Monticello Aug. 25. 07.
Yours without date was recieved yesterday. About 3. or 4. days ago Mr. Nelson called on me with a letter from Genl. Lee informing me he was summoned in the case which is the subject of your letter, & expressing his difficulties. I had never had any information of the case, it’s parties or subject, except that I had read in the newspapers some time ago that a prosecution was commenced in Connecticut against a clergyman for either preaching or praying defamation against myself. My opinion to Mr. Nelson was that Genl. Lee could be under no difficulty because he was detained in Richmond by the authority of that court as a witness in Burr’s case, which of course was cause sufficient for not attending another; that I presumed the cause would be continued on account of his absence, which would give me time to endeavor through a friend in Connecticut to have done what might properly be done. I accordingly wrote to Mr. ⟨Gr⟩anger, who is at ⟨ho⟩me, recommending in general an endeavor to have the whole prosecution dropped if it could be done, that if the tenor of my life could not support my character, the verdict of a jury would hardly do it; & that as to punishing a poor devil of a calumniator, the enmity & malignity were too extensive to be stopped in that way: but that at any event the charge against the def. which might relate to the subject of Genl. Lee’s letter must be withdrawn, as those interested in that matter had agreed mutually to endeavor that it should be for ever buried in oblivion, & that the dragging it into a court of justice was harrowing all our feelings. On this ground it rests at present. The papers inclosed in your letter give me the first information of the particular facts charged, of which none give me any concern but the one above alluded to. Time is necessary to have that at least disposed of. You remember that we recieved it from the Attorney general in Burr’s case as a confident opinion that the law had not as yet made any provision for enabling the judge of one district court to have compulsory process served on a witness in another. Any person may serve a subpoena any where, but the attachment to compel attendance or to punish non- attendance must be served by a marshal. It cannot be by the marshal of the district court, because his authority is local & is nothing after crossing the limits of his district. It cannot be by the marshal of the district where the witness lives, because no law has authorised him to obey such a precept, and his attempting it would be false imprisonment & as such liable to action or prosecution. So if a commission issues to take a deposition, and the witnesses do not chuse to attend, they cannot be compelled, for want of authority to issue ⟨o⟩r serve an attachment. Unless therefore they volunteer themselves in the case, the party cannot have their testimony in any way. Whether he deserves their voluntary efforts in this case is not for me to determine. but if they do not attend, the cause will certainly be laid over till the spring term, which will give time to do what is proper. I had not supposed there was a being in human shape such a savage as to have summoned Mr. W. in such a case. On account of the feelings of that family I shall spare nothing to have this article withdrawn. Were it not for them, I would rather the whole should be gone into that the world might judge for themselves & the scoundrel parson recieve his punishment. I think I shall go to Bedford about the 8th. or 9th. of Sep. & shall be absent about a week, which I mention as it may govern the time of our having the pleasure of seeing Mrs. Madison & yourself here. I salute you with affection & respect.
DLC: Papers of James Madison.