JEFFERSON, Thomas. Autograph letter signed ("Th:Jefferson") TO NEW YORK MAYOR EDWARD LIVINGSTON (1764-1836), Washington, D.C., 1 November 1801. 1 full page, 4to, integral address leaf. [With:] Autograph free frank ("free Th:Jefferson") on address leaf addressed in Jefferson's hand to "Edward Livingston esq. Mayor of New York," with circular "Wash.City" postmark and FREE stamp, recipient's docket, small seal hole. IN VERY FINE CONDITION.
JEFFERSON BOLDLY ASSERTS THE PRESIDENTIAL POWER TO ANNUL THE SEDITION ACT IN THE CASE OF WILLIAM DUANE: "I AFFIRM THAT ACT TO BE NO LAW BECAUSE IN OPPOSITION TO THE CONSTITUTION AND I SHALL TREAT IT AS A NULLITY WHENEVER IT COMES IN THE WAY OF MY FUNCTIONS"
A letter with far-reaching Constitutional and legislative implications, directly concerning perhaps the most celebrated prosecution under the highly controversial Alien & Sedition Acts, that of Philadelphia editor William Duane. Those Acts had been enacted in 1798 by a Federalist Congress ostensibly alarmed over a threatened war with France but also anxious to silence the vociferous opposition press backed by the Jeffersonian Republicans. The Sedition Act of 14 July 1798 had made it a high misdemeanor to "unlawfully combine and conspire" to oppose legal measures of the government, or to obstruct an officer from the discharge of duty, or to contribute to "insurrection, riot, or unlawful assembly." Even more repressive was a provision that publication of any material defamatory to the nation, to Congress or to the President was punishable by a fine and imprisonment of up to two years. The Act was soundly denounced by the Anti-Federalists as unconstitutional. In application, it was used to single out for prosecution Republican editors critical of John Adams and his policies, and a total of 10 individuals, all Republicans, were prosecuted under the Act.
William Duane (1760-1835), an Irish-born journalist, had taken over a Philadelphia paper, the Aurora, on the death of its editor, Benjamin Franklin Bache and under him it became "the most powerful organ of the Jeffersonians." Duane's "genius in controversy...courage and audacity...and his virile style of writing, made him the most effective journalist of his time." Because of his unremitting attacks on President Adams and his administration, he was prosecuted for circulating a petition in the Spring of 1799, and acquitted. In the fall of 1799, Duane was again indicted under the Sedition Act after exposing the so-called Ross Bill, a desperate attempt by the Federalists in Congress to deny Jefferson the Presidency in the election of 1800 by making all elector's votes subject to the scrutiny of a secret committee: "Perhaps [Duane's] most important service to the nation was his exposure of the secret plan of the Federalists to prevent the election of Jefferson. Copies of this measure, then pending in the Senate behind closed doors, were sent him under cover, and its publication...so aroused the public wrath that it was defeated" (DAB). Indignant Federalist Senators, though, summoned Duane to answer charges of the publication of a "false, scandalous and malicious libel of the Senate."
Since Jefferson was Vice-President and presiding officer of the Senate, his dilemma was particularly acute: "How could he preside at the trial of the first Republican editor...On the other hand, how could he refuse to do his duty?" (Peterson, Thomas Jefferson and the New Nation, p.629). Denied counsel by the Senate and insistent on his right to it, Duane refused to appear. The Senate ruled him in contempt and ordered Jefferson to issue a warrant for his arrest. Jefferson complied, Duane went into hiding and the Senate, before adjourning, passed a resolution that the next President should prosecute Duane in the next session.
But before the next session of Congress, Jefferson had become President--in spite of the Federalists energetic efforts--and he ordered the prosecution of Duane dropped. His Federalist opponents promptly termed the nolle prosequi order unconstitutional. On June 12, 1800, two New York Jeffersonians, Denniston and Cheetham, wrote Jefferson to request plausible arguments they might present to the public to justify and defend his order of nolle prosequi in the case.
Rather than reply directly to them, with his justification, Jefferson delicately writes to Edward Livingston, a staunch supporter, now Mayor of New York, to serve as a middleman: "I some days ago received a letter from Mssrs. Denniston & Chetham of the most friendly kind, asking the general grounds on which the Nolle prosequi in Duane's case ought to be presented to the public, which they proposed to do." He emphasizes his need not to be publicly identified with the incident: "You are sensible I must avoid committing myself in that channel of justification, & that were I to do it in this case I might be called on by other printers in other cases where it might be inexpedient to say any thing. Yet to so civil an application I cannot reconcile myself to the incivility of giving no answer. I have thought therefore of laying your friendship under contribution & asking you to take the trouble of seeing them, & of saying to them, that the question being in the line of the law I had desired you to give them the explanation necessary."
Jefferson then lays out his defense: "My text of explanation would be this[:] the President is to have the laws executed. He may order an offense then to be prosecuted. If he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into legal train. I found a prosecution going on against Duane for an offense against the Senate, founded on the Sedition act. I affirm that act to be no law, because in opposition to the Constitution; and I shall treat it as a nullity whenever it comes in the way of my functions. I therefore directed that prosecution to be discontinued & a new one to be commenced founded on whatsoever other law might be in existence against the offense. This was done & the Grand jury finding no other law against it, declined doing any thing under the bill. There appears to me to be no weak part in any of these positions or inferences. There is however in the application to you to trouble yourself with the question. For this I owe apology, & build it on your goodness & friendship. Health & happiness cum caeteris votis..."
The argument here furnished, sub rosa by the President to his supporters, was, as Jefferson no doubt knew, of debatable Constitutional authority. In his annual message to Congress in December, he carefully skirted the issue, showing a real reluctance to publicly espouse "doctrines sure to be controverted and to defend executive actions of doubtful constitutionality, as he knew the Nolle order in the Duane case to be" (Peterson, p.686).