War of Two : Alexander Hamilton, Aaron Burr and the Duel That Stunned the Nation (9780698193901)

by Sedgwick, John

  Because of their celebrity, Hamilton and Burr took part in virtually all of the major cases of the day, usually in opposition, but sometimes in collaboration. While Burr ceded to his rival the “palm of eloquence,” Hamilton called Burr “a man of honor, influence and ability,” which reveals his reservations. Burr’s bluntness could be more effective. When Hamilton created one of his glorious cathedrals of argument, Burr delighted in kicking out the one essential support to bring the whole thing crashing down. Even when the two men worked together, there was not total unity, understandably enough. For one client they shared, Hamilton insisted on speaking last. Burr acquiesced, but then in his own summary covered all the points Hamilton was likely to make too, leaving his colleague almost nothing to say.

  Hungry for money, Burr became a legal machine that took in the facts of the case on one side and spat out winning arguments on the other. He took everything that came: the client who sued a loyalist for a thousand pounds for enslaving him for five months; the one who sued the thief who stole his female slave for sex; the man who sued to recover a stolen horse; the politician determined to avoid the requirement to swear to uphold the new Constitution. Hating the work, Burr never spoke to Theodosia about his cases with pride, only with impatience. A “laborious piece of business,” he called one, typically. It encouraged a dark, moody, embittered quality in Burr that made him, as he once told his daughter, a “grave, silent, strange sort of animal,” adding, in a mystified third person, “We know not what to make of him.”

  Hamilton rarely paid attention to his fees, viewing his work as above mercenary interests. When a New York merchant sent him advance payment for five years of his services, Hamilton sent it back, with the note, “returned, as being too much.” Burr always charged more than Hamilton, and got it, and kept it. When they both worked the complicated matter of Le Guen v. Gouverneur and Kemble, Burr took twenty-nine hundred dollars, and Hamilton fifteen hundred dollars for comparable effort. Charging the highest legal fees in the city, and handling the more cases, Burr commanded the highest legal income in the city, more than ten thousand dollars a year, significantly more than Hamilton, but he was usually in debt all the same, and that debt would eventually prove ruinous.

  EVEN THOUGH COLONIAL law had derived from the British law that had been developed over centuries, it was retained after the revolution banished the British themselves. Sir William Blackstone’s Commentaries on the Laws of England were as relevant after the peace as they had been before (when, in an oddity, they served as the key to the cipher Benedict Arnold used to communicate with the doomed John André of the British army). British law simply became the law, and all thirteen states carried on with it, just as before. Murder was still murder. But the country’s new statutes that were being enacted by its various legislatures were another matter, and Hamilton had grown increasingly uneasy to see how they had been subverted by patriots bent on revenge against any remaining loyalists. Already distressed to see so many Tories flee the city, taking much of the wealth and talent of the city with them, Hamilton hated to see those who dared to remain be assaulted on street corners, or tarred and feathered, and then further brutalized by new laws condoning the confiscation of their property or canceling their citizenship. To Hamilton, this would not help America’s standing in the world or build a lasting peace.

  As a solitary lawyer and occasional essayist, Hamilton used the only tools he had to rectify matters. He seized on a small, obscure property case, Rutgers v. Waddington, that, to everyone but Hamilton, seemed hopelessly one-sided in favor of Rutgers. That was Elizabeth Rutgers, a well-connected, staunchly patriotic widow who’d fled New York ahead of the British invasion in 1776, abandoning a profitable brewery and alehouse she owned on Maiden Lane (not far, as it happened, from Burr’s house). It stood unused for two years, when a couple of British merchants took over the property at the urging of the British occupational forces, and the merchants appointed Joshua Waddington to restore it as a pub for British troops. By then, thieves had made off with the boilers and much of the piping. But Waddington got the place going again, and, as agreed, paid rent to the British army. When the British evacuated the city with the peace in 1783, some hooligans burned the establishment down to the ground. Insisting she had been the owner the whole time, Elizabeth Rutgers demanded back rent for her property, and the Trespass Act, recently passed by the New York State Assembly, seemed designed to provide it. The law was extremely popular in the city—except to Tories, of course.

  To see it otherwise was to refight the war from the other side, for it meant taking on patriotic opinion, state law, and commercial interests in the name of Tories who were still regarded as enemies of the state. To all of that, Hamilton was indifferent. Instinctively, he didn’t think new laws should apply to past actions. He was convinced that Joshua Waddington was obeying the existing law when he paid rent to the British military during the war, and he shouldn’t be forced to pay more rent just because the Assembly said so.

  Hamilton had one advantage. The case was to be decided not before a jury, but by a Mayor’s Court that consisted of five aldermen and New York’s bustling new mayor, James Duane, who was part of the vast network of Livingstons—including Hamilton’s early patron, William Livingston—that overspread the city. John Adams thought the mayor had a “sly, surveying eye, a little squint eyed,” but Hamilton saw him more charitably. Orphaned early, Duane had been the ward of Robert Livingston, the future chancellor, raised in Livingston Manor in the Catskills, and then had married Livingston’s daughter, whose fortune had funded his political career and afforded him a fine law library, which Hamilton had already made good use of. Hamilton played on the connection by enlisting two more Livingstons to his legal team—Brockholst Livingston and the genial Morgan Lewis, who’d married a Livingston.

  For her part, Mrs. Rutgers enlisted her well-connected nephew Egbert Benson, the state attorney general, and Hamilton’s friend Troup. Because of the quality of the legal talent, it is a surprise that Burr was not involved, but he didn’t do political cases, and, despite the stakes, typically for him, voiced no opinion on the matter.

  On further reflection, Hamilton decided the Trespass Act was fundamentally flawed. The Assembly had acted as if its laws were supreme, but Hamilton believed there were higher considerations here, like the laws of nations, the laws of war, and, in this instance, the terms of the Treaty of Paris signed by the Continental Congress, the highest representative body of the United States. All of these laws explicitly permitted the appropriation of property in wartime, and Hamilton argued that no state legislature could contravene such laws on its own, or the nation would disintegrate into vast warring fiefdoms, with no common governance. How could a state simply ignore a treaty signed by the Continental Congress? Hamilton asked. If it did, “then the Confederation is a shadow of a shade!” It was a case made for what Hamilton’s friend James Kent called his “impassioned eloquence,” which, once the trial was on, “soared far above all competition.”

  It was a powerful argument, powerfully presented, and the Mayor’s Court sided with Hamilton. Waddington needed to pay back rent to Rutgers only for the period before he started to pay rent to the army. National and international laws did indeed need to take precedence over state ones.* The implication was unavoidable: A strong central government was needed to rein in the renegade states.

  While the case brought Hamilton a major victory, it also delivered political consequences that were not so welcome, as it tagged Hamilton with an identification with royalists that, for a man born offshore, with no natural loyalty to the new nation, and aristocratic tastes besides, was already in play. Unsurprisingly, the case brought Hamilton any number of Tory clients on lucrative property cases, too. Burr, by contrast, took the patriot ones. The cases tipped Hamilton toward the interests of the upper classes, surrendering the workingmen to Burr. It was the beginning of the political divide between them. At first a personal campaign by Hamilton, the ca
se became a cleaving point for the emerging politics of the city and had effects beyond the island, as well. It was, in short, typical Hamilton.

  Although the war was supposed to drive out all things English, plenty remained, creating a constant grinding irritation between patriots and loyalists. Chancellor Robert Livingston wrote to John Jay in Paris, laying out the political landscape in early 1784 and pitting the two sides at two extremes: the Tories with their “avowed attachment to England”; the “violent whigs” bent on banishing them and seizing their property; and a few moderate Whigs in the middle who tried to preach tolerance to both sides. Although his enemies would label him a Tory, Hamilton would have placed himself with the moderate Whigs, along with his father-in-law, Philip Schuyler. His violent Whig opponents were known as “Clintonians” and fronted by the wily New York governor, General George Clinton, whom Hamilton was beginning to abhor. Heavy and slow moving but indestructible, he was the turtle of generals and would be the turtle of politicians too. Notwithstanding his providential marriage into the wealthy Tappan family of upstate Ulster County, Clinton styled himself as the yeoman friend to farmers and the implacable enemy of those land-rich lords of the Hudson to the north, the Livingstons, Rensselaers, and, of course, Schuylers. He’d been the one to push through the Trespass Act, which underlay the Rutgers case, as well as a bill depriving Tories of their right to vote and a chance to hold elective office, and, by one account, he personally ordered Tories “tarred and feathered, carted, whipped, fined, banished, and in short, every kind of cruelty, death not excepted.”

  When Clinton lost the Rutgers case, he demanded redress in the courts and at the ballot box, as he urged voters to back only those candidates who would keep the state free from “judicial tyranny” like that of Mayor Duane, or the legislature would be “nothing but a name.” In October, the Assembly declared Mayor Duane’s ruling in Rutgers “subversive of all law and good order,” and it called on New Yorkers to replace Duane with a mayor who would “govern . . . by the known laws of the land.” Duane was no Tory sympathizer; he’d been evicted from his home by the British in the war. Voters returned him to office, and that was largely the end of Tory hating by default. Two years later, the Assembly reversed its ban on Tory lawyers and its restrictions on Tory citizenship. A year after that, it revoked the Trespass Act altogether.

  The passions that had been aroused by Rutgers were not so easily extinguished, however. They would find their way into the Constitutional Convention and emerge from it too.

  TWENTY

  Children of a Larger Growth

  IF HAMILTON WAS a party man who moonlighted as a lawyer, Burr was a lawyer. If Hamilton’s legal work derived from his ideology, Burr’s ideology derived from his legal work, although the pattern was harder to discern. While Burr took plenty of patriot cases from the Trespass Act, he found numerous clients among the New York elite, especially in lucrative land cases, as the speculation boom was on. He represented the de Peyster family, which owned the largest tract of land on Manhattan; William Malcolm, the wealthy merchant who had acquired Burr to drill his Malcolms; some English clients who had contested property in Maine; the Livingstons; Elias Boudinot, whom Hamilton had known as a teenager in Elizabethtown; and even, later, Thomas Jefferson, for a case involving the speculator Robert Morris.

  The common denominator was money. Burr took clients who could pay, and he preferred the clients who could pay more. Let Hamilton take cases that would remake the world. He would take the ones that would remake his world, making it a little nicer.

  While Burr dismissed wealth as a “paltry object,” he airily acknowledged to his wife, Theodosia, that it was “a means of gratifying those I love.” He sought instead to be rich in the things money could buy. Refined, extravagant things: statuary, artwork, furniture, books. And conveyances especially, those fleet emblems of a man on the go. Like the New York elite before the war, Burr prided himself in flying about the city in “a nice, new, beautiful little chariot, very light, of an entirely new construction.”

  And he was very particular about where he lived. His first address at 3 Wall Street was one of the prizes of the city, considerably more splendid than Hamilton’s house down the street, and set off a competition between them, first latent, then manifest, as to who could live better. For the location and charm, Burr’s house was probably the most luxurious property in what had emerged as the city’s finest neighborhood. “Ver Plank’s house” he always emphasized, referring to the Dutch real estate baron who’d built it—and whom he would soon claim as a client. At 115 feet, it had the largest frontage on that section of Wall Street. As Burr’s finances improved, he moved the family into a “more spacious” place on Little Queen Street and then to 4 Broadway before he finally found his dream house, Richmond Hill, at the end of the decade.

  In those rocky postwar years, many of the country’s first citizens, from Washington and Jefferson on down, were seriously overextended; Hamilton, of course, was no exception, even as he rose to take charge of the nation’s finances as treasury secretary. But Burr seems to have gone into debt the most steeply, in 1785, shortly after he came to the city, when he started negotiating his first loans from family and friends to stay afloat. For the rest of his life, despite the assertions familiar to every chronic debtor that this was the year he would not just balance accounts but grow positively rich, Burr sank ever deeper into the mire of insolvency, moving on to more loans at higher amounts from an ever greater and ever wider variety of people—friends, relations, clients—that turned New York into a hell of lenders seeking to dig a hand into his billfold pocket.

  He complained to a political friend, New York congressman Peter Van Gaasbeck, in the 1790s that he was “in the hands of usurers.” But then, Gaasbeck was too, and hoped that Burr might free him. But Burr replied that he was in a worse way than Gaasbeck could imagine: “I have been ten days endeavoring to raise the pitiful sum of 500 dolrs without success and have now a note laying over in the Bank at NY for Want of it,” he complained. “I should not trouble you with these details but that it must appear very singular to you that a man of my large possessions and reputed Wealth should not have a few thousand dollars to spare for a friend.” It was a truth that people had trouble grasping. General John Lamb, a Son of Liberty, had met the young Aaron Burr on the Plains of Abraham, where the American troops of Generals Montgomery and Arnold were massed ahead of the ill-fated Battle of Quebec, and was impressed by “the fire of his eye, and his perfect coolness.” When Lamb emerged as a man of means in the 1780s, Burr saw a soft touch; in two years, he’d lightened the general of forty thousand dollars before Lamb said his first timid word about repayment. Realizing a grand gesture was needed, Burr assured the general he’d provide the money forthwith by selling the only valuable asset he could—all his furnishings at Richmond Hill, a desperate measure surely, as it would leave his palace an empty box of blank walls and bare floors. Burr did indeed sell every stick of furniture in the house. But that netted scarcely four thousand dollars, and Burr retained the proceeds for other expenses, never passing a nickel to his creditor. A swarm of creditors descended on Lamb, bent on sending him to the hell of debtors’ prison for their satisfaction. To his credit, Burr performed some legal maneuvers to save Lamb from such cruelty, but he never did repay him.

  In his desperation, Burr did what most of the New York elite did when they came up short. He engaged in land speculation himself, most of it in western New York. He bought with borrowed money, requiring payments he couldn’t make until the land was sold, often at a loss.* By the end of the century, when he was on the verge of the vice presidency, his only possession of any value was Richmond Hill, but that was fully mortgaged and devoid of furnishings. A year or two later, Alexander Hamilton wrote a friend that Burr owed “about 80,000 Dollars,” or about eight years’ legal salary. Hamilton was always aware of such things.

  BUT BURR DID have a larger ambition, one that went beyond conspicuous
consumption. If Hamilton busied himself in these years creating the American nation, Burr was establishing his own little country of seven, a monarchy with Burr himself as the all-powerful king; his brilliant but ailing wife, Theodosia, as his queen; and his sparkling daughter, born in 1784 and the other jewel of his existence, also named Theodosia, as the crown princess. The five stepchildren whom Burr had inherited from Theodosia’s marriage to the late Lieutenant Colonel Prevost were young courtiers. He put the boys, Frederick and Bartow, to work in his law office and often brought one of them on his travels as a kind of roving amanuensis. Burr had hoped for a larger family still, but Theodosia delivered two stillborns and a daughter, Sally, who died in infancy. Burr was traveling at the time of the tiny girl’s death and suspected she’d died only because his wife, not wanting to distress him, had stopped mentioning her in her letters.

  The love of Burr and his wife, Theodosia, burns through their letters. Alive, impassioned, sensual, their marriage must be the most total union of all the political matches of the day, easily eclipsing the forced and stylized raptures of Hamilton for his prim Betsey, although she doted ardently back. Rather, in its swoop and abandon, it evokes the Romantics of later years, the two Shelleys or Byron and Caroline Lamb. Burr’s writing might have, as he said, a “natural bluntness,” and neither he nor Theodosia shrank from reality, but rather both spoke their minds clearly and forcefully, with a keenness for each other on every page, even in the irritable passages. These were not infrequent, as Burr was off chasing money he loathed, leaving Theodosia home to manage a household that overwhelmed her. Nonetheless, after Theodosia mentioned the exquisite pleasure of the gentle caress of pooled water on her hands, Burr could scarcely contain himself. “It kept me awake a whole night, and led to a train of thoughts and sensations which cannot be described.” Theodosia compared her sexual sensations to those of an opium eater. “Love in all its delirium hovers about me,” she gushed. “Like opium, it lulls me to soft repose!”