To Robert R. Livingston
Washington May 31. 1801.
Our Attorney general being absent, and none of the other members of the administration being professional lawyers, I am obliged to decide for myself in a case of law, which, in whatever way I decide, will make a great deal of noise. in this situation I ask the favor of you as a friend, and as a lawyer still in the habits of law reading, which I have not been for 30. years, to tell me what you think on the following questions arising in the case of Duane, imprisoned for 30. days for a contempt of court in printing matters, not pretended to be untrue, relative to a case depending in court, in which he was1 a party?
1. Have not the Whig lawyers of England always denied that the publication of truth could be either a contempt or a libel?
2. if the printing of truth may be a contempt in England, can it be in the US. the constitution of which inhibits any law abridging the freedom of the press?
3. if it may be a contempt even in the US. may it not be pardoned by the President under the authority to pardon all offences against the US. except in cases of impeachment? if either of these questions be answerable in the affirmative, Duane may be relieved by pardon.2 whether we consider this as an attempt in another form to extinguish the freedom of the press, or as a part of the systematic oppression of republicans & republicanism meditated by our courts, all the lawful powers of the Executive ought to be interposed for the protection of the citizen.
Accept assurances of my affectionate esteem & respect.
RC (NHi: Robert R. Livingston Papers); addressed: “Chancellor Livingston”; endorsed by Livingston. PrC (DLC).
In the Aurora of 20 May, William Duane reacted to a verdict, in a case before the federal circuit court in Philadelphia, that declared he was not an American citizen (see William Barton to TJ, 24 June 1801). The members of the court that brought the verdict against Duane were William Tilghman, the chief judge, Richard Bassett, and William Griffith, all of whom were appointed to the circuit late in John Adams’s term under the Judiciary Act of February 1801. Duane noted what he called “curious occurrences” of the case, such as the irony of “open and uniform adherents of the British government”—“Old Tories”—agreeing “that to be a British subject in America is to be infamous.” He also hinted at impropriety in the process of selecting, or “striking,” the jury in his case: “Struck Juries and Mr. Adams’ Judiciary Law,” he asserted, had produced “very happy exemplifications of the moderation and the kind of justice which republicans are to expect from their adversaries! Moderation in the mouths of the tories, daggers and dungeons in their hearts!” Duane was charged with contempt of court the same day that his comments appeared in the Aurora. The court’s hearing of the matter began on 22 May. The next day Tilghman and Griffith found Duane, who admitted his authorship of the passages, guilty of contempt and sentenced him to 30 days in jail, to begin immediately (Aurora, 20, 21, 25, 26 May 1801; Phillips, “William Duane,” description begins Kim Tousley Phillips, “William Duane, Revolutionary Editor,” Ph.D. diss., University of California, Berkeley, 1968 description ends 126–30; JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:381, 383, 386, 389).
1. TJ here canceled “not.”
2. TJ here canceled “if they be doubtful.”