Thomas Jefferson Papers
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To Thomas Jefferson from James Madison, [on or before 17 July 1801]

From James Madison

[on or before 17 July 1801]

The following memoranda, & the inclosed letter from Mr. Dallas will present to the President the state of the information in the Office of State on the subject of the indictmt. under the sedition act agst. Duane, at the request of the Senate. The President will observe, that another prosecution agst. him, at Common law, is pending in this same Court.

16. May. 1800. Mr: Lee’s letter to Mr. Ingersol directing prosecution vs Duane for libel on the Senate, agreeably to Resoln. of Senate
25. March. 1801. Mr. Lincoln’s letter to Mr. Dallas for stay of prosecutions under sedition law, except that vs. Duane requested by Senate
31. March. Mr. Dallas’s answer (inclosed)
9. April Mr. Lincoln’s reply—authorizing him to engage counsel at public expence—is at a loss what direction to give as to the prosecution at common law, for violating Liston’s letters. the President being absent—recommends a continuance of the cause,—which is sd. to have taken place.

Lord Mansfield’s state of the doctrine of Capture & condemnation will be seen p. 692–3–4. of 2 Bur. herewith sent. The act of Congs. Mar. 3. 1800 as to salvage in cases of recaptures, enters into the enquiry. Contrary to the act referred to by Mr. Jefferson. it favors the necessity of condemnation, at least in Sec. 3. concerning alien friends.—In the case of recaptures of the property of citizens, to whom national protection is due the restitution might be construed into an indemnification for witholding the necessary protection.

RC (DLC); undated; endorsed by TJ as received from the State Department on 17 July and “Prosecutions v. Duane & v. Thomas [& al.]” and so recorded in SJL. Enclosure: Levi Lincoln to Alexander J. Dallas, 25 Mch. 1801, instructing Dallas to discontinue all prosecutions under the Sedition Act except that against William Duane (RC in DLC). Other enclosures not found.

Indictmt. under the sedition act agst. duane: see Smith, Freedom’s Fetters description begins James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, Ithaca, N.Y., 1956 description ends , 301–6; TJ to Duane, 23 May.

Prosecution at common law: on 14 Apr. 1800, a federal grand jury returned a bill against Daniel Thomas, Joseph Thomas, George Piper, and William Duane for “misdemeanor in opening and publishing letters of a foreign minister.” British minister Robert Liston’s letters, written to his government on 6 and 23 May 1799, were intercepted and published in the Aurora on 13 and 15 July 1799 (Philadelphia Aurora, 15 Apr. 1800; Smith, Freedom’s Fetters description begins James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, Ithaca, N.Y., 1956 description ends , 301; 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 , 1:131–2n; Vol. 31:151–3, 521–2).

Lord mansfield’s decision of 1758 was reported in Reports of Cases Adjudged in the Court of King’s Bench since the Time of Lord Mansfield’s Coming to Preside in It, compiled by James Burrow (2d. ed., in 5 vols. [London, 1771–80], 2:693); see also TJ to Levi Lincoln, 12 June.

For the law approved by Congress on 3 Mch. 1800, see U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 2:16–18. The act referred to by TJ was that of 9 July 1798 (Memorandum on Restitution of Prizes, 15 July).

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