Throughout his career, Hamilton was outspoken to a fault, while Burr was a man of ingrained secrecy. He gloried in his sphinxlike reputation and once described himself thus in the third person: “He is a grave, silent, strange sort of animal, inasmuch that we know not what to make of him.”23 As a politician, Burr usually spoke to one person at a time and then in confidence. Starting in college, he wrote coded letters to his sister and classmates and never entirely discarded the self-protective habit. Nor did he commit ideas to paper. Senator William Plumer remarked, “Burr’s habits have been never to trust himself on paper, if he could avoid it, and when he wrote, it was with great caution.”24 As Burr once warned his law clerk, “Things written remain.”25 This caution reflected Burr’s principal quality as a politician: he was a chameleon who evaded clear-cut positions on most issues and was a genius at studied ambiguity. In his wickedly mordant world, everything was reduced to clever small talk, and he enjoyed saying funny, shocking things. “We die reasonably fast,” he wrote during a yellow-fever outbreak in New York. “But then Mrs. Smith had twins this morning, so the account is even.”26 By contrast, Hamilton’s writings are so earnest that one yearns for some frivolous chatter to lighten the mood.
It is puzzling that Aaron Burr is sometimes classified among the founding fathers. Washington, Jefferson, Madison, Adams, Franklin, and Hamilton all left behind papers that run to dozens of thick volumes, packed with profound ruminations. They fought for high ideals. By contrast, Burr’s editors have been able to eke out just two volumes of his letters, many full of gossip, tittle-tattle, hilarious anecdotes, and racy asides about his sexual escapades. He produced no major papers on policy matters, constitutional issues, or government institutions. Where Hamilton was often more interested in policy than politics, Burr seemed interested only in politics. At a time of tremendous ideological cleavages, Burr was an agile opportunist who maneuvered for advantage among colleagues of fixed political views. Hamilton asked rhetorically about Burr, “Is it a recommendation to have no theory? Can that man be a systematic or able statesman who has none? I believe not.”27 In a still more severe indictment, Hamilton said of Burr, “In civil life, he has never projected nor aided in producing a single measure of important public utility.”28
Burr’s failure to make any notable contribution in public policy is mystifying for such a bright, literate man. He was an omnivorous reader. The records of the New York Society Library show that in 1790 Burr read nine consecutive volumes of Voltaire. He then spent a year and a half poring over all forty-four volumes of Modern Universal History. How many men at the time both read and ardently recommended Mary Wollstonecraft’s feminist tract, A Vindication of the Rights of Woman? “Be assured,” he told his educated wife, Theodosia, “that your sex has in her an able advocate. It is, in my opinion, a work of genius.”29 Yet this same Burr could take cruel swipes at his wife, responding to one of her letters with the acid remark that her note had been “truly one of the most stupid I had ever the honour to receive from you.”30
If not a deep thinker as a politician, Burr was a proficient lawyer who vied with Hamilton for standing at the New York bar. He knew that Hamilton was the better orator, despite his sometimes windy bombast. He also said that anyone who tried to compete with Hamilton on paper was lost.31 Nevertheless, some of Burr’s associates thought he was the superior lawyer, a man who went straight to the nub of the matter. “As a lawyer and as a scholar Burr was not inferior to Hamilton,” insisted General Erastus Root. “His reasoning powers were at least equal. Their modes of argument were very different....I used to say of them, when they were rivals at the bar, that Burr would say as much in half an hour as Hamilton in two hours. Burr was terse and convincing, while Hamilton was flowing and rapturous.”32 Hamilton smothered opponents with arguments, while Burr resorted to cunning ruses and unexpected tricks to carry the day.
Though Hamilton appreciated that Burr could be resourceful in court, he found something empty beneath the surface. “It is certain that at the bar he is more remarkable for ingenuity and dexterity than for sound judgment or good logic,” he said.33 On another occasion, Hamilton elaborated on this critique: “His arguments at the bar were concise. His address was pleasing, his manners were more—they were fascinating. When I analyzed his arguments, I could never discern in what his greatness consisted.”34 Hamilton venerated the law, while Burr often seemed mildly bored and cynical about it. “The law is whatever is successfully argued and plausibly maintained,” he stated.35
That the competition between Hamilton and Burr originated in their early days in legal practice is confirmed by a tale told by James Parton, an early Burr biographer. The first time that the two men jointly defended a client, the question came up as to who would speak first and who would sum up. Protocol stipulated that the lead attorney would do the summation, and Hamilton wished to be the one. Burr was so offended by this patent vanity that in his opening speech he tried to anticipate all the points that Hamilton would likely make. Apparently, he was so effective at this that Hamilton, embarrassed, had nothing to say at the end. If the story is true, it was one of the few times that Alexander Hamilton was ever left speechless.36
As a New York lawyer, Hamilton was well positioned to help the country negotiate the passage from the rosy flush of revolution to the sober rule of law. The management of the peace, he knew, would be no less perilous a task than the conduct of the war. Could the fractious tendencies engendered by years of fighting be channeled in constructive directions? The Revolution had unified sharply disparate groups. Without the bonds of wartime comradeship, would the divisive pulls of class, region, and ideology tear the new country apart?
These questions took on special urgency in New York, the former citadel of the British Army. Even before the war, the enthusiasm for revolution had often seemed more tepid in New York than elsewhere, and the state had been occupied by British forces longer than any other. Hamilton knew that many New Yorkers had been fence-sitters or outright Tories during the war and regretted to see the British depart. To Robert Morris, Hamilton surmised of New Yorkers that at the war’s outbreak “near one half of them were avowedly more attached to Great Britain than to their liberty.... [T]here still remains I dare say a third whose secret wishes are on the side of the enemy.”37
Many patriots found it hard to sympathize with the Loyalists, who were often well-to-do Anglican merchants and members of the old social elite. To aggravate matters, New York City had witnessed many British atrocities. Hordes of American soldiers had been incarcerated aboard lice-ridden British prison ships anchored in the East River. A staggering eleven thousand patriots had perished aboard these ships from filth, disease, malnutrition, and savage mistreatment. For many years, bones of the dead washed up on shore. How could New Yorkers forgive such unspeakable deeds? During Hamilton’s tour of the city in August 1783, street-corner scuffles were already commonplace as returning veterans demanded back rent or damage awards from residents who had occupied their properties during the war. For many patriots, the Tories were traitors, pure and simple, and they would fight anyone who sought to stop them from exacting revenge.
Alexander Hamilton became that brave, unfortunate target. His motives for such martyrdom have long stirred debate. Cynics scoffed that he had acquired a long list of rich Loyalist clients and peddled his soul for British gold. Another theory portrayed him as the pawn of patriotic landowners, who dreaded an upsurge of postwar radicalism and wanted to make common cause with conservative Tories. After all, if the patriots could pounce on Tory estates, might not their own fiefdoms be next? Many Hudson River grandees had enjoyed social and business contacts with wealthy Loyalists before the war and viewed them as potential allies in the postwar era. And Hamilton did indeed later forge an alliance of progressive landowners and former Tories into the nucleus of the Federalist party in New York.
The full truth of Hamilton’s motivation for defending loyalists is complex. He thought America’s character would be defined by
how it treated its vanquished enemies, and he wanted to graduate from bitter wartime grievances to the forgiving posture of peace. Revenge had always frightened him, and class envy and mob violence had long been his bugaboos. There were also economic reasons for his stand. He regretted the loss of capital siphoned off by departing Tories, and feared the sacrifice of trading ties vital to New York’s future as a major seaport. He also maintained that the nation’s survival depended upon support from its propertied class, which was being hounded, spat upon, and booted from New York.
Hamilton’s crusade on behalf of injured Loyalists was also spurred by foreignpolicy concerns. With the war over, he craved American respectability in Europe. “The Tories are almost as much pitied in these countries as they are execrated in ours,” John Jay advised him from France. “An undue degree of severity towards them would therefore be impolitic as well as unjustifiable.”38 For Hamilton, the anti-Tory legislation in New York flouted the peace treaty with Britain, which stipulated that Congress should “earnestly recommend” to state legislatures that they make restitution for seized Tory property and refrain from future confiscations.39 The treatment of the Tories sensitized Hamilton to the extraordinary danger of allowing state laws to supersede national treaties, making manifest the need for a Constitution that would be the supreme law of the land. For him, the vendetta against New York’s Tories threatened the whole political, economic, and constitutional edifice that he visualized for America.
During the war, the New York legislature had passed a series of laws that stripped Tories of their properties and privileges. The 1779 Confiscation Act provided for the seizure of Tory estates, and the 1782 Citation Act made it difficult for British creditors to collect money from republican debtors. In March 1783, the legislature enacted the statute that most engrossed Hamilton: the Trespass Act, which allowed patriots who had left properties behind enemy lines to sue anyone who had occupied, damaged, or destroyed them. Other laws barred Loyalists from professions, oppressed them with taxes, and robbed them of civil and financial rights. Each of these acts had rabid constituencies. Those who had enriched themselves by buying Tory estates mouthed the rhetoric of liberty while profiting handsomely from their convictions. Revenge, greed, resentment, envy, and patriotism made for an inflammatory mix.
By early 1784, the city had erupted in a wave of reprisals against Tories, who were tarred and feathered. The patriotic press clamored that those who had stayed behind British lines during the war should leave the city voluntarily or be banished. Fearing a Tory stampede, Hamilton did what he always did in emergencies: he took up his pen and protested the anti-Tory legislation in his first “Letter from Phocion,” published in The New-York Packet. In plucking the name Phocion from Plutarch, Hamilton cleverly alluded to his own life as well as to antiquity. Phocion was an Athenian soldier of murky parentage who came from another country and became an aide to a great general. Later, as a general himself, the iconoclastic Phocion favored reconciliation with the defeated enemies of Athens. In the essay, Hamilton said that, as a revolutionary veteran, he had “too deep a share in the common exertions of this revolution to be willing to see its fruits blasted by the violence of rash or unprincipled men, without at least protesting against their designs.”40 He railed against the baleful precedent that would be set if the legislature exiled an entire category of people without hearings or trials. If that happened, “no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.”41
Hamilton disputed the rhetoric of Tory baiters and said categorically that they were motivated by “little vindictive selfish mean passions.” To those who thought to profit by driving out Tories, Hamilton cautioned that this strategy would backfire on merchants and workmen alike. “To the trader they say, ‘You will be overborne by the large capitals of the Tory merchants’; to the mechanic, ‘Your business will be less profitable, your wages less considerable by the interference of Tory workmen.’ ” In fact, Hamilton noted, traders would be denied credit once extended to them by Tory merchants, and mechanics would find that temporarily higher wages either drew more mechanics to New York or slashed demand for their services, returning wages to their former level. Hamilton insisted that the now-chastened Tories would prove faithful friends of the new government; time was to validate his optimism.
Many people were shocked that Alexander Hamilton, Washington’s ex-adjutant, had taken up the Loyalist cause, even though Washington, too, preached mercy toward their former enemies. Hamilton’s actions abruptly altered his image. He was accused of betraying the Revolution and tarnishing his bright promise, and it took courage for him to contest such frenzied emotion. An anonymous poem appeared in the papers that lampooned Hamilton as “Lysander, once most hopeful child of fame.” The writer, a former admirer, lamented that after gallant wartime service Hamilton had stooped to become a lackey for the Loyalists:
Wilt thou LYSANDER, at this well earn’d height, Forget thy merits and thy thirst of fame; Descend to learn of law, her arts and slight, And for a job to damn your honor’d name!
In spite of Hamilton’s pleas for tolerance, the persecution of Tories intensified. At a huge meeting on the Common called by the revivified Sons of Liberty in March, speakers urged the massive crowd to expel all Tories by May 1 and asked the state legislature to approve a resolution denying restoration of their citizenship. Dismayed by this turmoil, Hamilton entered the lists again with a second “Letter from Phocion,” reminding his fellow citizens that actions taken now would reverberate into the future: “ ’Tis with governments as with individuals, first impressions and early habits give a lasting bias to the temper and character.” All mankind was watching the republican experiment: “The world has its eye upon America. The noble struggle we have made in the cause of liberty has occasioned a kind of revolution in human sentiment.”42 If America acted wisely, Hamilton believed, it had a historic opportunity to refute the skeptics of democracy and to doom despots everywhere. Unfortunately, the two Phocion articles did not halt the reign of vengeance. On May 12, 1784, the state legislature passed a law depriving most Loyalists of the vote for the next two years. For Hamilton, it was a horrifying breach of the peace treaty and boded ill for America’s domestic harmony and relations abroad. But he was not intimidated into silence. The feisty Hamilton always reacted to controversy with stubborn grit and a certain perverse delight in his own iconoclasm. He never shrank from a good fight.
By the second “Phocion” letter, Hamilton was defending a rich Tory in a celebrated lawsuit that showed just how far he would go to champion an unpopular cause. He was not a politician seeking popularity but a statesman determined to change minds. In 1776, a patriotic widow, Elizabeth Rutgers, had fled the British occupation of New York, abandoning her family’s large brewery and alehouse on Maiden Lane. As of then, the Rutgerses had parlayed their brewing fortune into a hundredacre estate. Two years later, a couple of British merchants, Benjamin Waddington and Evelyn Pierrepont, took over the brewery at the prompting of the British Army and appointed Joshua Waddington its supervisor. By that time, the property had been so thoroughly scavenged that it was “stripped of everything of any value except an old copper [vessel], two old pumps, and a leaden cistern full of holes,” Benjamin Waddington later testified.43 To refurbish and reopen the idle brewery, the new operators spent seven hundred pounds for a new storehouse, stable, and woodshed, and they paid rent to the British Army after 1780. On November 23, 1783, two days before Washington entered New York, a fire had incinerated the brewery, causing nearly four thousand pounds in losses for its wartime owners. Invoking the Trespass Act, Elizabeth Rutgers filed suit in the Mayor’s Court of
New York City, demanding eight thousand pounds in back rent from Joshua Waddington. As an aggrieved widow, Mrs. Rutgers aroused intense sympathy, and Hamilton was villainized as a turncoat and a crypto-Tory. But he thought the Rutgers lawsuit an ideal test case to challen
ge the legality of the Trespass Act. Unlike many Tory tenants who had vandalized properties during the war, Joshua Waddington had taken a crumbling property and restored it at considerable expense. When Mrs. Rutgers calculated the back rent Waddington owed her, she made no allowance for this investment. Also, Waddington had acted under the express authority of the British Army at a time when the city lay under martial law.
Arguments in Rutgers v. Waddington were presented on June 29, 1784, before five aldermen and two figures well known to Hamilton: Mayor James Duane and City Recorder (Vice Mayor) Richard Varick. John Adams described Duane as a man with “a sly, surveying eye, a little squint-eyed ...very sensible, I think, and very artful.”44 A smart lawyer of Irish ancestry, Duane had married into the Livingston family, corresponded with Hamilton during the Revolution, and then given him the run of his law library. Richard Varick, tall and dignified, with a bald pate and keen eyes, had been an aide to Philip Schuyler and Benedict Arnold and had been with Hamilton when Mrs. Arnold performed her mad scene on the Hudson. If the odds seemed stacked in Hamilton’s favor, especially with two competent cocounsels in Brockholst Livingston and Morgan Lewis, Mrs. Rutgers also fielded a distinguished legal team that included her nephew, Attorney General Egbert Benson, John Laurance, and Hamilton’s King’s College friend Robert Troup. Even in a crowd of six other outstanding lawyers, Hamilton gave a cogent exposition that “soared far above all competition,” said James Kent, then a law clerk for Benson. “The audience listened with admiration for his impassioned eloquence.”45