as a whole, and even a chidingfrom his fellow Republicans.Callenderbegan
a campaignon January12 that appearedin every issueof the Recorderinto
April. He asked his readersto excuse his incoherence,for he was "half
nervelessand half blind" as a result of Hay's attack. A variety of charges
andinnuendoeswere offered.
His first attackrevealedmuch aboutthe natureof his resentmenttowards
Hay, for he askedwho was Hay, and then answeredhis questionby a com-
parisonwith himself.One, he said, was the son of a Scots tobacconist;the
other,Hay, was "the son of a bankruptScots carpenter."Hay and his whole
family had been objects of charity, Callenderemphasized.Besidesthis sub-
ject, Callendertook up two others,first, that Hay suppressedtestimonyin
an officialinvestigationhe conducted,and second, that he was an unethical
gambler,if not a cheat. Attacks on Hay from other newspaperswere also
reprinted.0
28 Ibid.,
January 8, 12, 1803;Henrico County Order Book, 486. The magistrateswere Bowler
Cocke, William Mayo, Richard Adams, and William Randolph-Federalists; and Daniel
Hylton, Hezekiah Henley, and Thomas Williamson-Republicans. There is no statement
that this involved a party vote (Examiner, January 8, 1803).
29
Virginia Gazette, January 12, 1803;Richmond City Hustings Court Order Book, microfilm
from the Virginia State Library. Hay posted bond for $500 and Peter Carr and Alexander
MacRae posted $250 apiece as securities.
30Recorder, January 12-March. At the request of Governor James Monroe, Hay had in-
More significanthistoricallythan Callender'sabuse of Hay was a series

of articleson the liberty of the presssubmittedto the VirginiaGazette.To
a large extent these essays reiteratedthe argumentspresentedin court by
counsel for Callenderand Pace, but on at least two points they seemed to
take new stands.3lIn fact, these essays may have advocatedthe broadest
constructionof freedom of the press that appearedin the early national
period. Their author, commentingthat he had forgotten the substanceof
the 1799 Hortensiusessay, stated that if Hay was accuratelyrestatingits
principles,"I will venture to say they will never more be rememberedby
any man of commonsense,who really valuesthe principlesof free govern-
ment, but to be most cordially execrated."He had always believed that it
was the right of every free man to call into questionthe conduct and char-
acter of candidatesfor office. Furthermore,"I contend, that it is the right
and duty of every man in society, to exposeto public view all the vices and
improperpractices,even of privatemen, that threat or tend in the smallest
degree to injurethat society." The essayisthad moved beyond Republican
theory with that sentence,for the concern of the foundingfathershad been
with threats to liberty from the power of government.This man would
extend the guaranteeof freedomof the press to exposureof dangersfrom
the privatesector.82Again he suggesteda positionbeyond that of the Re-
publicanparty on the significanceof the guaranteeof freedomof the press
in the United StatesConstitution.He pointedout that if the statespossessed
the power to abridgethe liberty of the press,then the first amendmentwas
actually of little value. He believedthat the Constitutionwas the "supreme
law of the land"and questionedwhetherthe federalBill of Rights could be
renderednull by state governments.If it was true that it could be, then in
consistencythey should amendthe Constitutionagainto prohibitthe states
from abridgingthat liberty.8
vestigated a magistrate in Norfolk, Dr. Read, who was accused of surrendering a British
mutineer without first giving him the protection of the laws (Monroe to Hay, April 29, 1800,
Monroe to the speakers of the General Assembly, December 1, 1800,StanislausMurray Hamil-
ton, editor, The Writings of James Monroe, III [New York, 1900], 177-179,228-230). Callender
called Hay a "semi-mendicant protegee of Edmund Randolph," who had taught Hay the
law. Hay seems to have been an active loo player.
81James Rind may have been the author. The arguments are similar to those reported from
him in court. Also he had opposed the Sedition Act (Charles T. Cullen, "St. George Tucker
and Law in Virginia, 1772-1804,"Ph.D. dissertation, University of Virginia, 1971, p. 219).
January 15, 22, 29, 1803.
a3Ibid. It should be noted that Madison had originally wanted freedom of speech guaranteed
from the states as well, but his amendment wording was not accepted. The Republicans as a
whole were too dedicated to states' rights and strict interpretation of the Constitution to
agree.
George Hay had certainly lost his position as championof a free press.
John Taylor of Caroline,a leading Republicanideologist, was quoted in
the press as denying that any law existed to warrantHay's measures,and
that if it did, "the presentlegislatureought never to go home until it should
be repealed."34 Hay withdrewfrom the arenafor a time. Not until August
27 did he againaddressthe people of Virginia.The seriesof articleswhich
appearedthroughOctober 5 in the VirginiaArgus defendedhis actionsand
his consistency. In October, the series and Hay's letter of December 26,
1802, were publishedin pamphletform as An Essay on the Liberty of the
Press,Shewing, That the Requisitionof Security for Good Behaviorfrom
Libellers,Is Perfectly Compatiblewith the Constitutionand Laws of Vir-
ginia. The printer,SamuelPleasants,bound it with a reprintof Hay's 1799
piece.85
In his new essay,Hay statedflatly that freedomof the presswas not un-
limited, and that this was "a truth which must command,and has com-
manded,universalassent.There is not a man in the commonwealthof Vir-
ginia, who has ever venturedeven to suggest,that accordingto the consti-
tution and laws of our country, damagescannotbe recoveredfrom a printer,
for the publicationof a libel, or that such a publicationis not an indictable
offense."If a modernstudent of civil libertiesis correct, Hay himself had
denied that libel was a criminaloffense in his 1799 pamphlet.Nevertheless,
Hay was right in saying that Virginiansstill believed libel to be criminal.
St. George Tucker in an appendixto his 1803 edition of Blackstone'sCom-
mentariespresentedan authoritativeopinion that this was so, and Thomas
Jeffersonin private letters and his second inauguraladdressindicatedthat
prosecutionswould be in order to curb a licentiouspress.86
Becauselibel was a common-lawcrime,Hay said he could not understand
why it would be consideredan invasionof rights to requirea calumniator
to give security as a pledge that he would not violate the law. Certainlyin
the case of other suspectedcrimes,security was in order. He said that his
opponentsat the bar admittedthat after a conviction for libel, security for
good behaviorcould be required."How arbitrary,how monstrousthen is
it to say, that security for good behaviourcannot be requiredbefore con-
84 Virginia Gazette, January 8, 1803.
35 Hortensius was reprinted first in the Examiner, January 15, 19, 22, 29, February 2, 1803,
and Virginia Argus, August 27-October 5, 1803. The first advertisement for the pamphlet ap-
peared October 1, 1803. It should be noted that the reprint of Hortensius and the new essay
were bound together with separate pagination but continuous signatures.
6 Hay, Security,
p. 25; Levy, Legacy of Suppression, p. 273; Tucker, Blackstone, in Levy,
Freedom of the Press, pp. 324-325; and Jefferson, Second Inaugural, ibid., 367-368.
viction, because it is a restraint,but, that after conviction, it may be re-

quired,becauseit is not a restraint,on the freedomof the press."Hay did
not deny that public officersor candidateswere subject to examinationand
that "whateveris true, however degrading,may be stated with impunity."
But he said he would never admitthat they were to be "left entirelyto the
mercy of every miscreant,who writes for a newspaper."s7
Hay's essay met little but silence. Commentingon it in December,"Mar-
ccllus"attributedthe lack of reactionto a generalconvictionthat Hay had
"entirelyfailed of his object."38 Doubtless,Virginianswere awarethat the
journalismof Richmondwas undergoingmajorreformwithout the coercion
of the law. On July 7, JamesCallenderwas found dead in the JamesRiver.
Accordingto the coroner'sinquest,he was bathingin a state of intoxication
and drowned accidentally.But the editor of the Examinersaid Callender
had been threateningfor three weeks to put an end to his life, and con-
jecturedthat he had got himselfexcessivelydrunkfor that expresspurpose.
Whether or not it was conscioussuicide,the man had died in a "paroxism
of frenzy and despair."Without Callender,the Recordersoon expired,and
it was not long until the Examiner,which had lately fallen to Callender's
level, followed.
Not only did the most scurrilousnewspapersdie, but the qualityof jour-
nalism in Richmond rose perceptibly.On May 9, 1804, Thomas Ritchie
founded The Enquirer, a newspaper destined to become in Jefferson's
opinion,"thebestthat is publishedor ever hasbeen publishedin America."9
Ritchie,in August 1806,was remindedof the Callender-Hayepisode.Selleck
Osborne,a Republicanjournalistin Connecticut,was undergoingimprison-
ment ratherthan post a bond similarto that debatedin the complaintagainst
Callender.Ritchie recalledthe earlierincident:
The innumerablecircumstanceswhich combined to favour that motion, made
the advocates of the press tremble for its liberty. No man was more personally
obnoxious,at that moment, than the wretched defendant.Few men were so well
calculated to give due weight to the motion which he advocated as the com-
plainant himself, whose legal acquirementswere entitled to universal respect;
whose celebratedletters of Hortensiushad alreadyraisedhim above the suspicion
37 Hay, Security, pp. 26, 37, 41.
38 Virginia Argus, December 7, 1803. Six Marcellus letters appeared December 7-24, which
were located with the generous assistance of Dr. Helen Cripe at the American Antiquarian
Society. "A Citizen of Halifax" also replied to Hay (Virginia Gazette, November 12, 1803).
s Examiner, July 27, 1803; Thomas Jefferson to William Short, September 8, 1823 (A. A.
Lipscomb and A. E. Bergh, editors, The Writings of ThoomasJefferson, XV [Washington,
1903],468-469).
of entertainingany hostile sentimentstowards the liberty of the press. Among

the most splendid talents of the Richmond Bar were raised on the side of the
prosecution. But the constitution of Virginia and the liberty of the press tri-
umphed over all these considerations....
In spite of the notorioustreacheryof Callender,at that time beginningto burst
forth upon the public view, the republicansof Virginia triumphedin the de-
cision. They regardedit as a sincere tribute of respect paid to our Bill of Rights,
and to the liberty of the press.40
Even more than Ritchie recognized,the dismissalof the complaintagainst

Callendermarkeda watershedfor freedomof the pressin Virginia.For the
rest of the early nationalperiod, prosecutionsthere against journalistsdis-
appeared.While the courts might not have upheld the more extremeliber-
tariantheoriesthat had been advancedby Hay and his critics,they did not
have to because complaints were not brought. All newspapers did not prac-
tice self-restraint,nor did all men attackedby the press satisfy themselves
by public refutation.As George Hay had said,not everyonewas a philoso-
pher. Economic and social pressureswere exerted againstoffendingpapers,
and the final resort for redressof grievanceswas violence, by bludgeon or
pistol. LibertarianVirginia was a place where one would not be fined or
jailed for what one wrote, but one might be killed for it.41
40 The Enquirer (Richmond),

August 8, 1806.
41 In the case of the Commonwealth
of Pennsylvaniav. William Duane, Chief Justice William
Tilghman ruled that though he would not place an absolute prohibition upon the practice,
it was "most agreeable to the spirit of our constitution, and most conducive to the suppression
of libels, to adopt it as a general rule, not to demand surety for good behaviour before con-
viction" (Aurora, August 12, 1806; Higginbotham, Keystone, p. 114). The case of the Corn-
monwealth of Virginia v. John Morris, Jr. was decided in the General Court of Virginia
on June 12, 1811. The decision upheld the right to offer truth as a justification for libel in
the case of public officers or candidates for public office. However, libelous matter which did
not tend to show that a person was unfit for office could not be justified, nor could truth
justify libels of private persons (Judges [William] Brockenbrough and [Hugh] Holmes, A
Collection of Cases Decided by the General Court of Virginia . . . [Philadelphia, 1815], pp.
176-181;see also Norman L. Rosenberg, "The Law of Political Libel and Freedom of the
Press in Nineteenth Century America: An Interpretation,"American Journal of Legal History,
XVII [October 1973], 336-352).

On The Liberty of The Press in Virginia: From Essay To Bludgeon, 1798-1803

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On the Liberty of the Press in Virginia: From Essay to Bludgeon, 1798-1803

Author(s): Steven H. Hochman

THEextent of liberty of the pressin Americaremaineduncertaineven after

from the SeditionAct,3 turnedagainsthis formerparty and embarkedupon

welfare of society is more essentially concerned, my original undertaking

discussion,which he believed must be given "absoluteprotection,even in

The Recordercontinuedthroughout1802 to attackwhomeverCallender

like any commonbrawler.Hay determinedthereforethat he would require

sons of bad fame." He said he could prove by the bundleof Recordersin

Before that sessiontook place, the story of the previoustransactionsex-

be elected.JamesRind agreed.He did not defend Callender'saccuracy,but

More significanthistoricallythan Callender'sabuse of Hay was a series

viction, because it is a restraint,but, that after conviction, it may be re-

of entertainingany hostile sentimentstowards the liberty of the press. Among

Even more than Ritchie recognized,the dismissalof the complaintagainst

40 The Enquirer (Richmond),

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