[on or before 22 Feb. 1808]
Honored & Dear Sir
I return you the papers relative to Philip M. Topham.
I am decidedly of opinion that the discharge under the insolvent laws of New York would not release him from the penalty recovered by the United States. However as he is now out of prison, the idea you suggested of permitting him to go at large, meets my approbation. after a verdict & judgment for a penalty it becomes a debt, in law, due the United States, & if the question were res integra I should doubt whether the power of pardon extended to the case, & recollect early under the goverment, an instance analogous to the present, in which application was made by a certain Solomon Boston of the Delaware District, to Congress, who granted him releif.
Penal actions of this kind are considered as civil suits. The case I conceive therefore, to be different, from that of a punishment imposed on conviction by indictment. The language of the constitution is, that the President, “shall have powers to grant repreives & pardons for offences against the United States except &c
Under our revenue system Congress have authorised the Secretary of the treasury to remit penalties where there was no intention to defraud. This would have encroached on the constitutional authority of the President, if his powers embraced the case.
Before a penalty is actually recovered by judgment, I conceive a Nolle-Prosequi may be entered at any time, if the circumstance will justify it, in the opinion of the President.
Yours Very Resy & Sincery.
C. A. Rodney
DLC: Papers of Thomas Jefferson.