Alexander Hamilton - Ron Chernow (2005)
Chapter 10. A GRAVE, SILENT, STRANGE SORT OF ANIMAL
From the time he started out as a young lawyer in postwar New York, Hamilton presented a dashing figure in society. He was trim and stylish, though not showy in dress. His account books reflect a concern with fashion, as shown by periodic visits to a French tailor, and his sartorial elegance is confirmed in portraits. In one painting, he wears a double-breasted coat with brass buttons and gilt-edged lapels, his neck swathed delicately in a ruffled lace jabot. One French historian remarked, “He belonged to the age of manners and silk stockings and handsome shoe-buckles.”1 He was as fastidious as a courtier in caring for his reddish-brown hair, and his son James recorded his daily ritual with the barber: “I recollect being in my father’s office in New York when he was under the hands of his hair-dress[er] (which was his daily course). His back hair was long. It was plaited, clubbed up, and tied with a black ribbon. His front hair was pomatumed [i.e., pomaded], powdered, and combed up and back from his forehead.”2 Many artists who painted Hamilton picked up the quiet smile that suffused his ruddy cheeks and shined in his close-set blue eyes, conveying an impression of mental keenness, inner amusement, and debonair insouciance. His strong, well-defined features, especially the sharply assertive nose and chin, made for a distinctive profile. Indeed, his family thought a profile—not a portrait—done by James Sharples the best likeness of him ever done.
Hamilton’s friends liked to rhapsodize his charm. His Federalist ally Fisher Ames was to eulogize his great capacity for friendship by saying that he was “so entirely the friend of his friends…that his power over their affections was entire and lasted through his life.”3 For Judge James Kent, who often rendered him in superlatives, Hamilton “was blessed with a very amiable, generous, tender, and charitable disposition, and he had the most artless simplicity of any man I ever knew. It was impossible not to love as well as respect and admire him.”4 Yet close observers also detected something contradictory in the way the mobile features shifted quickly from gravity to mirth. Boston lawyer William Sullivan noted the contrasting expressions of his face: “When at rest, it had rather a severe and thoughtful expression, but when engaged in conversation, it easily assumed an attractive smile.”5 This mixture of the grave and the playful was the very essence of his nature. His grandson wrote that Hamilton’s personality was “a mixture of aggressive force and infinite tenderness and amiability.”6
In his early years, Hamilton drew much of his social sustenance from the small, clubby circle of New York lawyers. The New York Directory for 1786 listed approximately forty people under the rubric “Lawyers, Attorneys, and Notary-Publics.” The departure of many Tory lawyers had cleared the path for capable, ambitious men in their late twenties and early thirties, including Burr, Brockholst Livingston, Robert Troup, John Laurance, and Morgan Lewis. They were constantly thrown together in and out of court. Much of the time they rode the circuit together, often accompanied by the judge, enduring long journeys in crude stagecoaches that jolted along bumpy upstate roads. They stayed in crowded, smoky inns and often had to share beds with one another, creating a camaraderie that survived many political battles.
To assist with a caseload of mostly civil but also criminal work, Hamilton struck a partnership with Balthazar de Haert, who was either his colleague or his office manager for three years. Though he had just passed the bar himself, Hamilton was swamped with requests to coach aspiring lawyers, and he trained the sons of many prominent men, including John Adams. Hamilton struck his young charges as an exacting boss. One early trainee, Dirck Ten Broeck, recruited straight from Yale, wrote a former classmate a mournful letter about clerking for the little dynamo: “But now, instead of all the happiness once so near to view, I am deeply engaged in the study of law, the attaining of which requires the sacrifice of every pleasure [and] demands unremitted application…. [H]eavy for the most part have been the hours to me.”7
Notwithstanding later conspiracy talk that he had stashed away bribes from the British, Hamilton seemed relatively indifferent to money, and many contemporaries expressed amazement at his reasonable fees. The duc de La Rochefoucauld-Liancourt commented, “The lack of interest in money, rare anywhere, but even rarer in America, is one of the most universally recognized traits of Mr. Hamilton, although his current practice is quite lucrative. I’ve heard his clients say that their sole quibble with him is the modesty of the fees that he asks.”8 Robert Troup said that Hamilton rejected fees if they were larger than he thought warranted and generally favored arbitration or amicable settlements in lieu of lawsuits.
Hamilton’s son James related two incidents that show his father’s legal scruples. In one case, the executor of a Long Island estate tried to retain Hamilton to defend him against some heirs who were suing him. To soften him up, the man pushed a pile of gold pieces across Hamilton’s writing table before stating his case. When he was done, “Hamilton pushed the gold back to him and said, ‘I will not be retained by you in such a cause. Take your money, go home, and settle without delays with the heirs, as in justice you are bound to do.’”9 Another time, he flatly refused the business of a certain Mr. Gouverneur after learning he had made disparaging remarks about the “attorneylike” way somebody had padded his bill. In a caustic note, Hamilton lectured Gouverneur that his behavior “cannot be pleasing to any man in the profession and [that it] must oblige anyone that has proper delicacy to decline the business of a person who professedly entertains such an idea of the conduct of this profession.”10
As a lawyer in a humming seaport and financial hub, Hamilton dealt with innumerable suits over bills of exchange and maritime insurance. He also gravitated toward cases that established critical points of constitutional law. It would be a mistake, however, to think of Hamilton only as a cloud-wreathed, Olympian lawyer. He sometimes represented poor people in criminal cases on a pro bono basis or was paid with just a barrel of ham. He had an incorrigible weakness for aiding women in need. In December 1786, he defended a spinster, Barbara Ransumer, who was indicted for stealing fans, lace, and other costly items. “I asked her what defence she had,” Hamilton recollected. “She replied that she had none.”11 Unlike many modern lawyers, Hamilton represented clients only if he believed in their innocence. But he disobeyed his personal rule with Ransumer. In a speech dripping with shameless pathos, he managed to persuade the jury of her innocence. “Woman is weak and requires the protection of man,” Hamilton summed up. “And upon this theme, I attempted to awaken the sympathies of the jury and with such success that I obtained a verdict of ‘not guilty.’ I then determined that I would never again take up a cause in which I was convinced I ought not to prevail.”12 That same year, Hamilton represented George Turner, who was indicted as a “dueller, fighter, and disturber of the peace,” again suggesting that Hamilton was perhaps less averse to dueling than he later intimated.13
Hamilton was regarded as one of the premier lawyers of the early republic and was certainly preeminent in New York. Judge Ambrose Spencer, who watched many legal titans pace his courtroom, pronounced Hamilton “the greatest man this country ever produced…. In power of reasoning, Hamilton was the equal of [Daniel]Webster and more than this could be said of no man. In creative power, Hamilton was infinitely Webster’s superior.”14 A no less glowing encomium came from Joseph Story, a later Supreme Court justice: “I have heard Samuel Dexter, John Marshall, and Chancellor [Robert R.] Livingston say that Hamilton’s reach of thought was so far beyond theirs that by his side they were schoolboys—rush tapers before the sun at noonday.”15
Whence the source of this legendary reputation? Hamilton had a taste for courtroom theatrics. He had a melodious voice coupled with a hypnotic gaze, and he could work himself up into a towering passion that held listeners enthralled. In January 1785, jurist James Kent watched Hamilton square off against Chancellor Robert R. Livingston, who was representing himself in a lawsuit claiming additional land south of his vast estate on the Hudson. (The post of chancellor was one of the top judicial positions in the state.) A member of New York’s most powerful family, Livingston was tall and confident and moved with the natural grace of a born aristocrat. In comparison, Hamilton’s style seemed almost feverish. “He appeared to be agitated with intense reflection,” Kent recalled. “His lips were in constant motion and his pen rapidly employed during the Chancellor’s address to the court. He rose with dignity and spoke for perhaps two hours in support of his motion. His reply was fluent and accompanied with great earnestness of manner and emphasis of expression.”16
In speech no less than in writing, Hamilton’s fluency frequently shaded into excess. Hamilton had the most durable pair of lungs in the New York bar and could speak extemporaneously in perfectly formed paragraphs for hours. But it was not always advantageous to have a brain bubbling with ideas. Robert Troup complained that the prolix Hamilton never knew when to stop: “I used to tell him that he was not content with knocking [his opponent] in the head, but that he persisted until he had banished every little insect that buzzed around his ears.”17 Troup also speculated that Hamilton was so distracted by public matters later on that he never had the chance to become deeply read in the law. This was probably true. On the other hand, the myriad claims on his time forced Hamilton to avoid trivia and plumb the basic principles of a case. “With other men, law is a trade, with him it was a science,” said Fisher Ames.18 He forced other lawyers to fight on his turf, starting out with a painstaking definition of terms and then reciting a long string of precedents. He brought into court lengthy lists of legal authorities and Latin quotations he wished to cite. His sources were varied, esoteric, and unpredictable. His legal editor, Julius Goebel, Jr., has observed: “Hamilton’s reading was not confined to English law, for in addition to citations to basic Roman law texts we find him proffering passages from exotics like the Frenchman Domat, the Dutchman Vinnius, and the Spaniard Perez.”19
A good-natured legal rivalry arose between Alexander Hamilton and Aaron Burr. Sometimes they worked on the same team, more often on opposing sides. Hamilton did not drag political feuds into dinner parties and drawing rooms, and so he mingled with Burr cordially. Later on, Hamilton said that in their early relationship they had “always been opposed in politics but always on good terms. We set out in the practice of the law at the same time and took opposite political directions. Burr beckoned me to follow him and I advised him to come with me. We could not agree.”20 Burr’s friend Commodore Thomas Truxtun verified this rapport in nonpolitical matters: “I always observed in both a disposition when together to make time agreeable…at the houses of each other and of friends.”21 Burr and Hamilton supped at each other’s homes, and Burr’s wife, Theodosia, visited Eliza. In 1786, the two men helped to finance the Erasmus Hall Academy in Flatbush, the forerunner of Erasmus Hall High School, today the oldest secondary school in New York State.
Many weird coincidences stamped the lives of Hamilton and Burr, yet their origins were quite dissimilar. Burr embodied the old aristocracy, such as it then existed in America, and Hamilton the new meritocracy. Born on February 6, 1756, one year after Hamilton, Burr boasted an illustrious lineage. His maternal grandfather was Jonathan Edwards, the esteemed Calvinist theologian and New England’s foremost cleric. Edwards’s third daughter, Esther, married the Reverend Aaron Burr, a classical scholar and theologian who became president of Princeton.
The infant Burr was born into the most secure and privileged of childhoods, yet it was steeped in horror. At the time of Burr’s birth, the college was moving from Newark to Princeton, and in late 1756 the family took up residence in the new president’s house. Then came a nightmarish chain of events. In September 1757, Aaron Burr, Sr., died at forty-two and was replaced five months later as president by his father-in-law, Jonathan Edwards. Soon after arriving, Edwards was greeted with the news that his own father, a Connecticut clergyman, had died. Princeton had recently been struck by smallpox, which Edwards promptly contracted by inoculation, dying two weeks after settling in. Then Burr’s mother, Esther, came down with smallpox and died two weeks after her father. Dr. William Shippen took Burr and his orphaned sister into his Philadelphia home. When Grandmother Edwards came to reclaim the children, she contracted virulent dysentery and died shortly afterward. Thus, by October 1758, two-year-old Aaron Burr had already lost a mother, a father, a grandfather, a grandmother, and a great-grandfather. Though he lacked any memory of these gruesome events, Burr was even more emphatically orphaned than Hamilton.
Raised in Stockbridge, Massachusetts, and Elizabethtown, New Jersey, by his uncle, the Reverend Timothy Edwards, Burr attended the same Presbyterian academy that later educated Hamilton. Entering Princeton at thirteen, he developed into a first-rate scholar and delivered a commencement speech entitled “Building Castles in the Air,” in which he declaimed against frittering away energy on idle dreams. Burr studied law with his brother-in-law, the Connecticut jurist Tapping Reeve, then fought courageously in the Revolution.
Like Hamilton, the impeccably tailored Burr made an elegant impression, with his lustrous dark eyes, full lips, and boldly arched eyebrows. He was witty, urbane, and unflappable and had a mesmerizing effect on men and women alike. Despite his later courtship of the Jeffersonians, Burr never shed a certain patrician hauteur, epicurean tastes, and a faint disdain for moneymaking activities. He believed that through self-control he could learn to control others. With his impervious aplomb, he was a better listener than talker. Hamilton was easy to ruffle, whereas Burr hid his feelings behind an enigmatic facade. When faced with confessions of wrongdoing, Burr said coolly, “No apologies or explanations. I hate them.”22 Unlike Hamilton, he could store up silent grievances over extended periods.
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 foreign-policy 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 hundred-acre 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 challenge 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
As he strode about James Duane’s chamber, Hamilton articulated fundamental concepts that he later expanded upon in The Federalist Papers, concepts central to the future of American jurisprudence. In renting the property to Waddington, he declared, the British had abided by the law of nations, which allowed for the wartime use of property in occupied territory. New York’s Trespass Act violated both the law of nations and the 1783 peace treaty with England, which had been ratified by Congress. In urging the court to invalidate the Trespass Act, Hamilton expounded the all-important doctrine of judicial review—the notion that high courts had a right to scrutinize laws and if necessary declare them void. To appreciate the originality of this argument, we must recall that the country still lacked a federal judiciary. The state legislatures had been deemed the most perfect expression of the popular will and were supposed to possess supreme power. Mrs. Rutgers’s lawyers asserted state supremacy and said congressional action could not bind the New York legislature. At bottom, Rutgers v. Waddington addressed fundamental questions of political power in the new country. Would a treaty ratified by Congress trump state law? Could the judiciary override the legislature? And would America function as a true country or a loose federation of states? Hamilton left no doubt that states should bow to a central government: “It must be conceded that the legislature of one state cannot repeal the law of the United States.”46
When Duane delivered his verdict in mid-August, he commended Hamilton and the other lawyers, applauding the arguments on both sides as “elaborate and the authorities numerous.”47 He handed down a split verdict that required Waddington to pay back rent to Rutgers but only for the period before he started paying rent to the British Army in 1780. Given the pent-up emotion surrounding the case, Hamilton advised his client to negotiate a compromise with Rutgers, who settled for about eight hundred pounds—much less than the eight thousand pounds she had initially sought. It was a smashing triumph for Hamilton, who had upheld the law of nations. A mere nine months after Evacuation Day, he had won a real if partial victory for a rich British subject against a patriotic widow.
Hamilton knew the case would be a boon to his legal practice, which went full throttle in defending Tories. During the next three years, he handled forty-five cases under the Trespass Act and another twenty under the Confiscation and Citation Acts. His victory also brought predictable notoriety in its wake. The radical press fulminated against him for giving aid to “the most abandoned…scoundrels in the universe,” and rumors floated about of a cabal intent upon assassinating him. The scandalmongering journalist James Cheetham later observed of Hamilton “that a great majority of the loyalists in the state of New York owe the restoration of their property solely to the exertions of this able orator.”48
The tone of politics had rapidly grown very harsh. Some poison was released into the American political atmosphere that was not put back into the bottle for a generation. As after any revolution, purists were vigilant for signs of ideological backsliding and departures from the one true faith. The 1780s and 1790s were to be especially rich in feverish witch hunts for traitors who allegedly sought to reverse the verdict of the war. For the radicals of the day, revolutionary purity meant a strong legislature that would overshadow a weak executive and judiciary. For Hamilton, this could only invite legislative tyranny. Rutgers v. Waddington represented his first major chance to expound the principle that the judiciary should enjoy coequal status with the other two branches of government.
If Rutgers v. Waddington made Hamilton a controversial figure in city politics in 1784, the founding of the Bank of New York cast him in a more conciliatory role. The creation of New York’s first bank was a formative moment in the city’s rise as a world financial center. Banking was still a new phenomenon in America. The first such chartered institution, the Bank of North America, had been started in Philadelphia in 1781, and Hamilton had studied its affairs closely. It was the brainchild of Robert Morris, and its two biggest shareholders were Jeremiah Wadsworth and Hamilton’s brother-in-law John B. Church. These two men now cast about for fresh outlets for their capital. In 1783, John Church sailed for Europe with Angelica and their four children to settle wartime accounts with the French government. In his absence, Church named Hamilton as his American business agent, a task that was to consume a good deal of his time in coming years.
When Church and Wadsworth deputized him to set up a private bank in New York, Hamilton warmed to it as a project that could help to rejuvenate New York commerce. He was stymied by a competing proposal from Robert R. Livingston to set up a “land bank”—so called because the initial capital would be pledged mostly in land, an idea Hamilton derided as a “wild and impracticable scheme.”49 Since land is not a liquid asset and cannot be converted into ready cash in an emergency, Hamilton favored a more conservative bank that would conduct business exclusively in notes and gold and silver coins.
When Livingston solicited the New York legislature for a charter, the tireless Hamilton swung into action and mobilized New York’s merchants against the effort. He informed Church that he had lobbied “some of the most intelligent merchants, who presently saw the matter in a proper light and began to take measures to defeat the plan.”50 Hamilton was more persuasive than he realized, and a delegation of business leaders soon approached him to subscribe to a “money-bank” that would thwart Livingston’s land bank. “I was a little embarrassed how to act,” Hamilton confessed sheepishly to Church, “but upon the whole I concluded it best to fall in with them.”51 Instead of launching a separate bank, Hamilton decided to represent Church and Wadsworth on the board of the new bank. Ironically, he held in his own name only a single share of the bank that was long to be associated with his memory.
On February 23, 1784, The New-York Packet announced a landmark gathering: “It appearing to be the disposition of the gentlemen in this city to establish a bank on liberal principles…they are therefore hereby invited to meet tomorrow evening at six o’clock at the Merchant’s Coffee House, where a plan will be submitted to their consideration.”52 At the meeting, General Alexander McDougall was voted the new bank’s chairman and Hamilton a director. Snatching an interval of leisure during the next three weeks, Hamilton drafted, singlehandedly, a constitution for the new institution—the sort of herculean feat that seems almost commonplace in his life. As architect of New York’s first financial firm, he could sketch freely on a blank slate. The resulting document was taken up as the pattern for many subsequent bank charters and helped to define the rudiments of American banking.
In the superheated arena of state politics, the bank generated fierce controversy among those upstate rural interests who wanted a land bank and believed that a money bank would benefit urban merchants to their detriment. Within the city, however, the cause of the Bank of New York made improbable bedfellows, reconciling radicals and Loyalists who were sparring over the treatment of confiscated wartime properties. McDougall was a certified revolutionary hero, while the Scottish-born cashier, the punctilious and corpulent William Seton, was a Loyalist who had spent the war in the city. In a striking show of bipartisan unity, the most vociferous Sons of Liberty—Marinus Willett, Isaac Sears, and John Lamb—appended their names to the bank’s petition for a state charter. As a triple power at the new bank—a director, the author of its constitution, and its attorney—Hamilton straddled a critical nexus of economic power.
One of Hamilton’s motivations in backing the bank was to introduce order into the manic universe of American currency. By the end of the Revolution, it took $167 in continental dollars to buy one dollar’s worth of gold and silver. This worthless currency had been superseded by new paper currency, but the states also issued bills, and large batches of New Jersey and Pennsylvania paper swamped Manhattan. Shopkeepers had to be veritable mathematical wizards to figure out the fluctuating values of the varied bills and coins in circulation. Congress adopted the dollar as the official monetary unit in 1785, but for many years New York shopkeepers still quoted prices in pounds, shillings, and pence. The city was awash with strange foreign coins bearing exotic names: Spanish doubloons, British and French guineas, Prussian carolines, Portuguese moidores . To make matters worse, exchange rates differed from state to state. Hamilton hoped that the Bank of New York would counter all this chaos by issuing its own notes and also listing the current exchange rates for the miscellaneous currencies.
Many Americans still regarded banking as a black, unfathomable art, and it was anathema to upstate populists. The Bank of New York was denounced by some as the cat’s-paw of British capitalists. Hamilton’s petition to the state legislature for a bank charter was denied for seven years, as Governor George Clinton succumbed to the prejudices of his agricultural constituents who thought the bank would give preferential treatment to merchants and shut out farmers. Clinton distrusted corporations as shady plots against the populace, foreshadowing the Jeffersonian revulsion against Hamilton’s economic programs. The upshot was that in June 1784 the Bank of New York opened as a private bank without a charter. It occupied the Walton mansion on St. George’s Square (now Pearl Street), a three-story building of yellow brick and brown trim, and three years later it relocated to Hanover Square. It was to house the personal bank accounts of both Alexander Hamilton and John Jay and prove one of Hamilton’s most durable monuments, becoming the oldest stock traded on the New York Stock Exchange.