To James Madison
July 19. 1801.
Th:J. to mr Madison.
With respect to the prosecutions against Thomas & others for a misdemeanor at Common law we ought to presume the judges will do right, and to give them an opportunity of doing so. the Executive ought not to sit in previous judgment on every case & to say whether it shall or shall not go before the judges. I think therefore this case ought to go on to trial, without interference of the Executive till the judges shall actually have done wrong.
But the prosecution against Duane being under the Sedition law, on which the judges have given repeated decisions, we know we shall have to control them ultimately, & therefore may as well do it at once, to save to all parties the expence & trouble of trial. this prosecution may therefore be absolutely withdrawn.
RC (DLC: Madison Papers); addressed: “Mr. Madison”; endorsed. PrC (DLC). Not recorded in SJL.
On 20 July, Madison wrote Alexander J. Dallas that at “the pleasure of the President” the district attorney “should enter a nolle prosequi upon the indictment” found against duane in the U.S. Circuit Court for his libel against the Senate under the sedition law. Madison continued, however, that other prosecutions against Duane “in any other form or in any other Court” were still in force (Tr in DLC; endorsed by TJ: “Duane’s case. Nolle Prosequi”; Madison, Papers, Sec. of State Ser. description begins J. C. A. Stagg, ed., The Papers of James Madison, Secretary of State Series, Charlottesville, 1986–, 8 vols. description ends , 1:442–3). On 28 July, Dallas endorsed a bill for libel that had been returned against Duane on 18 Oct. 1800: “The United States will no further prosecute this bill” (Gazette of the United States, 3 Sep. 1801).