From Robert R. Livingston
Washington 31st. May 1801.
My line of law reading has for twenty Years past been confined to civil cases arising in the Court of Chancery only. This must be my appology, if in replying to your questions I should be found in the wrong.
In Answer to the first
It is true that many of the whig Lawyers have been of opinion that truth cannot be a libel, & this was strenuously maintained by Lord Camden against Lord Mansfield. But the contrary opinion is certainly supported by the best authorities, & most conformable to the judgments of the courts of criminal jurisdiction in England, and has been accordingly adopted by all the state courts that profess to be governed by the common law of England.
The second question
Opens a wide field for discussion since it brings us back to an inquiry into the common law jurisdiction of the courts of the united States. This has been too often, and too ably handled in your presence to make it proper for me to add any thing upon the subject. The provision however referred to in your question appears to me rather restrictive on the Legislature, than as forming any rule for the government of the executive, & can not I think apply, if the courts have a common law jurisdiction, & conform in their judgments to its principles.
In the third question
I have no doubt that the right vested in the executive to pardon, extends as well to contemps, as to any other offence against the united States, with the exceptions expressed in the Constitution.
Having Sir replied to the questions you have done me the honor to put to me, as far as I was able without the aid of books, or the opportunity of much reflection, I do not know how far I shall conform to your intention when I take the liberty to advise on the expediency of granting the pardon contemplated. But viewing this subject as very important, so far as it relates to you personally, I shd think myself wanting in the duty I owe you, if I did not submit to your better judgment my reflections thereon. I have not seen the libel referred to, but have had some conversation with Mr. Dallas & Mr. Duponceau, as well as with many other gent. at Philadelphia. They all concurred in opinion that the judgment of the court in the original cause was perfectly right, & that the verdict could not have been other than it was. Two of the jury were republicans & Duanes freinds, but had no difficulty in joining in the verdict. The libel on the court was as they informed me gross, & violent, & if some of the expressions were such as I have understood them to be I do not see any ground on which to rest an admission of their truth, upon which alone the claim to a pardon must be predicated. Upon the whole, I found the general sentiment of the republicans that I have conversed with to be unfavourable to Duanes conduct on this occasion, while no charge of any thing oppressive or overbearing was made agt the court. Under these circumstances, Sir, you will judge better than I can, of the path that it will be proper to pursue. The administration is yet new, & the ground delicate. If measures are adopted which will, while they awaken all the acrimony of the Tory party, give them the aid of the Judges & the lawyers without cordialy interesting the republicans in their support, they will afford advantages to your enemies which the prudence, & wisdom of your administration has hitherto deprived them of. Estimating Duanes utility as highly as I do, I feel much reluctance in offering these sentiments, but should feel still more were I not fully satisfied that they will in no other way operate against him than as they may afford you a more acurate view of the subject than you have had the means of obtaining here. I would suggest whether the easiest way of leting down this business would not be, to call upon the Judges, & Mr. Dallas, for a state of facts & the principles of the1 Judgment wth. a view to lay them before the attorney general, whos opinion will serve as a justification with either party for any measure you may think it proper to adopt?
I trust Sir, that these crude & hasty sentiments will meet no other eyes but your own, & if you think proper Mr. Madisons, as I should be unwilling to submit them to any other than those, whose freindship & candour will find an appology for their freedom, & their faults in the motives by which they were dictated.
I have the honor to be Dear Sir with the highest esteem & most respectful attatchment Your Most Obt hum: Servt
Robt R Livingston
RC (DLC); at foot of text: “The president of the U:S:”; endorsed by TJ as received 31 May and so recorded in SJL. Dft (NHi: Robert R. Livingston Papers).
In the House of Lords in 1770, Charles Pratt, baron (later earl) of camden, confronted Lord mansfield, the chief justice of the Court of King’s Bench, with a set of interrogatories on the law of libel. Mansfield, who in recent cases before his court had ruled that only judges, not juries, could determine whether a publication constituted seditious libel, did not respond to Camden’s challenge. Advocacy by Camden, a former chief justice of the Court of Common Pleas who had set John Wilkes at liberty in 1763, helped bring about a revision of British libel law in 1792 (DNB description begins H. C. G. Matthew and Brian Harrison, eds., Oxford Dictionary of National Biography, In Association with The British Academy, From the Earliest Times to the Year 2000, Oxford, 2004, 60 vols. description ends , 13:1308–9; 16:285–7; Vol. 30:620).
1. Livingston here canceled “sentence.”