Alexander Hamilton

by Ron Chernow

  Only a free press could check abuses of executive power, Hamilton asserted. He never mentioned Jefferson directly, but the president’s shadow flickered intermittently over his speech. In describing the need for unvarnished press coverage of elected officials, Hamilton reminded the judges “how often the hypocrite goes from stage to stage of public fame, under false array, and how often when men attained the last objects of their wishes, they change from that which they seemed to be.” In case any auditors missed the allusion, Hamilton added that “men the most zealous reverers of the people’s rights have, when placed on the highest seat of power, become their most deadly oppressors. It becomes therefore necessary to observe the actual conduct of those who are thus raised up.”20

  By spotlighting the issue of intent, Hamilton identified the criteria for libel that still hold sway in America today: that the writing in question must be false, defamatory, and malicious. If a published piece of writing “have a good intent, it ought not to be a libel for it then is an innocent transaction.”21 Hamilton showed how truth and intent were inextricably linked: “Its being a truth is a reason to infer that there was no design to injure another.”22 He conceded, however, that truth alone was not a defense and that libelers could use “the weapon of truth wantonly.”23 And he did not argue that the truth should be conclusive, only that it should be admissible; if a journalist slandered his target accurately but maliciously, then he was still guilty of libel. He noted that the Sedition Act, “branded indeed with epithets the most odious,” contained one redeeming feature: it allowed the alleged libeler to plead both truth and intent before a jury.24 In deciding intent in libel cases, Hamilton also stressed the need for an independent jury instead of a judge appointed by the executive branch, lest the American judiciary revert to the tyranny of the Star Chamber.

  In a ringing summation, Hamilton sounded again like the young firebrand from King’s College days and spoke freely from the heart: “I never did think the truth was a crime. I am glad the day is come in which it is to be decided, for my soul has ever abhorred the thought that a free man dared not speak the truth.”25 The issue of press freedom was all the more important because the spirit of faction, “that mortal poison to our land,” had spread through America. He worried that a certain unnamed party might impose despotism: “To watch the progress of such endeavours is the office of a free press. To give us early alarm and put us on our guard against the encroachments of power. This then is a right of the utmost importance, one for which, instead of yielding it up, we ought rather to spill our blood.”26

  People who heard Hamilton’s speech that day, which distilled so many themes of his varied career, never forgot his spellbinding message or the mood he cast over the hushed courtroom. James Kent slid a hastily scribbled note to a friend: “I never heard him so great.”27 New York merchant John Johnston wrote afterward, “It was indeed a most extraordinary effort of human genius.... [T]here was not, I do believe, a dry eye in court.” Another observer, Thomas P. Grosvenor, confirmed that Hamilton’s speech “drew tears from his eyes and...from every eye of the numerous audience.”28 Chancellor Kent, always an insightful observer of Hamilton’s courtroom prowess, singled out the Croswell speech for his highest encomium.

  I have always considered General Hamilton’s argument in that cause as the greatest forensic effort that he ever made. There was an unusual solemnity and earnestness on the part of General Hamilton in this discussion. He was at times highly impassioned and pathetic. His whole soul was enlisted in the cause and in contending for the rights of the jury and a free press, he considered that he was establishing the surest refuge against oppression.29

  Even Hamilton’s adversary, Attorney General Spencer, lavished praise on Hamilton’s legal powers, calling him “the greatest man this country has produced....In creative power, Hamilton was infinitely [Senator Daniel] Webster’s superior.”30

  Hamilton, ironically, lost the case. Because the four judges were evenly split, with Chief Justice Morgan Lewis opposing him, Croswell could not win a retrial, but neither was he sentenced. As a reward for shielding President Jefferson, Lewis was lionized by Republicans and nominated as the party’s candidate for New York governor six days later. But Hamilton’s arguments in the case prevailed over the long term. In April 1805, the New York legislature passed a new libel law that incorporated the features he had wanted. With this new law in place, the state supreme court granted Harry Croswell a new trial that summer—a belated triumph that Hamilton did not live to see.

  In April 1803, President Jefferson reached the zenith of his popularity with the Louisiana Purchase. For a mere pittance of fifteen million dollars, the United States acquired 828,000 square miles between the Mississippi River and the Rocky Mountains, doubling American territory. Hamilton was ruefully amused that Jefferson, the strict constructionist, committed a breathtaking act of executive power that far exceeded anything contemplated in the Constitution. The land purchase dwarfed Hamilton’s central bank and others measures once so hotly denounced by the man who was now president. After considering a constitutional amendment to sanctify the Louisiana Purchase, Jefferson settled for congressional approval. “The less we say about the constitutional difficulties respecting Louisiana, the better,” he conceded to Madison. To justify his audacity, the president invoked the doctrine of implied powers first articulated and refined by Alexander Hamilton. As John Quincy Adams remarked, the Louisiana Purchase was “an assumption of implied power greater in itself, and more comprehensive in its consequences, than all the assumptions of implied powers in the years of the Washington and Adams administrations.”31 When it suited his convenience, Jefferson set aside his small-government credo with compunction.

  At first, Hamilton had denied that Napoleon would ever sell the territory. “There is not the most remote probability that the ambitious and aggrandizing views of Bonaparte will commute [i.e., exchange] the territory for money,” he observed.32 Hamilton thought the United States should simply seize New Orleans and then negotiate a purchase of the territory with a France bankrupted by war. Perhaps Hamilton was slipping back into the old reveries of military glory that he had nursed under President Adams. Then, envious of Jefferson’s easy windfall, Hamilton belittled the significance of the Louisiana Purchase, contending that any settlement in this vast wilderness “appears too distant and remote to strike the mind of a sober politician with much force.”33

  In the end, Hamilton was one of the few Federalists to support the action, which squared neatly with his nationalistic vision. Swapping roles with Republicans, however, many Federalists emerged as strict constructionists and denied that the Constitution permitted the purchase. Beyond legal reservations, they worried that this new American territory would weaken Federalist power, sealing their doom. The new western terrain would be preponderantly Republican and agricultural, and slavery might flourish there. In fact, every state that entered the Union between 1803 and 1845 as a result of the purchase turned out to be a slave state, further tipping the political balance toward the south. Fearful of being overshadowed by an expanding Republican slave empire in the west, some New England Federalists began to talk of secession from the union. Such plans formed part of the context for the Hamilton-Burr duel. If any such secessionist movement occurred, Hamilton, ever the passionate nation builder, wanted to retain the sterling reputation necessary to counter it with all his might.

  Where Hamilton saw a threat to the Union in the incipient secession movement, Aaron Burr beheld a chance to rehabilitate his flagging political career. As the 1804 presidential election approached, Burr knew that Jefferson would drop him from the Republican ticket. This assumption was reinforced on January 20, 1804, when Governor George Clinton, citing age and ill health, informed Jefferson that he would not run again for New York governor. Jefferson began to muse upon Clinton’s strengths as a running mate—not least among them that he was too old to pose any competitive threat to himself and would leave the door open for James Madison to succeed h
im as the next president.

  On January 26, Burr hazarded one last meeting with Jefferson to determine whether he had any future in the national Republican party. Knowing it would be fruitless to ask Jefferson to keep him on as vice president, he abased himself to solicit “a mark of favor” from Jefferson that he could transmit to the world as evidence that he was leaving office with the president’s confidence.34 Mixing flattery with self-pity, Burr complained that the Livingstons and Clintons, abetted by Hamilton, had launched “calumnies” against him in New York and asked Jefferson to help defend his name.35 Jefferson held out no hope of political redemption. In his evasive style, he said that he never meddled with elections and had no plans to do so now. As for press attacks against Burr, Jefferson waved them away blithely, saying that he “had noticed it but as the passing wind.”36 Clearly, as far as Jefferson was concerned, Aaron Burr was persona non grata in the Republican party.

  Burr concluded that his political salvation lay in New York. He would try to exchange places with George Clinton and run for New York governor, backed by a coalition of Federalists and disgruntled Republicans. Hamilton feared that Burr might try to unite New York with New England in a breakaway confederacy, courting Federalist votes in the process. With his talent for subtle suggestions, Burr had already dined with New England Federalist legislators, who had probed his views on the subject. Congressman Roger Griswold of Connecticut said that Burr spoke “in the most bitter terms of the Virginia faction and of the necessity of a union at the northward to resist it. But what the ultimate objects are which he would propose, I do not know.”37 Without committing himself, the inscrutable Burr kept alive hopes that, as New York governor, he might encourage state residents to forge a union with the New England states.

  In essaying a New York comeback, Burr had to contend with two willful opponents: thirty-four-year-old De Witt Clinton, now New York’s handsome, overbearing mayor, and the damaged but still resourceful Hamilton. The resulting political battle was to be brutal even by the savage standards of the day. The American Citizen, Clinton’s mouthpiece, was to play an especially provocative role. To discredit Burr among Republicans, editor James Cheetham disinterred old charges that Burr had colluded with Federalists in the 1801 tie election. He took special pleasure in quoting Hamilton that Burr was a “Catiline” or traitor. This only aggravated tensions between Hamilton and Burr.

  In hindsight, several Burr confidants blamed Cheetham for goading the two men into a duel. The editor “had done everything in his power to set Burr and Hamilton to fighting,” claimed Charles Biddle.38 Indeed, Cheetham exploited every opportunity to bait the two men. On January 6, 1804, he had jeered openly at Hamilton in print: “Yes, sir, I dare assert that you attributed to Aaron Burr one of the most atrocious and unprincipled of crimes. He has not called upon you....Either he is guilty or he is the most mean and despicable bastard in the universe.”39 Cheetham also prodded Burr, asking him if he was “so degraded as to permit even General Hamilton to slander him with impunity?”40 Now an embattled, lonely figure, Burr was as hypersensitive to attacks on his character as Hamilton. If he could not redeem his personal reputation, then he could not salvage his career. So that February he filed a libel suit against Cheetham, one of thirty-eight that the sleazy editor faced in his brief career. Cheetham mischievously responded that he was merely reiterating allegations that Hamilton had made against Burr: “I repeat it. General Hamilton believes him guilty and has said so a thousand times—and will say so and prove him so whenever an opportunity offers.”41 By stoking this animosity, Cheetham was playing a lethal game.

  The Federalists had been so debilitated in New York by the Jeffersonians that they could not even field a viable gubernatorial candidate. It therefore became a question of which Republican or independent candidate to support. Sensing the futility of any Federalist candidacy, Rufus King rebuffed Hamilton’s entreaty that he run. In February, Hamilton and other leading Federalists caucused at the City Tavern in Albany to decide on a Republican candidate to back. (Hamilton was in Albany to deliver his summary remarks in the Croswell case.) Disconcerted by what he saw as a diabolical plot to dismember the union, Hamilton combated Burr with special intensity. In notes prepared for his speech, Hamilton said that Burr was an “adroit, able, and daring” politician and skillful enough to combine unhappy Republicans and wavering Federalists. But Burr, he said, yearned to head a new northern confederacy, and “placed at the head of the state of New York no man would be more likely to succeed.”42

  Aware of Hamilton’s strenuous efforts to stop him, Burr informed his daughter, Theodosia, that “Hamilton is intriguing for any candidate who can have a chance of success against A[aron] B[urr].”43 A few months later, Burr pretended that he had had no idea of the true opinion that Hamilton entertained of his private character and summoned Hamilton to a duel on that basis. Yet on March 1, 1804, the American Citizen reported that Hamilton had criticized Burr for both his public and his private character: “General Hamilton did not oppose Mr. Burr because he was a democrat ...but because HE HAD NO PRINCIPLE, either in morals or in politics. The sum and substance of his language was that no party could trust him. He drew an odious, but yet I think a very just picture of the little Colonel.”44

  In the end, Hamilton endorsed for governor one of his earliest political foes, John Lansing, Jr., whom he had first tangled with as a fellow New York delegate at the Constitutional Convention. Hamilton thought Lansing would be a weak governor who would erode Republican unity. After Lansing declined the nomination, Republicans rallied around Chief Justice Morgan Lewis, who had married into the Livingston clan. This was a terrible blow to Hamilton, who did not think Lewis could win and feared that Federalists would now defect to Burr. “Burr’s prospect has extremely brightened,” he lamented.45 Indeed, on February 18, a caucus of disaffected Republicans nominated Burr for governor. Just as Hamilton foresaw, prominent Federalists, from John Jay to his own brother-in-law Stephen Van Rensselaer, lined up behind Burr. In disgust, Hamilton told Philip Schuyler that he would not get involved in the election, but he was incapable of inaction. He ended up campaigning for Lewis to the point that one Burr lieutenant wrote, “General Hamilton . . . opposed the election of Colonel Burr with an ardor bordering on fanaticism. The press teemed with libels of the most atrocious character.”46

  As groups statewide endorsed Burr—“Burr is the universal, I mean the general, cry,” exclaimed one exuberant observer—Hamilton fell into a despondent state.47 In this mood, he lashed out at any efforts to impugn his character. On February 25, one week after Burr was nominated, Hamilton went to the Albany home of Judge Ebenezer Purdy to confront him with reports that he had revived an old canard: that before the Constitutional Convention Hamilton had secretly plotted with Britain to install a son of George III as an American king in exchange for Canada and other territories. To emphasize the gravity of the visit, Hamilton took along another judge, Nathaniel Pendleton, a Virginia native and later his second in the duel with Burr. With Pendleton taking notes, Purdy refused to disclose the source for his story, admitting only that the man lived in Westchester and had seen the telltale British letter in Hamilton’s office. The source, in fact, was Pierre Van Cortlandt, Jr., who had clerked for Hamilton in the mid-1780s before becoming a Republican politician. More to the point, Van Cortlandt was now the son-in-law of George Clinton.

  Hamilton told Purdy that he was determined to trace the slander. Purdy mentioned that Governor Clinton had a copy of the British letter, and Hamilton decided to contact his old bogeyman. That same day, Clinton was nominated by the Republicans as Jefferson’s running mate for vice president. Hamilton demanded of his longtime foe “a frank and candid explanation of so much of the matter as relates to yourself.”48 Clinton said that a General Macomb had shown him a copy of the letter around the time of the Constitutional Convention. Hamilton insisted that Clinton send him the letter, if he retained it in his files, so that he could hunt down its source. Clinton sent a blunt, unrep
entant reply, saying that he could not find the letter but precisely recollected its contents: “It recommended a government for the United States similar to that of Great Britain.... The [American] House of Lords was to be composed partly of the British hereditary nobility and partly of such of our own citizens as should have most merit in bringing about the measure.”49 Clinton clearly gave credence to this nonsensical fairy tale, and he no longer felt any need to defer to Hamilton, who had lost his power and could now be bullied. In a guarded response, Hamilton expressed hope that if Clinton found the letter, he would hand it over to him. For fifteen years, Hamilton had tried to run down the sources of the lies told about him. The effort had left him weary and dispirited, but he still could not shed the fantasy that, if only he went after slander with sufficient persistence, he could vanquish his detractors once and for all.

  To fathom the full bitterness of Aaron Burr in the spring of 1804, one must dip into the hateful campaign literature spewed forth by his opponents during the gubernatorial race. Few elections in American history have trafficked in such personal defamation. Undeterred by Burr’s libel suit, Cheetham’s American Citizen engaged in ever more reckless sallies against him. Cheetham advised readers that his staff had assembled a list of “upwards of twenty women of ill fame with whom [Burr] has been connected.” Another list in his possession, he said, cited married ladies who were divorced due to Burr’s seductions as well as “chaste and respectable ladies whom he has attemped to seduce.”50 The most infamous Cheetham tale concerned a “nigger ball” that Burr allegedly threw at his Richmond Hill estate to woo free black voters.51 Supervised by his slave Alexis—described by an early Burr biographer as “the black factotum of the establishment”—this party was said to have featured Burr dancing with a voluptuous black woman, whom he then seduced.52 This election coverage set a new low for Cheetham, which is saying something.